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II. Legal grounds for and the practice of detaining a person

[1]

1. Statistics of detentions and detentions in custody

After the adoption of the Code of Criminal Procedure of Ukraine in 2012, the grounds for detaining a suspect by an authorized officer without a warrant have come into compliance with the Constitution of Ukraine. The suspect may be detained while committing a crime or attempting to commit it, and if immediately after the crime a witness or set of obvious signs indicate that this person has just committed a crime (Part 1 Art. 208 of CCP of Ukraine).

According to the European Court of Human Rights (ECHR), the moment of detention is an important aspect of the legal regulation of the detention procedure. Art. 209 of the CCP of Ukraine determines it as follows: “An individual is considered to be detained if he/she, with the use of force or through obedience to the order, has to stay next to the authorized official or in the premises specified by the authorized official”.

A positive practical result of validity of the CCP in 2012 is a considerable reduction of official detentions on suspicion of committing a crime. According to the High Specialized Court of Ukraine for Civil and Criminal Cases (HSCU), in 2011, the courts reviewed 45,700 detention motions and 39,700 or 87 % of them were overruled. In 2013 investigative judges of general jurisdiction courts examined 21,200 detentions and 17,800 or nearly 84 % were overruled as well[2] (according to the data of the Supreme Court of Ukraine (SCU) 20,900 motions; 17,800 and 85.1 %).[3] At the same time, according to the Prosecutor General’s Office of Ukraine (GP) during this period 17,373 detention motions were submitted, including 16,620 in criminal proceedings of the Interior.[4]

At the same time according to the Main Investigation Department (MID) of MIAU, investigative bodies of internal affairs detained suspects while committing crimes without a decree from an investigating judge as provided for in Art. 208 of the CCP of Ukraine (detention by an authorized official): in 2013 — 13,916 people, during the first six months of 2014 — 6,364 people.

It strikes the eye that there is an obvious discrepancy between the data of the MID of MIAU and court statistics on the number of petitions filed in the courts regarding custody because detentions made by authorized officers of the Interior constitute the lion’s share of all detainees. However, the information on the total number of suspect detentions is not available on the official websites of Internal Affairs of Ukraine or the GP Ukraine.

According to the HSCU, during the first six months of 2014 the investigating judges of the courts examined 10,500 (10,300 — according to the SCU[5]) petitions on remaining in custody. Among them 8,500 or 81.7 % (82.9 %) were satisfied.[6] At the same time, according to the Prosecutor General’s Office of Ukraine, during this period 8,830 detention motions were submitted, including 8,449 in criminal proceedings of the Interior.[7]

According to the GP Ukraine, for the entire 12 months of 2014 pre-trial investigation bodies submitted to the investigating judges 18,149 applications for remaining in custody, including 16,633 applications in criminal proceedings of the Interior.[8]

Thus, the number of applications (submissions) on the most rigorous preventive measure gradually decreased by approximately 2.5 times after the CPC of Ukraine entered into force in 2012. It should be noted that in some way the statistics of 2014 have been affected by the lack of data from the Autonomous Republic of Crimea.

Accordingly, from January 1st 2011 through January 1st 2014, the total number of people held in institutions of the State Penitentiary Service of Ukraine decreased from 157,866 to 127,830.[9]

In addition to the obvious wrong numbers, the information provided by the MIAU also contains remarks that “the statistical reports regarding the number of applications for permission to detain a suspect, an accused for the purpose of its participation in consideration of a request for a preventive measure in custody as provided for Art. 188 of the CCP of Ukraine (Petition for permission to detain for the purpose of presence) in the courts as well as persons detained on suspicion of committing a crime by the authorized officials of the Interior on the grounds of a decree of an investigating judge, in accordance with Art. 191 of the CCP of Ukraine (Acts of authorized officers after detention on the grounds of a decree of an investigating judge of the court on permission to detain) are not provided by the Ministry of Internal Affairs”.

The situation with the data of the GP of Ukraine is even stranger. Table 7 “Detention of suspects, choice of preventive measure” of the Report on the work of pre-trial investigative bodies (form No. 1-SL) for the 12 months of 2014,[10] is available on the web-site of the Prosecutor General’s Office of Ukraine and contains the line “Detention of a person according to the procedure provided for in Art. 207, 208 of the CPC of Ukraine”. Consequently, while preparing statistical reports, law enforcement authorities do not differentiate between so-called “legal” detentions by unauthorized persons as provided by Art. 207 of the CCP of Ukraine and detentions without a decree of an investigating judge by authorized persons.

2. Violations of the law when detaining suspects
in the process of committing crimes

Despite the positive changes in the legislative regulation on detention, the practice of detentions by law enforcement authorities has not changed considerably and now such violations of the law as unacknowledged detention, delay in registration of detention, detention under a false pretext remain typical violations during detention.

In most cases, the protocol of detention is still to be drawn up by investigators, although employees of other departments, as a rule it is an operational department, are engaged in real detention. This situation leads to mistakes in the record of time and place of detention, as well as in the data on the authorized officers who made the detention. Thus, the time a person spends from the moment of his/her actual detention to the moment he/she is brought to judge increases.

Detention of persons by pre-trial investigation bodies who are considered to be “invited” or are “visitors” with the appropriate entries in books is still in practice. In such cases, if the protocol of detention was not draw up and a detainee was allowed to leave the premise of the law enforcement bodies where he/she was taken, from a legal point of view a detention did not take place.

In all these cases, an actually detained person without the official status of “suspects” was deprived of an opportunity to use the relevant procedural rights.

The UN Committee against Torture stated on the practice of non-recognized detention or detention with delay of its registration what is considered proper activity for Ukrainian law enforcement bodies (see below “Recommendations of the UN Committee against Torture”).

The existence of a serious problem detention practice is proven by the fact that information on such cases is not registered in the Unified Register of pre-trial investigations of criminal offenses related, directly or indirectly, to illegal detention:

— Known illegal detentions, booking, arrest or detention in custody (Art. 371 of the CC of Ukraine) — 0;

— Evidence given under compulsion (Art. 373 of the CC) — 0;

— Violation of the right to a defence (Art. 374 CC) — 0.[11]

Despite the great differences between the data of judicial statistics and the reporting data of the GP of Ukraine on the number of requests for detention on the basis of MID of MIAU there is every reason to state that the number of detentions of people suspected of committing a crime by authorized officers without a ruling from an investigating judge constitutes the majority of the total number of detainees during criminal proceedings.

At the same time pursuant to Paragraph 1 of Art. 208 of the CCP of Ukraine an authorized official has the right to detain a person without a warrant only in the following cases:

— The person was caught upon committing a criminal offense or making an attempt to commit it;

— If immediately after the crime was committed, an eye-witness, including the victim, or a group of obvious signs on the body, clothes or the scene indicates that this individual has just committed a crime.

Thus, pursuant to the provisions of Art. 29 of the Constitution of Ukraine the Code of Criminal Procedure of Ukraine authorizes respective officials to detain people without a court’s decision only if there is an urgent necessity to prevent or stop a crime or immediately after a crime was committed.

Practice shows us that the number of cases where a person was caught red-handed or attempting to commit a crime or immediately after a crime was committed constitutes a small part of the total number of crimes committed. According to the available data[12] in practice there is a difference in the interpretation of the terms “immediately after a crime was committed” and “but just committed a crime” which gives an opportunity for authorized officials to justify their actions relating to detaining persons suspected in its commitment more than a day after the crime was committed without a ruling from an investigating judge (court).

Thus, the majority of detainees suspected of a crime are detained without grounds provided by law.

3. Practice of law on detention in custody and extension of its action

In most cases, the courts (investigating judges) justify the detention of a person in custody as follows. They use a declaration of intern to cite the relevant provisions of §1 of Section 18 of the CCP of Ukraine, which are to be applied to choose a preventive measure and refer to the legal position of the ECHR or cite its decision on required grounds for application of this preventive measure without reference to a specific case that is considered. Then a judge (court) shall recite the risks stated in Art. 177 of the CCP of Ukraine (escape, destroy of evidences, repetition of crimes and other) and other circumstances which are to be taken into consideration while choosing a preventive measure.

So, instead of stating the exact circumstances that became grounds for the court (the investigating judge) to choose a preventive measure, in particular, detention, and the exact evidence confirming these circumstances, the ruling states what the Court (the investigating judge) should do in order to reasonably use this measure.

Usually courts (investigating judges) do not justify the conclusion about the necessity of detention by circumstances of the case, including evidence of the existence of certain risks, do not evaluate the circumstances to be considered when choosing a preventive measure, including the significance of available evidences of criminal offense and the circumstances that characterize a person, including their health. In many cases, the later circumstances are stated in the judgment without specifying the exact data taken into account by the court, such as: “The gravity of the committed crimes, age of the suspect, their health, family and financial status, type of activity, place of residence and others are taken into account”.[13]

The only factor that is always taken into account when choosing detention is the severity of the potential sentence for a person. This can be explained by the fact that there are minimal “thresholds” of punishment that threatens the person for a crime to use the preventive measure of detention (2 Art. 183 of CCP of Ukraine).

Pursuant to Paragraph 1 and 2 of Art. 194 of the CCP of Ukraine an investigating judge (court) cannot grant a motion of preventive measure in custody, if a prosecutor failed to prove the existence of the following circumstances:

1)  Reasonable suspicion;

2)  Grounds to believe in the existence of at least one of the risks;

3)  Insufficiency of less strict preventive measures.

Should any (reasonable) suspicion exist, the prosecutor is to provide the investigating judge with the respective evidence, if only because in this case it is necessary to draw up a respective service document, a notification of suspicion. As for the other two circumstances, as a rule they are not proven by the prosecutor, but it does not prevent the court (investigating judge) to take a decision on custody.

The ruling on detention in custody or extension of the terms of detention in custody often contains the opinion of the ECHR that the risk of concealment of the accused cannot be evaluated only on the grounds of the gravity of a potential sentence. However, in most cases the investigating judge provides no evidence of the existence of a risk that give grounds for pre-trial detention, due to their absence in a request to the investigator and prosecutor and in his/her oral explanations during consideration of the request by the investigating judge.

And now we have a paradoxical situation when the judge(s), referring in its decisions to the legal position of the ECHR, formally comply with Par. 5 of Article 9 of the CCP of Ukraine on the ECHR practice when applying the criminal procedure law of Ukraine, but in fact they adopt these decisions contrary to the practice of the ECHR, such as: “As the term of the ruling on extending the term of detention of the accused ends on January 3rd 2015, the court considers it appropriate and necessary to continue the detention of PERSON _1.

Detention of the accused, PERSON_1, in custody fully complies with the purpose for which this preventive measure is used, given the public interest, which, taking into account the presumption of innocence, justifies derogation from the principle of respect for individual freedom and does not contradicts the practice of the European Court of Human Rights and the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms. In particular, the legal opinions stated in Par. 35 of the ECHR judgment in the case “Letellier v. France”.[14]

At the end of 2014, the High Specialized Court of Ukraine for Civil and Criminal Cases (HSCU) heard and discussed information on case analysis of the use of procedural law concerning the choice of and extension of the term of detention by first-instance and appeal courts and issued a ruling (hereinafter-Analysis) by which it instructs to prepare a letter for practical use by appeal courts on the basis of the mentioned analytics. [15]

According to judicial statistics, as of July 1st, 2014, detention centres held 2,868 prisoners during more than 6 months who were attached to the courts, including 6 months to 1 year — 1,403 persons, from 1 year to 2 years — 807 persons, more than 2 years — 658 persons.

This analytics proves that the courts do not fully meet the requirements of the CCP as for periodic quality control over the need to use these measures, and the quality and validity of assessment materials that are the basis for their application. Typical violations of the CCP and legal opinions of the ECHR are:

1. Due to a lack of petitions during preliminary court hearings the first-instance courts extend the term of detention in custody without any reasons stated in a ruling by mentioning about it only in an operative part of the ruling that violates Art. 18 of the CCP “Preventive measures, detention of a person” and the practice of the ECHR which prohibits “automatic” extension of the term of detention in custody. In this regard, referring to the case “Kharchenko v.Ukraine” (decision as of February 10th, 2011) the Declaration contains the opinion that during preliminary court hearings the court is authorized to raise before the parties the issue of extending the term of detention in custody in the event of a lack of petitions from the parties. In any case, the court is not entitled to resolve this issue without complying with the proper hearing procedure and motivation of the adopted decision as long detention in custody without stating the respective grounds in the court’s decision is inconsistent with the principle of defence against abuse of power provided by Paragraph 1 of Art. 5 of the Convention.

2. Absence of the exact expiry of the ruling on extending the detention which in the event of failure to extend the term of detention, in particular, due to a delay in submitting the motion becomes an obstacle for release of the person from jail due to expiry of the ruling.

3. Violations while deciding on detention as a preventive measure and extending the detention, such as exceeding the maximum term of the detention due to incorrect calculation of the period of detention, especially when the month has more than 30 days, or as a result of calculating the period of the new ruling on the date of termination of the previous ruling.

4. Unreasonable ruling of the courts to extend the detention of the suspect, the accused in custody, which is one of the most frequent violations of human rights recognized by the ECHR in cases against Ukraine. In this regard the Plenum of the Supreme Court of Ukraine noted that this request must provide the circumstances indicating that the claimed risk is not lower or new risks justifying the detention appear. In many cases, courts rely solely on the legal qualification of the committed crime provided by the prosecution, which is insufficient for making a legal judgment. A court shall take into consideration the circumstances provided by Art. 178 of the CCP to evaluate the risks which together with the grounds stipulated by Art. 177 of the CCP may be general grounds to extend a detention term:

— Non-examination of the possibility of preventive measures alternative to detention, including bail is a violation of the requirements of Par. 3 of Part 1 of Art. 194 CCP of Ukraine and the position of the ECHR;

— “Collective” consideration of a request for extending detention, contrary to Part. 4 of Art. 184 of the CCP that the relevant request is submitted separately for each person;

— A lack of reasoning in its decision is a violation of both the general principles of criminal proceedings and Art. 5 of the Convention and the practice of the ECHR. In such cases, the court makes a decision on the continued detention during its periodic review procedure, refers only to the Article 331 of the CCP and in the operative part of the ruling indicates the extended period of detention without justification of risk in criminal proceedings and the need for further use of detention.

5. Limitation of motion on detention, the continued detention with only a list of legislative (standard) grounds for its application without proving their existence and validity of a particular person is a violation of Par. 4 of Art. 5 of the Convention that was recognized in the case “Kharchenko v. Ukraine”. In this regard the Plenum of the Supreme Court of Ukraine reasserted the need to follow the approach of the ECHR that after the expiry of the period even reasonable suspicion of a crime cannot be the only justification for the detention of the suspect, accused, and therefore if the request for detention or extension of the term of detention in custody is satisfied the court shall clearly state in its ruling other grounds or risks provided by Par. 1 of Art. 177 of the CCP.

6. Courts do not relate the feasibility of further detention in custody to what action should be carried out to complete the procedure in the ruling on extension of the detention. Generally, the court is limited to pointing out that the term of preventive measure expires, and the proceedings under these terms cannot be complete. This exact motivation of the relevant ruling does not often contain reasons that prevent from termination of proceedings and how it is related to the risk of causing further detention. In many cases, the court does not specify the risks specifically defined in the CCP that continue to exist, but is limited by pointing out that “while making a decision on a preventive measure the investigator and the prosecutor stated the risks justifying the detention did not reduce”; “the risks set out in the decision of the investigating judge persist during the preliminary investigation”; “The court does not have data on risk reduction under Art. 177 of the CCP, detention ends and the proceedings could not be completed before the end of detention, the purpose and reason of detention in custody by the investigating judge in the ruling that at the time of the preparatory court hearing is not abolished, and there are no new reason to use detention”, “ending the term of detention, so it is necessary to continue” and so on. It should be noted that this motivation is similar for all decisions, so there is no reduction of the risks under Art. 177 of the CCP in connection with the termination of certain legal proceedings in the framework of the court hearing.

7. In many cases, the courts do not take into consideration specific diseases the person suffers from during a hearing on a motion on detention and extension of the term of detention when it is impossible to provide necessary medical assistance under custodial circumstances.

8. In many cases, courts refuse the request for changing custody with another preventive measure without careful motivation of the arguments against such an application. In this regard the Plenum of the Supreme Court of Ukraine states that when considering requests to change the preventive measure of detention in criminal proceedings when such preventive measure is used for a long time ..., the court is entitled to take into account the actual term of detention for making a legal decision. At that Plenum of the Supreme Court of Ukraine refers to the legal opinion of the ECHR as of January 12th, 2012 in the case “Todorov v. Ukraine”, according to which:

“only substantial reasons are to be given for the purpose of the continued detention, the gravity of the crime, complexity of the case and gravity of the accusation cannot be considered as sufficient grounds for detaining a person in custody for quite a long term”.[16]

However, there are cases when considering an application of detention in custody, judges (investigative judge) meet all the requirements of procedural law and make justified judgments pointing out that the prosecutor did not prove insufficiency of softer measures to prevent the risks specified in the request for custody, and this happened even in the criminal proceedings of serious crimes:

“The prosecutor has proven the circumstances provided by Par. 1, 2 P. 1 of Art. 194 of the CCP of Ukraine, namely, existence of the grounded suspicion of crime PERSON_5 and sufficient grounds to consider that there is the risk provided by Art. 177 of this Code, in particular, that PERSON_5 may illegally affect the victim or witnesses. However the prosecutor did not prove the circumstance provided by Par. 3 P. 1 of Art. 194 of the CCP of Ukraine — insufficiency of softer measure to prevent the risk(s) provided in the motion.

Thus, taking into consideration that detention in custody is an exclusive preventive measure, PERSON_5 is reasonably suspected of committing a crime of special gravity, previously unconvicted with good characteristics according to the place of residence, lives with parents, but may illegally affected the victim or the witness that excludes other softer preventive measures to avoid the risk(s) provided in the motion, the court concluded to refuse to satisfy the motion on detention for failure of evidence of the circumstances provided by Par. 3 P. 1 of Art. 194 of the CCP of Ukraine. The statement of the prosecutor that PERSON_5 is suspected of committing a crime of special gravity for which the punishment is envisaged of imprisonment for a term of over ten years is not an absolute demand for the court to use detention in custody in respect to the suspect”.[17]

One of the examples of the ECHR concerning detention in custody is a refusal of the court to satisfy a motion on changing house arrest to detention:

“…when making a decision on a preventive measure for the accused the court must take into consideration not only the provisions stated in the CCP, but the requirements of Paragraphs 3 and 4 of Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights according to which restricting the right to freedom and personal security may take place in the cases provided by law as established. At that, the risk of the accused of fleeing from justice cannot be evaluated only on the basis of the severity of a potential sentence, and it is necessary to take into account the respective facts which may prove such a risk or a low level of such a risk which cannot be the grounds for detention.

In fact, the reasons for the motion come only to reference the single ground for changing a preventive measure as the risk of the accused of fleeing due to the severity of a potential sentence…

The prosecutor did not prove the existence of the suspicion that PERSON_2 hides from the court, may conceal, change or make a false document, i.e. there is a risk that the accused will commit and is already committing the actions provided by Art. 177 of the CCP of Ukraine.

Under such circumstances the court made a conclusion to deny the motion”.[18]

There are also cases of carefully justifying the decision on refusing to extend the term of detention, for example:

“According to the practice of the European Court of Human Rights, the expediency of extension of the term of detention in custody during the pre-trial investigation and trial is based on the presumption of the fact that the effective investigation and trial of the case reduce the risks which are grounds for detain the person in an early stage. Accordingly, each next extension of the term of detention in custody is to contain a detailed justification of the remaining risks and their analysis as grounds for further affection of the right to freedom (judgment Yeloyev v. Ukraine, Feldman v. Ukraine).

Thus, with time, as soon as the reasonable suspicion discontinues to be the grounds for detention, pre-trial bodies or the prosecutor must give other reasons for extending the detention in custody. In addition, such grounds must be clearly stated.

The Court shall take into consideration only the gravity of the committed crime, though it is crucial for evaluating the risk in court, but it cannot be a sufficient ground for legalizing detention in custody. ... the Court found that he has a full-time job..., where he has good characteristics, he has a daughter..., who does not work as she is on leave to attend to a child up to the age of three years.

During the hearing the prosecutor failed to prove that no other softer preventive measures can be used to prevent the risks provided by Art. 177 of the CCP of Ukraine and ensure the proper behaviour of the accused.

Under such circumstances, taking into consideration that... has been in custody for a long time,... the court concludes that the detention of the accused in custody is necessary and house arrest will be enough to ensure his proper behaviour. [19]

The analysis of court decisions on preventive measures discovers a trend that court ruling deny the request of the prosecution for detention in custody or extending detention in custody or those which granted a motion of the defence team in less restrictive preventive measure is much more reasonable than the one which provides detention as a preventive measure.

According to Paragraph 2 of Art. 206 of the CPC of Ukraine, whenever a investigating judge receives information from any sources whatsoever, which provides grounds for a reasonable suspicion that within the court’s territorial jurisdiction, there is a person who has been deprived of liberty without a valid court’s decision, such a judge is required to issue a ruling by which to order any public authority or official in whose custody the person is kept, to immediately bring this person to the investigating judge in view of verifying grounds for deprivation of liberty. At that, pursuant to Paragraph 3 of Art. 206 of the CCP of Ukraine the investigating judge shall release the person deprived of liberty from custody unless the public authority or official that keeps such person in custody presents a valid court’s decision, or proves the existence of any other legal grounds for deprivation of liberty. As the analytics of the HSCU proves, if the investigating judge miscalculates the term of expiry of a ruling on detention, such a person’s continuance to be detained after the expiry of the term of detention, and an appeal from such unlawful deprivation of liberty as provided of Art. 206 of the CCP Ukraine remain unsatisfied.

4. Judgments of the European Court of Human Rights against Ukraine
under Article 5 of the Convention

4.1. Wrongful detentions and detentions in custody

In the case Rudenko v. Ukraine, application No. 50268/08, judgment as of April 17th, 2014 the applicant complained about his illegal one month pre-trial detention without any court’s decision after sending a letter of accusation in his respect. In its judgment in the case, the Court referred to its previous judgments in respect of similar cases against Ukraine and recognized violations of Articles 5 §1 () of the Convention.

In the case Livada v. Ukraine, application No. 21262/06, judgment as of June 26th, 2014 the Court recognized once again violation of Article 5 §1 of the Convention expressed by administrative arrest for the purposes of criminal proceedings as arbitrary detention as a result of which the applicant was detained in custody for 10 days without a proper decision from the competent body (court). At that, the Court failed to deem as considerable the argument of the Government that during detention the applicant was not interrogated about the circumstances of the criminal case.

In the case Volyanyk v. Ukraine, application No. 7554/10, judgment as of October 2nd, 2014 the Court recognized violations of Articles 5 §1 () of the Convention because the court’s decision about preventive measures for the applicant as detention in custody did not contain any reasons justifying the necessity in detention of the applicant. In addition, the decision did not specify the exact period of time during which the applicant could be detained.

In the case Chanyev v. Ukraine, application No. 46193/13, judgment as of October 9th, 2014 the Court recognized violations of Articles 5 §1 () of the Convention which took place during the operation of the CCP (2012) in respect of the case concerning the issues of legality of detention of the applicant for two months on the basis of the investigating judge’s decision on preventive measures. In particular, the Court stressed that: “the new Code of Criminal Procedure of Ukraine... does not regulate in a clear and precise manner the detention of the accused between the completion of the pre-trial investigation and the beginning of the trial. Thus, as in the present case, Article 331 §3 of the Code provides that the trial court has a period of two months to decide on the continued detention of the accused even where the previous detention order issued by the investigating judge has already expired. ... existing legislative framework allows the continued detention of the accused without a judicial decision for a period of up to two months, and that those provisions were applied in the case of the applicant...”

In the case Khomullo v. Ukraine, application No. 47593/10, judgment as of November 27th, 2014 the Court recognized violations of Articles 5 §1 () of the Convention in connection with illegal detention of the applicant for the purposes of extradition to Russia in the absence of a special law which would regulate the procedure of detention of persons for the purposes of extradition (violation of requirement concerning “quality of law” led to arbitrary detention).

In the case Kushnir v. Ukraine, application No. 42184/09, judgment as of December 11th, 2014 the Court recognized violations of Articles 5 §1 () of the Convention when the applicant was detained without any decision and this detention was registered the next day with a delay of about 19 hours.

4.2. Illegal placement in a psychiatric institution

In the above mentioned case of Rudenko, the Court discovered violations of Articles 5 §1 (e) relating to involuntary medical treatment of the applicant in a psychiatric hospital without reasonable grounds, in particular, the inability of the applicant to consult independent medical experts for psychological examination in order to prove or disprove mental disorder which requires obligatory hospital treatment in a psychiatric hospital.

In the case Akopyan v. Ukraine, application No. 12317/06, judgment as of June 5th, 2014) the Court declared illegal the placement of the applicant to a psychiatric hospital due to the absence by that time of a clearly judicial procedure provided by law to resolve the issue concerning the legality of such placement. In addition, the Court stressed that the circumstances in which the applicant was deprived of the opportunity to attend a periodic medical examination during her stay in the psychiatric hospital also constituted an element of violation of Art. 5 §1 () of the Convention.

4.3. Long-term detention in custody

In the above-mentioned decisions of Rudenko and Livada the Court recognized violations of Art. 5 §3 of the Convention taking into account the long-term of detention of the applicants in custody in the pre-trial detention centres pending the decision of the court.

The Court found the same violations in the following cases (Buglov v. Ukraine, application No. 28825/02, judgment as of July 10th, 2014) and (Osakovskiy v. Ukraine, application No. 13406/06, judgment as of July 17th, 2014).

In general, among 99 judgments of the Court concerning Art. 5 of the Convention, 36 of them deal with violations 5 §3 of long-term detention in custody without reasonable grounds for extending such preventive measures. Therefore, generalizing the judicial practice of the ECHR one may conclude that violation of the right to release within reasonable term is systematic in the state.

4.4. Violation of the right to review the legality of detention during a reasonable term

The Court found constant violations of Art. 5, §4 concerning Ukraine in connection with the absence of proper judicial review of the legality of detention. Among 6 judgments taken on grounds of Art. 5 of the Convention the Court found violations concerning Art. 5, §4 of the Convention in half of them.

In the case of Anatoliy Rudenko, the Court recognized that the Ukrainian legislation which was valid as of the time of detention of the applicant (August–September 2007) did not require the national courts to explain the necessity to choose detention as a preventive measure as well as the frequency of consideration of motions on the continued detention in custody is determined by the date of next court hearing. Thus, the Court found the violations of Art. 5, §4 of the Convention.

In the above-mentioned case of Osakovskiy, the Court recognized violations of Art. 5, §4 of the Convention on the grounds that the national courts which heard the applicant’s motion on changing the preventive measure refused him on its face without a proper examination of his own circumstances.

In the case of Khomullo, the applicant complained that he was deprived of the opportunity to have a judicial review of the legality of his detention in the reasonable term within his detention in custody on the wait for extradition. He also stated that the national courts ignored his arguments concerning the absence of any considerable documents about his detention as the Russian Government did not send a request for extradition within a long period of time.

The Court justified its judgment by its conclusions on Art. 5, §1 of the Convention concerning the absence of legal provisions that are to regulate the procedure of detention on the wait of the extradition until adoption of the changes to the Code of Criminal Procedure as of June 17th, 2010. The Court also stated that the applicant was detained for the purposes of extradition in accordance with the amended provisions of the CCP according to which his detention was reconsidered three times, but every time he was refused in deliberation. As none of the mentioned decrees contains any arguments of the applicant the Court recognized violations of Art. 5, §1 of the Convention due to the absence of a proper judicial review of the legality of detention in custody.

5. Violation of the right to freedom during an extradition procedure

Even after the extradition procedure was regulated with the provisions of the CCP of Ukraine, there are cases of specific violation of right to freedom during such procedures.

According to Paragraph 10 of Art. 584 of the CCP of Ukraine the term of detention in custody during extradition arrest cannot exceed twelve months, at that according to Paragraph 6 of Art. 584 of the CCP of Ukraine it is calculated from the moment of detention by this Code i. e. Paragraph 2 of Art. 197, in case if detention took place earlier than detention in custody. But investigating judges do not take into consideration these provisions of the law, and they calculate the term of extradition arrest as of adoption of the ruling on extradition arrest. So, it is a violation of right to freedom.

6. Recommendations of the UN Committee against Torture

In Paragraph 2 of the Concluding observations on the sixth periodic report of Ukraine (hereinafter — Concluding observations) the UN Committee against Torture specified as follows:

“Insufficient legal safeguards were brought to the attention of the State party in the past as detained persons do not enjoy in practice all the fundamental legal safeguards from the very outset of deprivation of liberty, in particular in police detention and temporary holding centres, such as being informed of and understanding their rights, access to an independent doctor, to a lawyer and the right to inform a relative or person of their choice...”[20]

Taking into consideration that in most cases persons suspected of a crime are detained without judicial authorization, unacknowledged detention or detention with a delay in registration remains one of the main problems of law enforcement authorities and it is a main condition for all other violations of the rights of detainee’s.

Due to this situation concerning respect of the law during detention of persons the UN Committee against Torture recommended to create an unified national register of detention which would contain real data about detention, including extradition, and the exact date, time and place of detention from the very deprivation of liberty, not from the moment of drawing up of the protocol of detention.[21]

7. Administrative detention and “delivery” of a person

The legislation of Ukraine still contains the procedure of administrative detention, and the so-called “delivery of the offender” provided by the Code of Ukraine on Administrative Offenses during time of the USSR, which is a forced delivery for the appropriate law enforcement authority.

By their nature, they are a form of detention, because this situation falls within the definition of “detention” for Art. 209 of the CCP Ukraine, where a person due to force or respect of the order has to be close to an authorized officer or in the premises determined by that person. It complies with the approach of the European Court that considers it as de-facto detention.[22] Several versions of legal terminology for the same actual action — detention — create opportunities for abuse in detention.

In particular, in case of the administrative detention of a person for the purpose of prosecution for a criminal offense, such person is not entitled to exercise rights under the CCP Ukraine for a criminal suspect.

The UN Committee against Torture stated this issue in its concluding observations, which expressed concern about the continued use of administrative detention for various purposes of a criminal investigation under the Code of Administrative Offenses in which the detainee is deprived of procedural safeguards such as the right to appeal of such imprisonment. In this regard the UN Committee against Torture recommended Ukraine to reduce a number of administrative detentions and their terms and provide all principle procedural guarantees.[23]

In 2014 the ECHR recognized again violation of Art. 5 of the Convention in the case Livada v. Ukraine due to administrative arrest for the purposes of criminal investigation (see Paragraph 3 of this Section).

8. Changes to the CCP and other legislative acts to the extent
concerning powers to detain persons

In connection with the events in the eastern Ukraine in 2014 criminal and criminal procedural legislation as well as anti-terrorism legislation were amended.

In July of 2014 before the entry of Art. 176 of the CCP of Ukraine into force, according to which the persons suspected of (accused of) committing crimes against Ukraine (Art. 109–114-1 CC of Ukraine), and also crimes of terrorism, creation of illegal paramilitary or armed groups or attacks of high-risk facilities for environment (Art. 258–258-5, 260, 261 of the CCP of Ukraine) cannot be put under the following preventive measures: personal commitment, personal warranty, home arrest bail. Thus, these persons can be put under the only preventive measure — custody. This “automatic” use of the severest preventive measure without justification of obvious risks and consideration of the specific circumstances of a person does not comply with the practice of the ECHR.

In August 2014 a new Article 15-1 of the Law No. 1630-VII added the Law of Ukraine “On Fight Against Terrorism” that gives powers for preventive detention of the persons who are reasonably suspected of terroristic activity for the term of 72 hours, but no less than 30 days, in the district of long-term antiterrorist operation. Such detentions are carried out on the basis of the reasoned decision of Chief of the Central Administration of the Security Service of Ukraine or the Chief of the Central Administration of the Ministry of Internal Affairs of Ukraine in the Autonomous Republic of Crimea, in the relevant region, cities of Kyiv and Sevastopol with consent of the prosecutor and without ruling of the investigating judge, the court. At this, a copy of the decision on preventive detention should immediately be sent to the investigating judge, a court of competent jurisdiction with a petition on proper preventive measures in respect of the person.

Along with the introduction of so-called “preventive detention” the Law No. 1630-VII of the CCP of Ukraine was supplemented by a new Section IX “The special rules of pre-trial investigation in war or a state of emergency in the area of anti-terrorist operation.” In fact, these rules grant powers to the prosecutor which according to general rules are the powers of the investigating judge, including choice of detention in custody for the term up to 30 days for the persons who are suspected of committing the crimes provided by articles 109–114-1, 258–258-5, 260–263-1, 294, 348, 349, 377–379, 437–444 of the Criminal Code of Ukraine.

According to Art. 165 of the CCP of Ukraine such powers are given to the prosecutor “in case of failure to exercise obligations by the investigating judge in timely manner”.

Even if it is supposed that there is the urgent need to detain a person, including the case of absence of the grounds for his detention without ruling of the investigating judge provided by P. 1 Art. 208 of the CCP of Ukraine, as well as immediate choice of a preventive measure, the situation where the investigating judge cannot perform its functions for such a long period (up to 30 days) is clearly unrealistic.

Anyway, such detention procedure and detention in custody do not guarantee against violations of the right to freedom and personal security (Art. 29 of the Constitution of Ukraine), which according to Article 64 of the Constitution of Ukraine cannot be restricted even in the case of emergency or war.

9. Detention of people who participated in the street protests
of January–February 2014

During “the revolution of dignity” the participants of the street protests against the regime of V. Yanukovych were repeatedly and illegally detained across Ukraine, in particular: in the City of Kyiv — January 19th, 2014, in the City of Dnipropetrovsk — January 26th, 2014[24], in Donetsk — February 13th, 2014[25], January 26th, 2014 — in the City of Zaporizhzhia[26], February 19th 2014 — in the City of Kharkiv[27] and other cities[28].

On January 21st, 2014 the Verkhovna Rada of Ukraine adopted the Law “On Prevention of Prosecution and Punishment of the Persons in connection with the Events that Took Place during Peaceful Meetings and the Annulment of Certain Acts of Legislation of Ukraine”[29], on the basis of which:

— Persons who were participants of massive street protests which started on November 21st, 2013 were released from criminal responsibility for actions of criminal nature provided by the Articles 109, 112, 113, 121, 122, 125, 128, 129, 146, 147, 151-1, 161, 162, 170, 174, 182, 185, 186, 187, 189, 194, 195, 196, 197-1, 231, 236, 239, 241, 255, 256, 257, 258, 258-1, 258-2, 258-3, 258-4, 258-5, 259, 260, 261, 264, 267, 270, 270-1, 277, 279, 280, 286, 289, 291, 293, 294, 295, 296, 304, 325, 335, 336, 337, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 355, 356, 376, 377, 382, 386, 396, 436 of CC of Ukraine relating to participation in massive street protests which started on November 21st,2013 and the respective criminal cases were closed;

— Persons convicted of such crimes were released from penalty;

— Persons who were participants of massive street protests were released from administrative responsibility for any administrative infringements provided by the Administrative Offenses Code of Ukraine relating to massive street protests and committed within the period from November 21st, 2013 until the entry of this Law into force.

10. Illegal detention of persons in eastern Ukraine

Violation of right to freedom in the region of the Anti-Terrorist Operation (ATO) in the east of Ukraine is of peculiar attention.

According to the data provided by Irina Geratshenko, the Commissioner of the President for Peaceful Settlement Conflict in Donbas, in October of 2014 about 2,800 people were captured or went missing on the territory of the Regions of Donetsk and Luhansk.[30]

Pursuant to the information of international human rights organizations Human Rights Watch the armed supporters of the DPR and the LPR took several hundreds of civilians. Among the prisoners one can find predominately the people suspected of disloyalty to terrorists, these are activists, supporters of the Ukrainian authorities and religious activists. Only in August in eastern Ukraine the organization recorded 20 episodes of capture of citizens by rebels, 12 of which were interrogated.[31]

The main difficulty of establishing the exact number of people who were illegally deprived of their liberty lies in the fact that most of these people disappeared during the fighting, and that’s why there is no any information as to whether they were taken prisoner or killed. In addition, illegal armed groups of the self-proclaimed Donetsk and Luhansk people’s republics that keep participants of the ATO as prisoners do not always inform the exact number of the prisoners and from time to time they refuse to communicate with the representatives of the Ukrainian authorities for the purposes of negotiations on exchange of captives.

In addition, a part of the prisoners of war were illegally taken to the Russian Federation, and they are kept on its territory that was officially proved during the meeting of the representatives of Ukraine, Russia and the terroristic organizations in Minsk on December 16th, 2014[32] and before the other meeting that took place on February 11th, 2015.[33]

The illustrative case is the case of the Ukrainian service woman Nadiia Savchenko who was prisoned by the terrorists and taken illegally to the territory of the Russian Federation where she is held in the pre-trial detention centre being accused of the fabricated criminal case concerning murder of the Russian journalists committed by her on the territory of the Luhansk region.[34] At that the Government of the Russian Federation infringed the universal rules of the international human rights law, international legal obligations in accordance with the Vienna Convention on Consular Relations of 1963 and the provisions of the Consular Convention between Ukraine and the Russian Federation of 1994 as the consular of Ukraine had the opportunity to communicate with Nadiia only after intervention of the international community.[35]

Since December of 2014 Nadia Savchenko is on a hunger strike, her health has broken down, but according to the Office of the Prosecutor General of the Russian Federation so far there are no reasons to release her from the pre-trial detention centre.[36] At the meeting of the UN Security Council the representatives of the USA and Great Britain required immediate release of Nadia Savchenko from custody giving as a reason that Russia has broken the Minsk agreements concerning relief of all prisoners and also due to decline in her health, but this requirement was brushed aside by the representatives of the Russian delegation.[37]

In addition to capturing persons directly involved in the ATO, there were numerous violations of the rights to freedom and personal security of civilians on the part of terrorists of so-called DPR and LPR. According to mass-media, including foreign ones, the terrorists kept not only prisoners of war in the basements of the former administration buildings, but civilians as well. There are several kinds of hostages: prisoners of war, political prisoners and hostages for ransom. From time to time the rebels capture even their own supporters for disciplinary infringements which are not clearly defined.[38]

In many cases detention goes to intimidation, extermination, torture or even murder of prisoners and hostages.

In many cases relatives of the persons captured by the terrorists seek independently for the ways of deliberation of close persons by transfer of ransom.[39] Thus, public bodies do not always take required measures to deliberate the persons kept by the terrorists of DPR and LPR.

11. Recommendations

1. Oblige the pre-trial investigation bodies and/or public prosecution to record separately the number of detainees:

— On the ground of a ruling of the investigating judge for the purpose of delivery (Art. 190 CCP of Ukraine);

— The lawful arrest (Art. 207 of the CCP of Ukraine);

— By an authorized official decisions without a ruling of the investigating judge (Art. 208 of CCP of Ukraine);

— Administrative detentions.

2. Define as one of the priorities of the General Prosecutor of Ukraine of supervision of compliance with the law when detaining persons suspected of a crime, particularly those who are detained without ruling of the investigating judge at the initiative of bringing the guilty officials to criminal liability under Art. 371 of the Criminal Code of Ukraine.

3. Control the provisions of the CCP of Ukraine concerning the detention of suspects, as well as consideration of the practice of the European Court on a preventive measure of detention and extension of detention.

4. The Supreme Court of Ukraine present legal positions concerning the provisions of national law and the practice of the European Court during detention and preventive measures, and the application of criminal law, which provides liability for crimes related to the severest violations of human rights during prosecution (Art. 371–375 of the Criminal Code of Ukraine).

[1] Section is prepared by Tokarev G. (Kharkiv Human Rights Protection Group) in cooperation with Atshenko O. (Kharkiv Human Rights Protection Group).

[2]  http://sc.gov.ua/ua/sudova_statistika.html

[3] http://www.scourt.gov.ua/clients/vsu/vsu.nsf/(documents)/264C5A022472BB31C2257D1900315B8D

[4] http://www.gp.gov.ua/ua/stst2011.html?dir_id=110140&c=edit&_c=fo

[5] http://www.scourt.gov.ua/clients/vsu/vsu.nsf/(documents)/AD1EE0C42897A486C2257DAC00276002

[6] http://sc.gov.ua/ua/sudova_statistika.html

[7] http://www.gp.gov.ua/ua/stst2011.html?dir_id=111479&libid=100820&c=edit&_c=foReport of Prosecutor (Form No. P) for 6 months of 2014 Table 12 Application for remand in custody was submitted to court.

[8] http://www.gp.gov.ua/ua/stst2011.html?dir_id=111479&libid=100820&c=edit&_c=foReport of Prosecutor (Form No. P) for 12 months of 2014 Table 12 Application for remand in custody was submitted to court.

[9] http://ukrprison.org.ua/statistics/1409938063

[10] http://www.gp.gov.ua/ua/stst2011.html?dir_id=111480&libid=100820&c=edit&_c=fo

[11] http://www.gp.gov.ua/ua/stst2011.html?dir_id=111482&libid=100820&c=edit&_c=fo

 ”The Consolidated Report on Criminal Offenses (Form No. 1) for the period of January — December of 2014 Section 4. Registered by Internal Affairs Bodies Table 4.1. Crimes against justice.

[12] http://www.ombudsman.gov.ua/ua/page/secretariat/docs/presentations/

 An annual report of the Human Rights Commissioner of the Verkhovna Rada of Ukraine on observance of human rights and freedoms for 2014, p. 456.

[13] http://reyestr.court.gov.ua/Review/41347776

[14] http://www.reyestr.court.gov.ua/Review/42078623

[15] http://sc.gov.ua/ua/postanovi_za_2014_rik.html, On analysis of use of procedural law concerning choice of and extension of term of detention by first-instance and appeal courts, Ruling of the Plenum of the Supreme Court No. 14 as of 19 December 2014.

[16] http://sc.gov.ua/ua/postanovi_za_2014_rik.html, On analysis of using procedural law concerning the choice of and extension of the term of detention by first-instance and appeal courts, Ruling of the Plenum of the Supreme Court No. 14 as of December 19th, 2014

[17] http://www.reyestr.court.gov.ua/Review/40905694

[18] http://reyestr.court.gov.ua/Review/38140564

[19] http://www.reyestr.court.gov.ua/Review/40085108

[20] http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/UKR/CAT_C_UKR_CO_6_18892_E. pdf

[21] Ibid.

[22] Osypenko v. Ukraine application No. 4634/04, judgement as of 09/11/2010, §49.

[23] http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/UKR/CAT_C_UKR_CO_6_18892_E. pdf

[24] http://www.pravda.com.ua/news/2014/01/26/7011388/

[25] http://www.mukachevo.net/

[26] http://ukr.lb.ua/news/2014/01/26/253228_titushki_otlavlivayut_tsentre.html

[27] http://www.pravda.com.ua/articles/2014/02/19/7014642/

[28] http://slovoprosvity.org/pdf/2014/slovo2014-05.pdf

[29] http://zakon4.rada.gov.ua/laws/show/743-18

[30] http://www.pravda.com.ua/news/2014/10/22/7041651/?attempt=1

[31] http://ukr.lb.ua/news/2014/09/02/277971_human_right_watch_rasskazala.html

[32] http://coe.mfa.gov.ua/ua/press-center/news/33089-minsyka-zustrich-dosyagnuto-domovlenisty-pro-pripinennya-vognyu-zvilynennya-vsih-zaruchnikiv-ta-nezakonno-zatrimanih

[33] http://news.liga.net/articles/politics/4347956-rossiya_trebuet_vykup_za_plennykh_itogi_nedeli_v_zone_ato.htm

[34] http://tsn.ua/politika/lotchicya-savchenko-rozpovila-yak-yiyi-z-mishkom-na-golovi-vivezli-na-teritoriyu-rosiyi-359411.html

[35] http://tsn.ua/ukrayina/ukrayina-vimagaye-zvilniti-lotchicyu-savchenko-bez-zhodnih-peredumov-359434.html

[36] http://espreso.tv/news/2015/04/01/rosiyski_prokurory_ne_vvazhayut_savchenko_khvoroyu_i_zalyshat_u_sizo

[37] http://www.dw.de/a-18301235

[38] http://one-europe.info/stories-from-hell-hostages-of-donetsk-people-s-republic

[39] Ibid.