DETENTION IN CUSTODY AS A MANDATORY JUDICIAL RESTRAINT: LEGISLATIVE INNOVATION AND JUDICIAL PRACTICE


The contemporary history of Ukraine is being created before our eyes. When the government was changed after the Maidan in Kiev in 2014, some alterations were introduced into the criminal procedure legislation of Ukraine. In particular, Art. 176, sec. 5 of the Criminal Procedure Code of Ukraine (CPC) was introduced by the Law of Ukraine “On alterations to the Criminal and Criminal Procedure Code of Ukraine with regard to inevitability of punishment for particular crimes against foundations of national security, public safety and corruption crimes”.

The article mentioned above has set the rule according to which persons suspected in or charged with a number of crimes provided for by the Articles 109-114-1, 258-258-5, 260, 261 of the CC of Ukraine can be subjected to detention in custody without right to bail as the only possible judicial restraint. These crimes involve all the Articles of the Part I of the Special Part of the CC of Ukraine “Crimes against foundations of national security of Ukraine” (Art. 109-114-1), some of the articles related to the Part IX of the CC of Ukraine “Crimes against public safety” (Art. 258- 258-5, 260, 261). As regards to the crimes against foundations of national security it should mentioned that much more strict sanctions for this type of crimes have already been provided for previously.

The body entrusted to conduct pretrial investigation into this category of criminal cases is generally the Security Service of Ukraine, and in particular cases it is conducted by the respective authorities of the Police or Prosecutor’s Office.

Law practice of the law union “Tikhonenkov, Nadolia, Shadrin and companions”, where I am a senior partner, demonstrates that courts fully adhere to requirements of the Art. 176, sec.5 of the CPC of Ukraine and all persons suspected in violation of the articles in question are detained. Investigating judges always issue respective rulings even if motions for determination of restriction are not supported by real evidence.

Judges simply ignore any arguments put forward by the defence, including the reference to the European practice is that, whatever the case, suspicion must be reasonable (Art. 5, sub-sections 1 (c) and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950), as well as the legal views reflected in the particular cases decisions of the European Court on Human Rights (ECHR).

Such practice contradicts with Art. 9, sec. 4 of the CPC of Ukraine which envisages court obligation to place a priority on the rules contained in international treaties even if domestic legislation presupposes different decision; in the case in question it is mandatory custody for persons suspected in or accused of the criminal offences mentioned above. Yet, Art. 17 of the Law of Ukraine “On execution of judgements and use of judicial practice of the European Court on Human Rights” specifically states that the standards of the Convention, 1950 and the legal views, reflected in judgements of the ECHR, constitute source of Ukrainian law and consequently are binding.

Courts of first and appellate instances do not observe this statutory requirement that results in unlawful consequences. Law-enforcement officers K. and V. from the city of Lugansk, who are my clients, initially were suspected in violation of the Art. 263, sec. 1 of the CC of Ukraine (illegal use of explosive) and they were subjected to detention with right to bail as a judicial restriction. In that very day, when the bail was paid in and they were supposed to be released, the Prosecutor’s Office came out with another suspicion according to the Art. 258 CC of Ukraine (attempted act of terrorism) and as a consequence they were left in custody. Every time when the term of the judicial restriction was extended the prosecutor referred to the Art. 176, sec. 5 of the CPC of Ukraine in spite of overt unreasonableness of the claims. In a year and a half since the moment of detention the Prosecutor’s Office withdrew the charges under the Art. 258 of the CC of Ukraine and the judicial restriction of the citizen V. was changed for that of personal bond for appearance. Hence, during all this time he unreasonably was under arrest. In this connection a complaint has been lodged to the ECHR which has taken cognizance of the case. In our motions to change judicial restraint we always refer to particular decisions of the ECHR and provisions of the Convention, 1950. Judges, however, do not have practice of administration of this rule. Moreover, in their rulings they do not even fix arguments of the defence relying on European practice. The first exception in my practice was the case of citizen N., when a panel of judges of the Kharkov region Appellate Court referred to a provision of the Convention, 1950, but only to that part of it, which was suitable for the court to substantiate extension of the term of detention.

It is almost impossible to change judicial restriction for the persons suspected in or accused of the violation of the abovementioned articles of the CC of Ukraine. There were only several exceptions, when level of health of our defendants made it impossible for them to stay in a detention facility. For example, the law-enforcement officer K. from Lugansk was released earlier then his colleague V. since there was a medical report and a certificate of impossibility for him to stay in a detention facility because of his state of health. Another such case was when a person accused of violation of the Art. 110, sec. 2 of the CC of Ukraine was released from custody by SeveroDonetsk City Court of Lugansk region after infraction happened in the detention facility. In the reasoning part of the ruling on changing the judicial restriction, the court had to refer to particular decision of the ECHR №30671/04 in the case “Klishyn v. Ukraine”, but the court did not state it as a ground for entering such a decision. Up to the present moment a lawyer of our firm has managed to release from custody such known persons as Nelli Shtepa and Alla Aleksandrovskaia.

Investigative authorities, knowing that if a person is charged on suspicion of violation of particular articles he will inevitably be taken into custody, supplement suspicions with the claims specified in the Art. 176, sec. 5 of the CPC of Ukraine. For instance, when our defendant, citizen A., was released on bail he was also charged on suspicion of violation of the Art. 109 of the CC of Ukraine and was taken into custody. The ground for such a suspicion was merely some videos from the Internet supported by expert reports which are of an especially hypothetical nature. In the given case there was a formal suspicion which later was transformed into accusation. But there was no clear reasoning as required by the Convention 1950. Failure to apply an international treaty resulted in that my defendant was sentenced to imprisonment for six years in the absence of any evidence. There is hope only that the Kharkov region Appellate Court will review the sentence and will decide in accordance with the law.

Recently there have been a number of recourses to our law union of the people whose relatives are under investigation now or even have already been convicted under the Art. 113 of the CC of Ukraine – subversion. It is mainly related to explosion of a railroad. Analysis of the cases suggests that it is quite possible that there was a provocation of law-enforcement bodies. The defendants plead not guilty and make statement as to the use of illegal investigative methods towards them. Sanction of this article provides for a penalty of confinement from 10 to 15 years with or without confiscation of property. The persons, who are under arrest, realize that judges will not pass verdict of not guilty, and so they have to admit guilt and plead guilty in order to mitigate the punishment.

In the regions within the antiterrorist operation zone the Art. 176, sec.5 of the CC of Ukraine is widely applied to the persons suspected of violation of the Art. 260 of the CC of Ukraine – creation of extralegal armed units. The point is that those territories are taken under control at one moment by the Armed Forces of Ukraine, at another by illegal armed units, and therefore the people, who rendered medical or humanitarian assistance, brought food, and some of them just resided in or passed through those regions, became suspects and then accused and criminal defendants under the Art. 260 of the CC of Ukraine. They were often inculpated under sec. 5 of the given article providing for loss of life or other grave consequences. Sanction under this section is a penalty of confinement from 10 to 15 years. There were a great many arrested people, and in order to unload detention facilities investigative authorities were forced to release mass of people by changes of qualification. If a defendant fully admitted his guilt, qualification of his actions was changed into the Art. 260, sec. 2 of the CC of Ukraine and he was sentenced to imprisonment of 3 to 5 years with application of the Art. 75 of the CC of Ukraine.

Nowadays Ukraine is at its crucial point. Similar situations can be found in the history of many countries, where after government changes criminal and criminal procedure legislation became more severe. There is nothing new, but striving for fair state creation, enforcement of rights and freedoms for every citizen requires rejecting a revolutionary principle of expediency and establishing a regime of legality in the form provided for by international treaties, conventions and by European judicial practice. But, unfortunately, there is almost no opportunity to change this common defective practice.