The chapter is prepared by Olena Ashchenko, an expert of Kharkiv human rights protection group.

During 2015 there were no significant changes made to the national legislation regulating the procedure of imprisonment.

In particular, among such changes it is possible to single out only changes to art.208 of the Code of Criminal Procedure, which was supplemented with part three, according to which an authorized official has a right to seize a person suspected of committing a crime, in case there are good reasons to think that the person suspected of committing serious or particularly serious corruption-related crime related to the competence of the National Anti-Corruption Bureau of Ukraine is capable of escaping for the purposes of avoiding criminal responsibility.

However, such change raises concerns as it makes restrictions of guarantees of the rights to liberty for some citizens only in case of apprehension of committing crimes related to acts of corruption.

A negative moment is validity continuation of a norm of art.615 of the Code of Criminal Procedure of Ukraine, which allows the prosecutor performing functions of an investigating judge for the period of 30 days, in particular, seize people. We paid attention to this problem in the previous Annual report of 2014, however, it still remains unsolved nowadays. In other words, for the period of one year and a half there is a norm in Ukraine, which allows imprisonment for 30 days without any judicial review of legality of it, which is a serious violation of norms of the Constitution of Ukraine (art.29), European Convention on Human Rights and International Covenant on Civil and Political Rights.

 

1. Review of ECtHR practice

From the beginning of 2015 the European court of Human Rights (hereinafter referred to as ECtHR) made eight decisions about Ukraine violating different aspects of rights to liberty.

Violation of “reasonable apprehension” principle at the time of selecting a preventative measure.

In the case Malyk v. Ukraine ECtHR admitted violations of Art. 5 § 1 (с) of the Convention due to violation of “reasonable apprehension” principle by the national authorities, observance of which was repeatedly insisted by ECtHR in its previous decisions. In particular, the Court pointed out that despite the fact that national courts will conduct a further review of witness statement an investigator used in his primary order on selecting a preventative measure for an applicant in the form of keeping in custody, the national authorities at the first stage didn’t have any grounds to think that apprehension was reasonable.

In the case Kotiy v. Ukraine ECtHR also stated that the national authorities making a decision on seizing an applicant didn’t have sufficient grounds to think that such seizure was reasonable in the context of actual circumstances of the case. The court paid attention to the circumstance that even though the applicant was put on the wanted list, he wasn’t actually hiding from the investigation, but continued running a business in Ukraine and Germany.

Keeping in custody without a proceeding decision

In the case Orlovskiy v. Ukraine the Court deemed illegal keeping an applicant in custody without any proceeding decision on continuation of the period for keeping in custody for almost one month after the end of the pretrial investigation and taking the criminal case to court. The court pointed out that such problem is systematic in Ukraine, as was mentioned in the previous draft decision “Kharchenko v. Ukraine”.

The same violation of Art.5 § 1 of the Convention was found by the Court in the case of Temchenko v. Ukraine.

Untimely bringing to the judge after seizure

In the case Gal v. Ukraine ECtHR admitted violation of Art.5 § 1 and Art.5 § 3 of the Convention due to 10 minute exceeding of maximum period between seizure of an applicant and bringing him to the judge. The period established at that moment by the legislation was 72 hours. In particular, ECtHR stated that it was an obligation of the national authorities to provide judicial review of the seizure within the time limit established by the law. Violation of this norm tells about abuse of power and illegal seizure.

Keeping in custody after the end of the term for serving punishment in the form of imprisonment for some time

In the case Ruslan Yakovenko v. Ukraine ECtHR admitted violation of the right of an applicant provided by Art.5 § 1 (а) of the Convention due to the fact that the first-instance court upheld a preventative measure in the form of keeping in custody up to the moment the sentence became effective, despite the fact that the applicant has actually discharged the term of sentence during the pretrial investigation and case hearing by the first-instance court. The Court pointed out that the national court was supposed to consider an opportunity to impose an alternative preventative measure to the applicant, which would not be related to imprisonment. The court also found violation of Art. 2 of the Protocol 7 of the Convention, due to the fact that the applicant was actually deprived of an opportunity to appeal against a judgement because there was a risk that he would be in custody up to the end of case hearing by the Court of Appeal.

Illegal hospitalization to psychiatric facility

In the case Zaichenko v. Ukraine No.2 ECtHR admitted violation of Art.5 § 1 (е) of the Convention due to illegal hospitalization of an applicant to psychiatric facility in order to conduct psychiatric examination in the administrative case. The court also paid attention to the existing legislative loophole concerning separate regulation of psychiatric examination in administrative cases.

Violation of right to liberty in the process of criminal extradition

In the case Belozorov v. Russia and Ukraine there were violations of Art.5 § 1 (f) of the Convention due to illegal seizure of an applicant at the territory of Ukraine and his further criminal extradition to the Russian Federation with the lack of the formal request from the government of the latter, violation of Art.80 of the Convention on legal assistance and legal relations in civilm family and criminal case (Minsk Convention).

Duration of keeping in custody without the final court decision.

In the above-mentioned case Orlovskiy v. Ukraine ECtHR found violation of Art. 5 § 3 of the Convention due to long-term (over five years) keeping an applicant in custody in the process of criminal proceedings. In particular, ECtHR pointed out the systematic problem, when national courts go on keeping applicant in custody only on the grounds of the fact that they are accused of committing serious crimes, which is not a sufficient justification of long-term imprisonment.

Similar violations were found in the case Temchenko v. Ukraine, where an applicant was kept in custody during 1 year and 8 months. The Court took into account the age and health condition of the applicant, and the fact that he was accused in the non-violent crime. That’s why such period of keeping in custody was found excessive.

 

2. Brief review of the practice of national courts regarding selection of a preventative measure in the form of keeping in custody.

The general tendency of the practice of national courts remains to be the fact that courts keep making decisions without appropriate grounds for their choice and specific motives. The only reason for selecting such preventative measure is often the fact that “risks haven’t changed” during the time from the last extension of period of keeping in custody.

One of the most popular reasons courts use to substantiate the need for keeping in custody is also accusation in committing the serious crime.

Another ground courts use for extending the period of keeping in custody is the fact that the accused may continue his criminal activity or interfere with the criminal proceeding. Decision of Uzhgorod Municipal District Court of Zakarpattia region dd.13.03.2015[1]; p. 2 art.307 of the Criminal Code of Ukraine: “…the accused may continue his criminal activity, fail to be present in the court and interfere with the criminal proceeding”. In its decision the court didn’t mention the reasons for making conclusions about possible continuation of criminal activity by the accused etc. Any circumstance proving such suggestion of the court wasn’t specified.

It stands to mention about the usage of a preventative measure in the form of keeping in custody regarding suspects, who live at the territory beyond the control of Ukraine.

In particular, in the decision of Severodonetsk Municipal District Court dd.14.05.2015 giving reasons for keeping the accused in custody the court states the following:

“…The investigation substantiated the fact indicating the risks provided by art. 177 of the Code of Criminal Procedure of Ukraine that the suspect may hide from the authorities of pretrial investigation and the court, has illegal effect on witnesses… and …, …, and commit another criminal offense.

The above-mentioned circumstances are proved by the fact that the suspect is registered in the city of Luhansk, which nowadays is not under control of governmental authorities of Ukraine, there are no permanent social conditions at the territory of pretrial investigation…”.

Thus, all people, who lost their places of living as a result of events beyond their control are in a position when no other preventative measure may be used against them, except for keeping in custody, since they can’t prove their social relations in a different manner than existence of registration.

As for courts of appeal, it can be stated than courts refuse to revise decisions of the first-instance courts on appeal, separating the notion “selection” and “usage” of a preventative measure contained in the Code of Criminal Procedure of 2012.

In particular, most part of decisions on selecting a preventative measure in the form of keeping in custody reviewed by the Superior Specialized Civil and Criminal Court of Ukraine is related to a so called “criminal prosecution in absentia” – a novel of a penal legislation of Ukraine, introduced in our legislation in 2015. It should be added that supplements to the Code of Criminal Procedure of Ukraine in the form of provisions allowing criminal proceedings against people on an international wanted list provided an opportunity for courts of appeal to manipulate notions “selection” and “usage” of a preventative measure, which are identical in their meaning.

 

3. The situation with human right in ATO area
   • About people, who are illegally held by representatives of so called “DPR” and “LPR”.

According to information given by the counsellor of the Security Service of Ukraine Chief Executive, representatives of self-declared DPR and LPR continue holding about 148 people, including, civil people[2]. At the same time, representatives of illegally armed groups state that as of today 45 Ukrainian prisoners of war are held at the territory of so called DPR and LPR[3].

However, as of today destiny of people captured in DPR and LPR remains undetermined.

 

• About people in custody on grounds of an open criminal proceeding.

One of the most topical problems related to violation of the right to liberty is unsettled issue with destiny of people in custody in a detention facility due to existence of criminal proceedings initiated before representative of illegally armed groups started invading administrative building and carrying out anti-terror operations.

In particular, due to lack of access to materials of criminal proceedings in court at the territories beyond the control of Ukrainian government, a great number of people are still in custody with no formal decision on extension of the period of keeping in custody and any judicial review of the rationale for further imprisonment.

It is still unclear why representatives of Ukrainian authorities didn’t take necessary measures to evacuate case materials from courts of Donetsk and Luhansk regions in April-May 2014, when illegally armed groups started invading buildings of governmental authorities and law enforcement bodies. However, at that time some courts continued their operation and made proceeding decisions, including decisions on extension of the period of keeping in custody. The validity period of these decisions soon expired, and new decision haven’t been made.

 

4. Violation of the right to liberty in reports of the U.N. High Commissioner for Human Rights.

Office of High Commissioner for Human Rights (hereinafter referred to as OHCHR) made a report about the condition of human rights for the period from May 16 to August 15 of the year 2015, which said about violation of the right to liberty and personal inviolability of Ukraine during events in the East of Ukraine from illegally armed groups and security officials.

In particular, the report stated: “The estimated number of people held by armed groups are constantly changing, mainly, because of variable model of constant kidnapping, seizure and dismissal. According to the Security Service of Ukraine, as of 15^th of August  172 people were held by representatives of “Donetsk People’s Republic” and “Luhansk People’s Republic”. This figure, however, refers only to people, whose location was determined by the Government of Ukraine and who were sent dismissal requests.

A range of simultaneous dismissals (so called “exchanges”) happed in the process of a reporting period. This process was short of transparency and it didn’t result in the appreciable quantity of dismissals. OHCHR keeps standing for exchange of ” hostages and illegally detained people” based on “everyone for everyone” principle, as it is provided in the package of measures for implementation of Minsk agreements dd.12.02.2015”[4].

OHCHR also pays attention to illegal seizures, carried out by representatives of law enforcement bodies and Security Service of Ukraine. In particular, paragraph 49 of the report states: “OHCHR keeps noticing constant cases of illegal detentions and detentions together with isolation from the outside world by law enforcement bodies of Ukraine (mainly, on the part of the Security Service of Ukraine), military and paramilitary groups (first of all, by former voluntary battalions, which are currently officially included in the Armed Forces of Ukraine, National Guards and Police). These incidents also followed by tortures and abusive treatment, as well as violation of procedural rights. OHCHR keeps standing for appropriate and timely investigation of each recorded incident and legal prosecution of guilty people. OHCHR also calls the Security Service of Ukraine, the Ministry of Internal Affairs and the Ministry of Defence to bring an end to such practice and improve operation of their employees in the sphere of human rights”[5].

 

Recommendations

• Make changes to Art.315 of the Code of Criminal Procedure of Ukraine on the procedure of extension of the period of keeping in custody in the preparatory court hearing according to recommendations mentioned by the Superior Specialized Court of Ukraine in case law analysis regarding usage of procedural legislation for selection, extension of a preventative measure in the form of keeping in custody by the first-instance courts and courts of appeal” (Resolution of Plenum of the Superior Specialized Court of Ukraine 14 dd.19.12.2014)[6]
• To the Supreme Court of Ukraine: to adopt a resolution about compliance with legislation when detaining a person, using a preventative measure in the form of keeping in custody and extending periods for keeping in custody, with consideration of the practice of ECtHR, including in criminal cases according to the Code of Criminal Procedure of Ukraine of 1960.
• Make changes to Art.331 of the Code of Criminal Procedure of Ukraine, which will oblige courts to review the rationale for extending the period for keeping the accused in custody immediately after the receipt of the criminal information from the prosecutor.
• Take necessary measures to prepare investigating judges making decisions on selection of preventative measures in the form of keeping in custody with the purpose to provide compliance with the guarantees of human rights, which are specified in the Code of Criminal Procedure and practice of the European Court of Human Rights.
• Provide renewal of materials of criminal proceedings, which are stored in court at the territories beyond the control of the government authorities, with the purpose to conduct court hearing of cases within a reasonable period of time and restore the violated rights to liberty of people in custody without a court decision.
• Conduct appropriate investigation of incidents of illegal imprisonment at the territory of conducting anti-terror operations, which are carried out by representatives of illegally armed groups and employees of law enforcement bodies and the military of Ukraine.

[1] http://reyestr.court.gov.ua/Review/43540827

[2] http://dt.ua/UKRAINE/v-poloni-u-boyovikiv-i-na-teritoriyi-rf-perebuvaye-148-ukrayinciv-188233_.html

[3] http://infoua.org/news-124595-d-pushylin-rozpoviv-pro-kilkist-vijskovykh-yaki-perebuvayut-v-poloni-dnr.html

[4] http://www.ohchr.org/Documents/Countries/UA/11thOHCHRreportUkraine.pdf, §§ 40-41

[5] http://www.ohchr.org/Documents/Countries/UA/11thOHCHRreportUkraine.pdf, § 49

[6] http://sc.gov.ua/ua/postanovi_za_2014_rik.html