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Commentary to the resolution of the Supreme Court of Ukraine No. 05-3342 св 00 of 18 September 2000

Ivan Lishchina, Kharkov
This resolution can be regarded from four aspects: criminal-procedural, international-legal, constitutional and political-legal.

The actions of the militiamen were directed for making a search, that is the investigation action, which means ‘compulsory search of residence, constructions, plots of land and other objects belonging to some person with the purpose of finding and confiscating some articles or documents, which can be important for an investigation, or finding some sought for persons, alive or dead; the action is carried out if there is information that the items or persons to be found are concealed in the place of search’. That is, the special edition points out the compulsory character of the search. So, the search relates to so called measures of the procedural coercion. Under the term ’the procedural coercion’ the juridical science means ‘a set of coercive measures stipulated in the Criminal-Procedural Code (CPC), which had to guarantee the fulfillment of needed duties of the participants of the criminal case and the proper fulfillment of the tasks of the criminal trial’.

From the viewpoint of the militiamen their actions fully agreed with the mentioned definition: the law (Article 181 of the CPC) requires the presence of the searched person, to break the door is much more difficult than to make the owner to open it with the key and so on.

However, the militiamen did not take into account that there are limits of the procedural coercion, which not only protect legal rights and interests of citizens, but also regulate the activities of state officers, carrying the ODA.

The limits of the coercion during a search are determined by three elements: applicable ways of the coercion, the search object and the circle of persons, who are searched. The last element was duly obeyed: the coercion was really applied relative to the person mentioned in the search warrant, and thus it seems to be correct. However, concerning the other elements, the actions of the militiamen are open to criticism.

The ways of coercion, which are commonly applied by state agents during a search, are as follows: opening locked rooms and stores, if the owner refuses to open them voluntarily; the persons, who are present in the searched room, or those, who entered the room during the search, must stay in the searched place and must not communicate between themselves and with other people until the end of the search. The officer in charge of the search has the right, without having any additional warrants to make the search on a person present. However, this list is compiled on the basis of the current practice and is not obligatory. The arguments pertaining to space look much more convincing. The search warrant sanctioned by the prosecutor of judge must strictly indicate the place of the search. This restricts the place where coercion may be applied. Thus, the actions of the militiamen, who applied the coercion to the person to be searched not in his flat, but outside (on the staircase), clearly violated the limits of the procedural coercion during a search.

Yet, the Supreme Court mentioned a violation of the Constitution and the European Convention of human rights, but not that of the CPC. Why? Perhaps, there are two reasons for it. First, the above considerations are not the formal law, they describe only practical interpretations, the law does not give the exact and unambiguous answer to these questions. Besides, the detainment for a couple of minutes of the person to be searched does not look an essential violation worth of noting in the materials of the criminal case. Secondly, it was honor and dignity of the person that suffered from the public coercion, which means that this topic must be discussed and described in the terms of human rights protection, that is mainly in terms of the norms of the Ukrainian Constitution and the international agreements.

International-legal aspect of the situation under discussion is closely connected with the constitutional one and is expressed in the Supreme Court decision that beside Article 29 of the Constitution Article 5 of the European Convention of human rights and basic freedoms was also abused. Such direct application of an article of an international agreement of Ukraine became possible due to Article 14 of the Ukrainian law ‘On international agreements of Ukraine“ of 22 December 1993 and to Article 9 of the Ukrainian Constitution, which includes international pacts and agreements of Ukraine into the Ukrainian legislation, thus permitting Ukrainian courts immediately and directly refer in their decisions to such agreements as to the sources of the national right.

It should be noted that the Convention is not a contract, but a law-creating agreement. The main purpose of the participants of such agreements is not the creation of mutual subjective rights and duties, but the creation of the objective rights for their citizens with the corresponding duty of the state-participants to observe the rights. Therefore, the Convention was developed as a self-executable document, that is an agreement which will be applied by national courts without (or before) the inclusion of the corresponding legal norms into the national legislation.

However, the Convention is an international agreement, and this feature is revealed not only in the fact that it sets the guarantees of human rights protection, but also minimal guarantees valid for all the sides of the agreement, without demanding from the states the similarity in the measures undertaken for fulfilling the Convention. Thus, to preserve the efficiency of the tool, the special organ – the European Court on human rights – was created, that had the exclusive right to interpret the Convention articles applicable to concrete cases. Later the Court practice, having become considerably wider and deeper, became a set of rules, that made the norms of the Convention more exact. All member-countries must obey these rules for the complete realization of the indicated norms under the fear of paying considerable compensations to victims of the rule violations. This means that the Ukrainian court, before making a decision using Article 5 of the Convention, had to pay attention to how this article is treated by the European court.

In the case considered the Supreme Court meant item 1b of Article 5 that forbids any detainment in all situations except a legal arrest, or a detainment of a person for disobedience to a court decision or with the purpose of guaranteeing the fulfillment of any obligation stipulated by law.

Indeed, the actions of the officers were not legal. Moreover, in the given situation the person, whose flat is to be searched, had no obligation to be present during the search, if the person was absent from the very beginning in the place of search. The law contains a special procedure for such a situation: the search is made in the presence of witnesses and a representative of the house manager, who must guarantee the legality and objectivity of the search.

However, in this case there is a difficult spot connected with the interpretation by the court of the term ‘detainment’. The matter is that the court will not acknowledge any deprivation of liberty as detainment. One must ‘account of the concrete situation and take into consideration a number of criteria, such as: kind, length, consequences and conditions of executing the measure considered’. The main criteria, which court takes into account in the situations connected with brief terms of the deprivation of liberty, are often the purposes of state actions, but not their consequences. The deprivation of liberty is intended for breaking the ties with the environment and loss of independence. Along with it the court acknowledges the necessity to guarantee to police and investigation services to execute their duties. So, it would impede the actions of the police, if every brief detainment would be qualified as a deprivation of liberty.

Similar cases were come across in practices of the European court and the European commission on human rights (the organ that earlier considered all the cases on the violation of the Convention before directing them for further processing; this organ is abolished now, all his functions were inherited by the Court). In particular, the commission acknowledged as a violation of laws the coercive detainment for taking a blood analysis, yet, other cases, including a detainment for making a search, did not lead to a restriction of liberty sufficient to be interpreted as a deprivation of liberty. So, one cannot be sure that the European court, if it considered this case, would acknowledge the militiamen actions as a ‘deprivation of liberty’, thus falling under Article 5.

Thus, the reference of the Supreme Court to Article 5 in the connection with an illegal detainment does not look so convincing as one would wish. However, it should be noted that the European Convention, like other international document of this type, sets only the minimal level of rights protection, and the fact that it is not applicable to the given situation does not mean that the decision of the Supreme Court is wrong.

The constitutional aspect of this decision is connected with the fact that the resolution of the Supreme Court is based on Article 29 of the Constitution protecting everybody’s rights to freedom and personal inviolability. The article contains guarantees similar to those of Article 5 of the Convention (the right to be informed on the reasons of the detainment or arrest, the right to contest the arrest in a court, etc.), but these guarantees are applied in to a narrower circle of cases: the article mentions only arrest or captivity. Yet, Article 29 of the Constitution provides a more profound protection of these rights than Article 5 of the European Convention. The commented decision demonstrates that the guarantees given by Article 29 can be extended even to a situation when a person is detained for several minutes for transporting to the place of search. Article 8 on the direct action of the Constitution norms has also found its reflection in the treatment of the case. Thus, the Supreme Court showed an example of its own interpretation of this article: ‘Since the Ukrainian Constitution, as it is mentioned in Article 8, has the highest juridical priority, and its norms are those of direct action, all courts, when considering concrete cases, must estimate the contents of any law of any legal act from the point of view of its concordance with the Constitution, and in all cases the Constitution must be applied as a direct action norm’. Since the concordance of the CPC adopted in 1961 with the operating Constitution is very doubtful, then the application of constitutional norms to the given case looks well grounded.

The given decision has all the chances to become an important precedent. The official legislation of Ukraine does not recognize precedent right. However, as it is brilliantly demonstrated by the book by V. M. Brynstev ‘Unofficial court precedent’, the opinion of a court of a higher level on this or that interpretation of the right has a great influence on decisions of lower level courts. So, the reference of advocates on the decisions of the Supreme Court can hardly be ignored by the court.

That is what really determines the political-legal significance of the decision. It is one of the few examples of the successful combination by Ukrainian courts of the two basic principles of law-abiding states: superiority of the right and human rights protection. Besides, it has made, although not very successful, attempt of the direct application of international standards of human rights protection, which is a significant event showing the step-by-step recognition by judges of the necessity to fulfil the international obligations of Ukraine in the sphere of human rights protection. In the light of the last conclusion the joint consideration of articles of the Ukrainian Constitution and of the European Convention on the protection of human rights and basic freedoms looks very promising. If this decision is widely known among barristers, that will have a beneficial influence both on the juridical attitudes and on the development of juridical practice in Ukraine.
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