Human rights abuse during pre-trial detention

From a speech by Ruslan Belsky, lawyer and legal expert for the project “Combating human rights abuse during pre-trial detention”:

The problems relating to pre-trial detention take their roots from the authoritarian Soviet system which disregarded human rights, prioritizing rather the abstract interests of the State. A real part of the law enforcement system worked on the principle: “Let ten innocent people suffer, but not one offender must escape punishment”. Most of the management level of the modern law enforcement agencies studied and had their first practice within that system. Democratic rules were established thanks to the insistent recommendations from democratic countries. The principle began being introduced: Let ten guilty people go free, but not one innocent person should suffer”. The said management level did everything they could to resist this, not being accustomed to working under such conditions.

They began applying another shortcoming of the Soviet State – the declarative nature of legislation. Legal requirements are bypassed through twisting the interpretation of legal norms. 

There are also direct violations of legal norms which the controlling bodies do not pay attention to, these including the following:

The actual time that a person was detained is not clearly fixed

Article 106 of the Criminal Procedure Code (CPC) stipulates the exclusive grounds for the detention of a person suspected of a crime. In the vast majority of cases these grounds do not apply, yet people are detained.

The detention takes place something like this: police officers arrive at a person’s home and demand that the person comes with them. If s/he refuses to come without the appropriate documentation (a summons, telegram, etc) the person is taken by force, usually to a police station.

The detained person is taken into an officer and interrogated, sometimes with the use of torture.

The protocol of detention is not formalized, and not only is the prosecutor’s office not informed of the detention, but often enough the family of the person is not told.

A person can remain in this never-never land for 24 hours or longer.  After this, the person is either released or a detention protocol is drawn up. As a rule, the document records the detention from when the paper appears, rather than from when the actual detention took place.

If relatives or lawyers protest about such unlawful detention, they often receive the response that it was not a detention, but an invitation, and that it was an interrogation, but a “conversation”, a “chat”.

Ruslan Belsky believes that demands need to be tightened of the law enforcement agencies. People brought in for questioning or summoned must be able to leave the station three hours after arrival, and if they are not allowed to, then a protocol must be drawn up, recording the actual time of detention.

People are not provided with legal aid

Article 59 of the Ukrainian Constitution states that “everyone has the right to legal assistance… each person may choose their own defence lawyer. In Ukraine, the advocacy acts to ensure the right to a defence against accusation and to provide legal assistance in deciding cases in courts and other state bodies”

This constitutional norm is one of the most frequently violated by law enforcement officers. Few of them have read the Constitution carefully and know that the norms of the Main Law are those of direct effect, and that the Constitution has the highest legal force in the country.  Their argument is as follows: “The person is not accused, simply invited”, “We have the right to interrogate him as a witness, not as a suspect or accused. And the Criminal Procedure Code doesn’t stipulate that a witness should have a lawyer.”  Thus Article 59 is simply ignored.

Having been deprived of legal aid, the detained person is totally dependent on law enforcement officers. This gives the latter the chance to apply psychological or physical pressure, as well as torture.

The solution lies in clarifying the situation with law enforcement agencies, and stiffening the demands set so that restriction of the constitutional right to legal aid becomes impossible.

Violation or unlawful twisting of a person’s right to refuse to give evidence

Article 63 of the Constitution states that “a person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law”. Article 69 of the CPC stipulates the right of witnesses to refuse to give evidence against themselves, their family or relatives.

Attempts to exercise this right more often than not lead to torture being used. “Beating confessions out of people” is the most serious problem in pre-trial detention. Very often in material of criminal investigations already launched, “confessions” appear which almost always indicate that torture was applied. Genuine confessions are rare; it is therefore surprising that such “confessions” are found in most cases where there is little proof.  And they appear after torture has been used.

This practice dates back to the Stalinist Vyshynsky’s notorious theory that the “queen of proof” was a personal confession.

As well as torture, law enforcement officers try to unlawfully dilute the force of Article 63 of the Constitution. For example, the Ministry of Internal Affairs circulated an incorrect explanation of the content of Article 63 which elicited criticism even from honest and literate investigation units. One investigator showed Ruslan Belsky a copy of this “explanation”. After presenting Articles 69 and 69-1 of the CPC and Article 63 of the Constitution, it goes on to state:

“The following have the right to refuse to give evidence as witnesses:

  1. Members of the family and close relatives, adopted children or adoptive parents of the suspect, accused or defendant;
  2. A person who through his / her testimony would incriminate him/herself, members of the family, and close relatives, adopted children or adoptive parents of committing a crime”.

The MIA’s incorrect interpretation thus implies that every person exercising his or her right to not give testimony is guilty of committing a crime, or the relative of the offender.

This problem should be resolved by establishing basic procedure in the work of the MIA and ensuring that Article 63 of the Constitution is observed.
Excessive legalese in presenting the rights and duties of a person detained

Those detained are not explained their rights in a succinct and accessible manner, but effectively given two sheets of A4 paper citing the relevant articles of the Constitution and CPC. These are written in difficult legal jargon, and even a lawyer in the stressed state of a person who has been detained would have difficulty grasping their meaning. In addition, the detained person is basically not given a chance to read them. Often the investigator after a minute or so says “Sign it, and you can read it later. I haven’t got time to wait.”

We need to take example from the USA where a person is immediately told “Anything you say may be taken and used against you. You have the right to a lawyer. If you do not have the money to pay lawyers’ fees, a lawyer will be provided free of charge”. This clear and succinct explanation is effective and democratic.

Unlawful detention in the form of unwarranted administrative arrest

According to Article 185 of the Code of Administrative Offences (CAO) persistent refusal to comply with the lawful instructions or demand of a police officer carrying out his/her duty is punishable by a fine or corrective work, and if the circumstances of a case, taking the individual offender into account, make the use of these measures insufficient, by administrative arrest for up to 15 days.

These sanctions are imposed by the court. However the courts, through tacit complicity with police officers, ignore two requirements of this article. These are: “the lawful instructions or demand of a police officer” and “the circumstances of a case, taking the individual offender into account”, and impose arrest.

If we were to study the application of administrative arrest by the courts, it would be possible to provide statistics for the significant number of cases of unlawful detention in the form of unwarranted administrative arrest.

The unlawful use of this measure is encouraged by the fact that according to Article 287 of the CAO, the judge’s ruling on imposing administrative punishment is final and not subject to appeal. This is, of course, an archaic norm of the law which restricts Article 55 of the Constitution: “Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies of state power, bodies of local self-government, officials and officers”

The problem is that the Code of Administrative Offences was passed back in Soviet times, on 7 December 1984, and despite changes, remains undemocratic and flawed. Unfortunately this is compounded by the flawed version of Article 29 of the Constitution which contains two concepts “arrested or detained”, but the right of appeal in the court is given only to the “detained” person, whereas both “detention” and “arrest” involved deprivation of liberty.

This problem can be resolved by establishing the possibility to appeal against court rulings on imposing administrative penalties, with the same procedure and time periods as for appealing against resolutions on detention.

It is also important to check how courts observe legislative norms when deciding whether to apply administrative arrest and publication of the relevant judgment of the Plenary Session of the Supreme Court on the results of this check.  
A person may be unlawfully deprived of his/her liberty by being placed in a centre for the reception and distribution of vagrants

Pursuant to Article 11 of the Law “On the police”, police officers have the right with the permission of the prosecutor’s office, to detain up to 30 people suspected of vagrancy. At the same time, “vagrancy” itself as an offence, is not envisaged by current legislation. And although people detained for “vagrancy” are in custody in centres for the reception and distribution of vagrants, this is in violation of Article 29 of the Constitution which states that “No one shall be arrested or held in custody other than pursuant to a substantiated court decision”.

In this instance we have a collision between two norms of legislation: Article 11 of the Law “On the police” and Article 29 of the Constitution.  This is connected with the fact that the first law was adopted in 1990, when the archaic Criminal Code of the USSR was in force, while the Constitution dates from 1996.  The Law was supposed to be brought into line with the Constitution, but this was not done.

It is also worth paying more attention to centres for the reception and distribution of vagrants. Their functioning is not regulated through legislation, aside from those for minors. What happens in such centres is not known, and it is not clear what rights people held in them enjoy.

The Law “On the police” must, therefore, be brought into conformity with the Constitution and there need to be legal provisions for the work of centres for the reception and distribution of vagrants, and for the procedure in sending people there.

People can be detained for a long time by border forces

According to Article 7 of the Law “On the border forces of Ukraine”, border guards are entitled to carry out administrative detention of people who have violated the rules regarding the State border. This detention is for up to 3 hours to draw up a protocol, with the prosecutor’s office being informed in writing within 24 hours from the moment of detention, or for up to 10 days with the permission of the prosecutor’s office if the offenders do not have identity documents on them.

This norm runs counter to Article 29 of the Constitution where it is stated that “bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours”.

As in the previous case, the collision between the two norms is due to the fact that the law on the border forces was adopted before the Constitution and has not been brought into conformity with it.  The situation clearly needs to be rectified.

Unlawfully encouraging people to waive their right to defence

This problem concerns, not only the detained, but all individuals viewed as suspects (accused).

According to Article 63 of the Constitution, “A suspect, person accused, or defendant has the right to defence”. Article 59 says that “In Ukraine, the advocacy acts to ensure the right to a defence against accusation and to provide legal assistance in deciding cases in courts and other state bodies”. Article 21 of the CPC also stipulates this right to defence.  The waiving of ones right to defence is not envisaged in current legislation. Yet law enforcement officers use an unlawful interpretation of Article 46 of the CPC to encourage people to waive this right.
Article 46 of the CPC states that the suspect, person accused, or defendant has the right at any moment of the proceedings to reject invited or appointed defence counsel (i.e. to reject a person, not defence per se).  This rejection is allowed only at the initiative of the suspect, person accused, or defendant and does not deprive the person of the right to ask for the services of another defence lawyer at later stages of the trial.

It is clear that the article merely entitles an individual to turn down a specific invited or appointed defence lawyer. Yet law enforcement officers interpret this norm as forcing an individual for turning down defence altogether, when defence counsel has not yet been invited or appointed. This practice is so widespread that forms have even been prepared with protocols rejecting legal defence.  Each investigator has such a form ready on his/her computer. The grounds are given as being: “I will defend my rights myself”.

As we see, law enforcement officers thus replace the “rejection of a lawyer” with “rejection of defence” which is nowhere envisaged in the law.

A new version is needed of Article 46 of the CPC which makes the participation of defence counsel mandatory for all individuals and all categories of crimes.

These are the main problems of pre-trial detention in law enforcement practice.  Besides the methods for resolving these problems mentioned above, we should look at the ineffective supervisory role played by the prosecutor’s office over detective inquiry and pre-trial investigation units.

Firstly, prosecutor’s offices have their own investigation units. This is inadmissible since control over the activities of employees of the prosecutor’s office is thus carried out by the people’s colleagues, and makes it impossible to speak of effective supervision. Investigation units must therefore not form part of the prosecutor’s office staff.

Secondly, when overseeing adherence to law in carrying out pre-trial investigation, the staff of the prosecutor’s office work in direct and constant contact with officers of detective inquiry and pre-trial investigation units. Clearly they develop normal working relations, which soon turn quite strong.

The problem is that the issue of whether officers of detective inquiry and pre-trial investigation units launch a criminal investigation is also in the exclusive jurisdiction of the prosecutor’s office. The existence of long-standing working relations between the different bodies has led to a situation where it is virtually impossible to launch a criminal investigation against a police officer. The prosecutor’s office in Ukraine is the defence body for the police. This can reach absurd proportions since event the Department of Internal Security of the Ministry of Internal Affairs takes a harder line in the case of crimes committed by police officers than the prosecutor’s office.

Several years ago, in the Lviv local press an article was published. It said that in the Lychakivsky police station a person detained, unable to withstand the torture any longer, committed suicide by jumping from a fourth floor window. After this, officers of the police station reported that the prosecutor had summoned the operations officers of the criminal investigation department and warned them that if there was one more statement alleging torture, the prosecutor would launch a criminal investigation. This was all the punishment meted out to torturers who had driven a man to suicide.

In practice the prosecutor’s office launches criminal investigations only when the victim has sustained medium or grave bodily injuries or has died.

The list of key problems of human rights abuse during detention is not exhaustive and many other problems could also be named.

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