Human rights in Ukraine 2011. III. THE RIGHT TO LIBERTY AND SECURITY
1. System problems of pretrial detention in criminal justice
It should be noted that in 2011 the problems of pretrial detention during criminal proceedings became a subject of public discourse because of the celebrated cases against Yuliya Tymoshenko and former members of her cabinet and other related matters. However, these cases did not create additional problems, but highlighted the systemic problems that had existed for long time, and we covered them in our past reports.
1.1. Reasonable suspicion
The law and practice in Ukraine still fail to take into account and analyze by courts the reasonableness of suspicion in the case concerning the person either detained or retained in custody. This requirement is not formulated in the legislation; moreover, the provisions of the Plenum of the Supreme Court of Ukraine directly forbid the courts to determine the reasonableness of the suspicion.
This directly contradicts the requirements of Article 5 §1(c) and 3 of the Convention, which defines the reasonableness of suspicion as a necessary condition for the lawfulness of detention. While these problems are systemic, in 2011 it was in the news due to suits initiated against officials of the Government of Yuliya Tymoshenko.
As a result, the European Court considers two cases where the problem of reasonable suspicion is a key issue: cases of Korniychuk[2] and Makarenko[3]. In both cases, attention is drawn to the fact that charges are based on the same assertions that have previously been recognized by courts as not containing the elements of the crime, which means there is no reasonable suspicion.
In this respect it is worth noting sufficiently progressive provisions of the draft Code of Criminal Procedure (CCP) prepared by the working group on reform of the criminal legal proceedings[4], which in Article 129 expressly provides that
“The application of the measures of criminal proceedings is not allowed unless the investigator or prosecutor can prove that: 1 — there is a reasonable suspicion of criminal offenses of such severity that entail application of the measures of criminal proceedings.”
1.2. Unregistered detention
The practice of unregistered detention between actual arrest and drawing up a report continues.
The European Committee for the Prevention of Torture (ECPT) in a recently published report on the visit to Ukraine in 2009 stated that
“it is concerned with what seems a “gray” period between the moment when a person is forced to stay with the militia and the moment a detention report is drawn up.” The ECPT also noted that militia officers consider such practice a common procedure. During the meeting with the delegates, “the operative officers … maintained that they have the right to talk for 3 hours prior to transfer of a detainee to an investigator, who informs the person of his rights and draws up a record of detention. This “three-hour period” does not seem to be included into the 72-hour period of detention in militia custody. ... Many persons claimed that they spent a night in the militia department or were chained to a radiator in the hallway before they were officially detained.”[5]
So far no effective measures were taken to combat the practice of “informal” detention. It should be noted that Article 207 of the draft CCP contains an important provision, which can help to eradicate this practice in the case of fair use:
“A person is detained from the moment s/he is bending by force or obeying a command to stay with the authorized officer or at the premises specified by the officer.”
1.3. Administrative detention for prosecution
Since 2004 we have drawn attention to the problem of the use of administrative detention for prosecution in our annual reports. We also recommended amendments to legislation that would preclude administrative detention for prosecution, for example, by providing for mandatory release of a suspect of committing an administrative offense prior to court hearing (see, for example, report for 2009-2010). This problem was also mentioned in the reports of the CPT and the Conclusions and Recommendations of the UN Committee against Torture, and led to the conclusion about an arbitrary nature of detention in the European Court of Human Rights, for example, in the cases of Doronin[6] and Zaharkin[7].
So far no measures have been taken to tackle this systemic problem, which entails the use of torture and inhuman treatment of detainees and violation of their rights to a fair trial.
In 2011, the European Court held its judgments in several cases where this problem was considered. In its Balitskiy judgment, the European Court applied Article 46 of the Convention and maintained:
“The practice of placing a person under administrative arrest to ensure his availability for questioning as a criminal suspect had been previously found by this Court to be arbitrary under Article 5 as the authorities failed to ensure the applicant’s procedural rights as a criminal suspect. In the case Nechiporuk and Yonkalo v. Ukraine (No. 42310/04, §264, 21 April 2011) the Court emphasised that by having formally placed the applicant in administrative detention but in fact treating him as a criminal suspect, the police deprived him of access to a lawyer, which would have been obligatory under the Ukrainian legislation had he been charged with the offence of murder committed by a group of persons and/or for profit, an offence in respect of which he was in fact being questioned… Having regard to the structural nature of the problem disclosed in the present case, the Court stresses that specific reforms in Ukraine’s legislation and administrative practice should be urgently implemented in order to bring such legislation and practice into line with the Court’s conclusions in the present judgment to ensure their compliance with the requirements of Article 6. The Court leaves it to the State, under the supervision of the Committee of Ministers, to determine what would be the most appropriate way to address the problems”.[8]
To date, there were no attempts to address this systemic violations.
1.4. The problems of detention without legal basis
In previous reports, including that for 2009-2010, we paid heed to such systemic problems in legislation and practice, as the absence in the decision on detention of specification of the term of such measure, keeping in custody without any decision between the completion of pretrial investigation and preliminary court hearings.
On February 10, 2011, in the Kharchenko case, the European Court acknowledged that such violations are systemic problems of Ukrainian legislation and practice. The Court stated:
“The Court thus regularly finds violations of Article 5 §1 (c) of the Convention as to the periods of detention not covered by any court order, namely for the period between the end of the investigation and the beginning of the trial and the court orders made during the trial stage which fix no time-limits for further detention, therefore upholding rather than extending detention, which is not compatible with the requirements of Article 5 (see, among many other authorities, Yeloyev, cited above, §§49-55). Both issues seem to stem from legislative lacunae”.[9]
1.5. Groundless court decisions as to the detention on remand
In Kharchenko case the European Court also found the lack of grounds for decision on detention and continued detention to be a systemic problem. The Court noted that
“even for lengthy periods of detention the domestic courts often refer to the same set of grounds, if any, throughout the period of the applicant’s detention, although … after a certain lapse of time the persistence of a reasonable suspicion does not in itself justify deprivation of liberty and the judicial authorities should give other grounds for continued detention, which should be expressly mentioned by the domestic courts”. The Court noted that “ the issue should be addressed by the domestic authorities, to avoid further repetitive complaints under this head”.[10]
However, the state seems to adopt no measures to tackle this problem. In addition, in the known cases against Yuliya Tymoshenko and Yuriy Lutsenko the courts justified the decision on custody so that these decisions themselves interfered with their rights under Articles 6 and 10 of the Convention[11].
Moreover, recently the public prosecution department seems to deepen this systemic problem. In some cases, the prosecutor’s office, dissatisfied with the decisions of courts, which, among other things, released suspects from custody because the prosecution had failed to prove the necessity of their detention, i.e. directly implemented the principles laid down in Article 5 of the Convention, the prosecutor’s office resorted to administrative pressure of judges accusing them of “breaching the oath” using its representation at the High Council of Justice of Ukraine. For example, in one case Deputy Prosecutor General of Ukraine Havryliuk, who is also a member of the High Council of Justice, demanded to fire judges of the Appeal Court in Kyiv for breaching the oath as they had released the accused from custody because prosecutors had failed to give grounds for further detention[12].
So, the public prosecution department of Ukraine deepens the systemic problem defined in the Kharchenko case, which will only increase the number of applications to the European Court and significant payments from the state budget of Ukraine.
Therefore it is worthwhile to consider the CCP provisions requiring careful study of risks with reference to particular circumstances, obligation of prosecution to provide evidence for such circumstances and the duty of the court to justify why other preventive measures can not reduce the existing risks.
1.6. The right to challenge detention
As before, under the law, during the preliminary investigation the detainee has no right to challenge the legality of such measure. Meanwhile the draft CCP provides reasonable and well-developed safeguards for detainee’s appeal, which, if the bill is approved, can meet the requirements of Article 5 §4 of the Convention.
There remains a problem of complaining against detention at the stage of court proceedings. In several cases against Ukraine the European Court examined this issue, and finally, in the Kharchenko case, recognized it to be systemic and concluded:
“As to the right to review of the lawfulness of the detention guaranteed by Article 5 §4, the Court notes that ... it faced an issue of the domestic courts’ failure to provide an adequate response to the applicants’ arguments as to the necessity of their release. Despite the existence of the domestic judicial authorities competent to examine such cases and to order release, it appears that without a clear procedure for review of the lawfulness of the detention the above authorities often remain a theoretical rather than practical remedy for the purposes of Article 5 §4. Moreover, speediness of review of the lawfulness of the detention seems to be compromised by the fact that such a review is linked to other procedural steps in the criminal case against the applicant during the investigation and trial, while such procedural steps might not necessarily coincide with the need to decide on the applicant’s further detention promptly and with reasonable intervals… The Court considers that these issues should be addressed by the domestic authorities, to avoid further repetitive complaints under this head”.[13]
2. Deprivation of liberty in other cases
2.1. Administrative detention
The Constitutional Court of Ukraine recognized as unconstitutional a number of legal provisions for administrative detention, which approved detaining a person without a court order for a period exceeding 72 hours.
Also, the Constitutional Court found that the “bringing” of a person to militia and keeping her/him there in a state of intoxication is still deprivation of liberty.
This decision indirectly implies that the Constitutional Court understands the concept of “crime” used in Article 29 of the Constitution in a broader sense than the concept is understood in the Criminal Code of Ukraine. This follows from the fact that the Constitutional Court extended the provisions of paragraph 3 of this Article relating, judging from the text of the article, only to “crime” to cover offenses, which are not crimes in the strict sense of the term.
2.2. Detention in custody pending extradition
In our report for 2009–2010, we drew attention to the CCP novelty concerning extradition issues. Currently there is no sufficient information to evaluate the effectiveness of this procedure. But this year the European Court of Human Rights has handed over to the Government of Ukraine Kurbanbayev case[14] where this issue will be examined.
2.3. Delayed release from detention due to administrative inconsistencies
In the Mokallal case[15] the European Court found a violation of right to liberty because the applicant remained in detention pending extradition three days after the Iranian government had told our government that the need for extradition expired.
In the Oshurko case[16] the applicant was kept in the colony for 14 days after the Court of Appeal decided on his release on parole because of the delay with sending the court decision to the colony.
Earlier, a similar violation has been established in the case of Kats and Others v. Ukraine[17].
2.4. Manipulation with procedures
The Nowak’s case is another — in addition to tempering with administrative detention — example of manipulation procedures used by militia. The applicant was apprehended in Lviv on 20 January 2005 and deported to Poland on 24 January 2005 respectively, as official documents read, according to Article 32 of the Law on the Legal Status of Foreigners. In reality, it was the extradition because the militia had information from Polish colleagues that he was wanted in connection with a criminal case in Poland.
The court also noted that there is no legal regulation of apprehension of aliens that would meet the quality requirements of the law.
3. Mechanisms of control
The report for 2009-2010 noted the actual termination of the Office of Human Rights Monitoring, which was never renewed.
However, the Presidential Decree of September 27, 2011 established the Commission on the Prevention of Torture and Presidential Decree of November 18, 2011 approved the list of members of the Commission. As far as we know, by this time (early December) the Commission has not commenced working, although the fact of its creation should be welcomed.
4. Recommendations implemented
The following recommendations suggested in last years’ reports were carried out:
— consent to publish the CPT report compiled after the visit to Ukraine in 2009 was given and the report was made public;
— the law “On Free Legal Aid” was adopted providing, in particular, the right to free legal assistance to individuals whose mental health was called in question.
5. Recommendations
— to amend the law “On Free Legal Aid” with the right of (1) aliens to free juridical assistance in all cases of apprehension and (2) juveniles apprehended under any circumstances;
— to hasten the adoption of the new Criminal Procedural Code of Ukraine taking into account the remarks made by experts from the Council of Europe or incorporate relevant provisions into the current Criminal Procedural Code;
— to provide in relevant laws for mandatory recording of any apprehension regardless of the grounds for its application;
— to provide in the relevant laws the duty of immediate release of a person if there is a decision on release or decision, under which s/he was deprived of liberty, expires and to provide for holding responsible for breach of this duty;To provide the Commission on the Prevention of Torture with sufficient resources and authority to carry out visits to places of deprivation of liberty;
— to start drafting a bill on national preventive mechanisms under the Optional Protocol to the Convention against Torture;
— to provide for mandatory release of persons apprehended in administrative procedure after drawing up a record on wrongdoing under the obligation to appear before the body authorized to hear cases of law infringement; and
— to foresee the obligation of the court deciding on detention or prolongation of detention to determine the reasonableness of the suspicion or accusation of a person, and to justify the preventive measure under the circumstances.
[1] Prepared by Arkadiy Bushchenko, executive director of UHHRU.
[2] Korniychuk vs. Ukraine, No. 10042/11
[3] Makarenko vs. Ukraine, No. 622/11
[4] http://minjust.gov.ua/files/KPK_20110705.zip
[5] CPT/Inf (2011) 29 #_Toc257811036 http://minjust.gov.ua/files/KPK_20110705.zip
[6] Doronin vs. Ukraine, No. 16505/02, §56, 19 February 2009
[7] Oleksiy Mykhaylovych Zakharkin vs. Ukraine, No. 1727/04, June 24, 2010
[8] Balytskiy vs. Ukraine, No. 12793/03, §§51 and 54, November 3, 2011
[9] Kharchenko vs. Ukraine, No. 40107/02, §98, February 10, 2011
[10] Kharchenko vs. Ukraine, No. 40107/02, §99, February 10, 2011
[11] See in more details: “Политические преследования в современной Украине: 2010–2011”, http://helsinki.org.ua/index.php?id=1321887763
[12] See in more details: http://helsinki.org.ua/index.php?id=1311841868
[13] Kharchenko vs. Ukraine, No. 40107/02, §100, February 10, 2011
[14] Kurbanbayev vs. Ukraine, No. 42289/09
[15] Mokallal vs. Ukraine, No. 19246/10, November 10, 2011
[16] Oshurko vs. Ukraine, No. 33108/05, September 8, 2011
[17] Kats et al. vs. Ukraine, No. 29971/04, December 18, 2008