war crimes in Ukraine

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How to “justify” an illegal detention?

Arkadiy Bushchenko, an expert of the Kharkov group for human rights protection
Ukrainian laws on detention are imperfect: the case of Alushta mayor Aleksey Nechaev.

How to evade the demand of Article 29 of the Constitution, which reads that the legality of a detention must be verified by court during 72 hours after the detention, and to avoid the accusation of the illegal detention? This is not very difficult: one should only read the Criminal-Procedural Code attentively. Our criminal-procedural legislation, in spite of the obvious influence of the international standards on the protection of the right for freedom, still contains too many gaps that allow the law-enforcing organs to manipulate with such efficient tool as “detention”.

Alushta mayor Aleksey Nechaev stays in the preliminary prison for 21 days, and the legality of his detention has not been checked yet.

On 14 October 2003 the Pecherskiy district court of Kyiv issued the warrant for the detention of Aleksey Nechaev and for convoying him to court. On the same day, at 14:15, Nechaev was detained. By the way, Nechaev was detained for “convoying to court” in the building of the Central district court of Simferopol, where he was waiting for the beginning of the consideration of the case about his arrest on the basis of the appeal of the Crimean prosecutor!

It appeared that the prosecutor’s appeal had been withdrawn from the Central district court and passed to the Pecherskiy district court. It is difficult to understand why the question about the detention was solved not in Simferopol, but in Kyiv. However, Nechaev was detained in the very moment, when he was going to present to the Central district court of Simferopol the arguments against his detention. Nechaev was detained on the basis of the resolution of the Pecherskiy district court, to where he had not been summoned and, so, had not been given the opportunity to contend against the arguments of his opponents. Willy-nilly the doubts appear about the consistency of the arguments of the General Prosecutor’s office, if it preferred to apply such trick for obtaining the permission for the detention instead of solving this question in the open competition with the adversary.

Since that day Nechaev stays in the preliminary prison. His relatives were not informed about the detention. During four day Nechaev’s advocate was not admitted to him. Nechaev insists that he does not get any medical aid, although the officials know that at the time of the detention he underwent medical treatment in the Alushta town hospital.

The great number of the violations in this case is not very surprising: unfortunately, the violation of the rights of the detained is a common practice in modern legal proceedings in Ukraine. We are surprising at the carelessness of those, who initiated these violations: the officers of the General Prosecutor’s office of Ukraine. The officers of this agency are investigating the case of Nechaev now, they handed the appeal to the Pecherskiy court and they detained Nechaev and had to convoy him to court for settling the question about his arrest or release.

However, in fact, it is the administration of the Simferopol preliminary prison, who is directly violating Nechaev’s right for freedom, since he is kept there without proper court decision, although Article 106 of the CPC reads: “If the head of the establishment for preliminary incarceration did not get, within the term stipulated by law, the resolution of a judge about the preventive measure in the form of keeping in custody or the resolution about the release of the detained person, then the head of the establishment for preliminary incarceration must release the detained, compile the protocol about the release and send the notification to the official or organ that detained the person”.

Somebody would say that this provision concerns only the detention according to Article 106, which detention is realized without a court decision. Yes, strictly speaking, it is so. Nechaev was detained on the basis of part 4 Article 165(2) of the CPC. And the calmness of the agencies connected with this scandalous violation of Nechaev’s constitutional rights is caused by the fact that they are acting “under the banner of law”, or, to be more precise, according to this odious legal norm. We will quote the complete text of part 4 of Article 165(2) of the CPC:

“If the appeal of a prosecutor concerns the question about taking into custody of a person, who stays at large, then a judge has the right to issue the resolution about the detention of the suspected person and convoying this person to the court. The detention may not last longer than 72 hours, and, in the cases, where the person stays outside the settlement, where the court works, -- not longer than 48 hours since the moment of transporting the detained to this settlement”.

The right of a court to issue the arrest warrant in the presence of the sufficient reasons seems to be rather logical. Moreover, such procedure of the preliminary check of the reasons for the arrest serves as an additional guarantee of the rights of the person, who is suspected by law-enforcing organs. This procedure meets the demands of Article 29 of the Ukrainian Constitution, which permits the detention without court warrant only if “it is urgently necessary for preventing a crime”. If there is no such “urgent necessity”, then a law-enforcing organ must turn to court for the preliminary check of the reasons for the arrest.

The second part of Article 165(2), reading that “the detention may not last … in the cases, where the person stays outside the settlement, where the court works… not longer that 48 hours since the moment of transporting the detained to this settlement”, is somewhat problematic.

As a matter of fact, from the grammatical point of view, the phrase “may not last … not longer that 48 hours” means “must last longer than 48 hours”. Yet, we understand that the legislators did not want to establish the minimal term of the detention, this is merely an error caused by elementary illiteracy.

However, the legislators are responsible for giving the legal opportunity to keep a person in custody for the unlimited term without taking to court, since the law does not stipulate the time, during which a detained must be taken to the “settlement, where the court works”. The determination of the moment, from which the 48-hour term is beginning, fully depends on the law-enforcing organ, which realizes the detention.

In the case of Aleksey Nechaev, the General Prosecutor’s office needed more than three weeks for taking the detained from the Crimea to Kyiv. And, obviously, this is not the maximal term, and Nechaev is not the only person, who has suffered from the slow transportation.

Every man of sense understands that a detained must be transported to court as soon as possible. Yet, everyone, who has any experience in the sphere of legal proceedings, knows how often the law-enforcing organs neglect the references to the Constitution, say nothing of such “vague” concepts as “meaning of law” and “common sense”. Taking into account this approach of the fighters with crime, the future of Nechaev seems to be rather obscure: the law does not stipulate that he must be transported to this “settlement” at all.

Evidently, the officers of the General Prosecutor’s office know about this provision and believe that, since they acted according to the permission of the Pecherskiy court, they must not obey part 3 Article 29 of the Constitution, which obliges to conduct the court check within 72 hours.

However, the preliminary court check realized by a judge, who issues the permission for the detention in the accordance with Article 165(2) of the CPC, does not cancel the duty to take the detained to court for verifying the legality of this detention. Although the clauses of Article 29 of the Constitution are formulated not quite accurately and can raise some doubts, but the provision of Article 5 §3 of the Convention on the protection of human rights and fundamental freedoms is absolutely indubitable: “every detained… must be immediately taken to a judge or another official person, who have a judicial power”. The term “immediately” may be interpreted in different ways, but it is clear that 21-day term does not correspond to it.

Even smaller terms of detention were regarded by the European Court as violating the demand of “immediacy”. For example, in the case of Sakik the Court resolved: “Even if to suppose that the activities, of which the appellants have been accused, are connected with the menace of terrorism, the Court cannot agree that it was necessary to keep them in custody during 12 or 14 days without court interference” (ECHR, Sakik and Others v. Turkey, 26.11.1997, § 45)». As far as we know, the case of Nechaev is not connected with terrorism. How then the Ukrainian government would justify three weeks of the detention without taking the accused to court, if Nechaev turns to the European Court?

Another problem is that the draft of new Criminal-Procedural Code, adopted by the Supreme Rada in the first reading, still consists the provision about the immunity, which is so useful for law-enforcing organs. I will repeat my own words about this norm of the draft: “This provision provides the unlimited opportunities to militia for the misuses, since the militia determines the time, when the detained would be transported to the “settlement, where the court works”, thus determining the beginning of the term of detention. It is easy to imagine diverse forms of the cooperation of law-enforcing organs of various “settlements” for “justifying” the illegal and, theoretically, unlimited deprivation of liberty”.

Unfortunately, this assumption will be confirmed soon. And, alas, this would be only the first step in the application by law-enforcers of part 4 Article 165(2) of the CPC, owing to which they, in spite of de iure deprivation of the right to keep the detained and suspected in custody without any control, got the opportunity to restore this right de facto. Thus, the statement that only a court may permit to detain a person and establish the term of the detention turns into fiction, since the time when the court would have the opportunity to interfere depends on law-enforcing organs only.

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