Publication

Right to a fair trial

Section prepared by Oleksandr Banchuk and Ilona Dmytriyeva, the Center for Political and Legislative Reforms.

 

DURING CRIMINAL PROCEEDINGS [1]

In 2015 in the sphere of criminal justice of Ukraine there were no considerable breakthroughs as well as no significant errors. However with the purpose of reforming the judicial sphere including struggle against corruption and terrorism in Ukraine are adopted and/or proposed for approving the legislative acts which lead to significant restriction of the human rights and freedoms.

Nowadays a considerable part of detentions which occur without receiving approval from investigating judge or the court is held illegally after expiry of the time of the act and without any grounds state in article 208 of the Criminal Procedure Code. The result of undertaken studies show that in 68 % of cases the notification of the Centers of free secondary legal aid about detention of the person are made with delay[2].

 

  1. Large powers of the National Anti-Corruption Bureau of Ukraine

The Law of Ukraine “On amendments to certain legislative acts of Ukraine concerning functional support to the National Anti-Corruption Bureau of Ukraine and the National Agency for Prevention of Corruption” was approved on February 12, 2015 without taking into consideration the opinion of the public experts who insisted on the importance of elimination of a number of risks for the human rights and freedoms [3].

This Law made amendments in a row of provisions of the Criminal Procedure Code the result of which is significant weakening of judicial control on observance of rights of suspected persons. In particular the amendments of part 1 of the article 159, part 2 of the article 170 of the Criminal Procedure Code of Ukraine have led to elimination of judicial control on temporary access to, removal of and short term arrest of the property – now these measures should be made on the basis of decision of the Head of the NABU. These provisions violate firstly the constitutional guarantees of property and secondly the adversarial principle since for access to objects and documents the defense must obtain permission of the court and detectives of the NABU may seize property in a simplified procedure without going to court.

The provisions of the Law also violate the right to liberty and security of person because amendments to paragraph 3 of part 1 of the article 208 of the Criminal Procedure Code of Ukraine enable the possibility to detain persons without prior court order in the case “if there are reasonable grounds to believe that a a person suspected of committing grave or especially grave crime connected with corruption ascribed by the law to jurisdiction of the National Anti-Corruption Bureau of Ukraine can try to escape with the purpose of avoidance of criminal responsibility”.

In addition despite the experience of the developed European countries where the practice of conclusion of agreement in criminal proceedings is permitted only in relation to crimes of small or medium gravity the law provides a possibility of conclusion of agreement on admission of guilt even for extremely grave crimes which are under investigation of the NABU (amendments to part 4 of the article 469 of the Criminal Procedure Code of Ukraine).

The risk consists in the fact that a person who has concluded such an agreement will not be able to make a fully valid appeal in the future.

 

  1. The Law of Ukraine “On national police”

On July 2, 2015 there was adopted the specialized Law “On national police” which contains several provisions that meet international standards and are designed to promote the development of democracy.

In particular, the Law states that the main task of the police is to provide police services in spheres of ensuring public safety and order, protection of the human rights and freedoms as well as of interests of society and the state, fighting criminality (the article 2). Therefore the declared functions of police have a servicing character – that is expressed in the provision about rendering to public the services of keeping the adequate level of security.

There was significantly amended the procedure of application of police measures and impact munitions – earlier such regulation was realized mainly on the level of subordinate acts and now the appropriate procedures are stated in the Law ensuring reduction of risk of abuses made by law enforcement officers. For example, such provisions contain the prohibition of use of water cannons if the air temperature is below + 10°C (paragraph 4 of part 4 of the art. 45 of the Law).

The Law of Ukraine “On national police” provides a definition of police measure that is an action or a set of actions of preventive or coercive nature which restricts certain rights and freedoms of a person and is used by the police officers in accordance with legislation to ensure the performance of powers stated for police. Selection of the police measure in every certain case is connected with demands on its legality, necessity, proportionality and effectiveness.

However, together with these positive innovations the Law of Ukraine “On national police” contains a number of provisions which potentially dangerous for the human rights. In particular the article 34 of the Law provides the performance of so called superficial check. This is a preventive police measure that consists in performance of a visual check of a person, passing over the surface of the clothing of such person with a hand, special device or tool, visual check of thing or vehicle (part 1 of the art. 34).

During superficial check the police officer has the right to demand from a person to open a deck of luggage locker and/or a door of a vehicle. In fact such powers bring this police measure nearer to the police inspection but without the requirement to obtain a permission of the court. It contradicts with the article 30 of the Constitution of Ukraine according to which intrusion into a person’s domicile or other property, inspection or search thereof cannot be permitted except when under a substantiated court decision. Since a vehicle is considered to be “another property of a person”[4] the reasons and conditions for conducting superficial check should have been the same as those which are used for conducting an inspection.

The Constitution establishes exceptions from the rules connected with the mandatory court permission for intrusion into a person’s domicile or other property, and inspection or search thereof. This is allowed only in case of necessity of saving lives and property of people and in case of direct prosecution of persons suspected of committing a crime.

In comparison with these exceptions the list of reasons for superficial check stated in the Law of Ukraine “On national police” is much bigger:

1) sufficient reason to believe that in a vehicle there is an offender or a person the freedom of which is restricted in a illegal way;

2) sufficient reason to believe that in a vehicle there is a thing the circulation of which is prohibited or restricted or which presents a threat to the life or health of such person or another persons;

3) sufficient reason to believe that a thing or a vehicle is an instrument of crime and/or is located in the place where a crime can be committed for prevention of which is necessary to perform a superficial check.

Provision of the article 34 of the La of Ukraine “On national police” are also not in compliance with part 3 of the article 233 of the Criminal Procedure Code of Ukraine which gives permission for intrusion into a person’s domicile or other property before receiving approval from investigating judge only in urgent cases connected with preservation of life and property of people or with direct pursuit of of persons suspected of committing a crime.

Therefore at least two reasons for superficial check are unconstitutional and should be excluded from text of the Law – these are the following: a sufficient reason to believe that in a vehicle there is a thing the circulation of which is prohibited or restricted and sufficient reason to believe that a thing or a vehicle is an instrument of crime and/or is located in the place where a crime can be committed for prevention of which is necessary to perform a superficial check.

It is also evident that it is necessary to bring certain provisions of the Law of Ukraine “On national police” into compliance with provisions of the Criminal Procedure Code. Thus the principle of legality (part 3 of article 9 of the Code) requires that the laws and other legal acts of Ukraine concerning criminal proceedings should comply with the contents of the Code. This part also contains a direct prohibition to apply in the process of criminal proceedings any law that is contrary to the Criminal Procedure Code.

The article 32 of the Law of Ukraine “On national police” legitimizes the current practice of militia when any person can be stopped with the requirement to provide documents proving its identity for verification. Such verification of documents violates the frames of personal freedom which are guaranteed with the article 29 of the Constitution of Ukraine. In addition according of the article 32 of the Law the police officer can stop a person and demand to provide documents if there is a sufficient reason to believe that such person “has an intention to commit a crime”. This provision imposes on any person the unconstitutional obligation to bring his/her personal documents all the time because otherwise a police officer has the right to detain such person and to bring this person to police department for identification.

According to the current legislation it is possible to ascertain the circumstances (by means of interview) in cases of administrative crimes during drawing up the protocol. Separately there also exists a procedural action in the form of interrogation in criminal proceedings regulated by the Criminal Procedure Code. However, the article 33 of the Law introduced the new police measure “questioning” which can also be conducted in the police department. This means that such questioning can be manipulated and there exists a possibility to substitute with this concept the actual perpetual detention and even to use the obtained information with the purpose of criminal accusation of the person.

The article 37 of the Law of Ukraine “On national police” introduces a restriction of the property rights of persons despite the article 41 of the Constitution of Ukraine. For example the Criminal Procedure Code provides that seizure of things is possible if only it goes about a crime. But the new Law actually allows temporary restriction of possession (in context of seizure of property) of a thing or a vehicle “in order to prevent the danger if there is a sufficient reason to believe that a thing or a vehicle can be used by a person for the purpose of infringement on the life and health of such person or on the life or health of another person or with the purpose to damage someone’s thing. At the same time the police officer is obliged to inform about the causes of the measure used by him/her only at the request of a person and not in any case. This provision is disproportional and does not comply with provisions of the Constitution.

In accordance with the article 26 of the Law the national police should have 18 databases and has a direct on-line access to information and information resources of other public authorities. In fact this provision violates both the European standards and the constitutional frames of protection of secrecy of the personal and family life (the article 32 of the Constitution of Ukraine). For example the provision of access to the register of notarial acts or to the register of taxpayers (or similar registers) to the patrol police officer does not have sufficient legal and practical basis. A big risk for abuses made by law enforcement officers is that in this way anybody can quickly gather information about any political opponent, business competitor or public activist “by somebody’s order”. Therefore the access to police databases is justified exclusively during pre-trial investigation of criminal offences (as it was before the moment of the adoption of the new Law).

It occurs also doubts in advisability of keeping the database of “persons in relation to which the police carry out preventive work” (paragraph 1 of part 1of the article 26 of the Law). Since the purpose for such audit and the criteria for inclusion of any person in a row of “problem” ones is not defined it leads to conducting parallel with the work with various “asocial elements” held during the Soviet era which essentially was a veiled mechanism of struggle with persons who were political undesirables.

The law also does not define the period of storage of such data in the databases of the Ministry of Internal Affairs that is a significant gap and threat to the human rights. According to the Appendix to the Recommendation No. R(87)15 of the Committee of Ministers of the Council of Europe to the member states that regulates the use of personal data in the police sector it should be made so that the personal data collected for police purposes were deleted when they are no longer needed for the purposes for which they were stored (paragraph 1.1 of the Principle 7).

 

  1. Dangerous legislative initiatives

Attempts to abolish the possibility to stand bail in criminal proceedings

During 2015 the state leaders including the Prime Minister of Ukraine expressed the idea of necessity to abolish the possibility to stand bail for persons suspected of committing corruption crimes [5].  The deputies registered five draft laws connected with this issue – draft laws No. 1838, 1871, 2086, 2284 and 2330 – but a part of them were later recalled.

Such legislative initiatives seemed to be inconsistent steps from the point of view of the democratic orientation of the government that is particularly emphasized after the events of Euromaidan. In democratic countries the Criminal Procedure Code should primarily leads to protection of the human rights and freedoms and not be used for creation of a  repressive mechanism. Although the political motives of the officials is quite understandable because the society wants to see quick results of fight against corruption which actually do not still exist.

There are concerns that the use of bail will lead to escape of persons suspected in committing corruption crimes however the data of the judicial statistics show that there are no significant problems connected with fulfillment of the conditions of bail by the suspected persons. During the first half of 2015 the suspected persons transferred on accounts of the government about 12 million UAH as bails. From this amount was charged only 94 thousand UAH which is only 0.78%.

Due to the bail used as a preventive measure there appears a real possibility to pay compensation to the victims of crimes: because the money transferred to the account of the government as bail (and it goes about annually income in amount of 30-40 million UAH) are used as payments for damages for injured parties and the government after conviction of such persons.

However, the main argument in favor of the bail lies not in the financial sphere but in the legal one. It consists in the fact that this is an effective preventive measure that is an alternative to detention in custody.

The only suspicion that a person has committed a certain even the extremely grieve crime is not enough for restriction or deprivation of liberty of such person. There should definitely exist other reasons for substantiation of the risk of hiding such suspected person, of committing new crimes, of making influence on witnesses and the investigation, etc. In this case it shows the exclusiveness of use of detention in custody as the extreme preventive measure.

In addition the cancellation or limitation of the scope of application of the bail will lead to a narrowing of the content and scope of the existing rights and freedoms that contradicts with the provision of part three of article 22 of the Constitution.

 

Private prosecution in criminal proceedings.

On May 22, 2015 the Verkhovna Rada adopted the Law No. 1165 “On amendments to certain legislative acts of Ukraine regarding the strengthening of the role of civil society in combating corruption crimes”. It was connected with introduction of the institute of public prosecution to the criminal procedural law in the sphere of crimes of professional misconduct with the evidence of corruption with the purpose of obtain by the government the real help of the civil society in combating corruption.

Although the fight against corruption in Ukraine still has not shown any significant results [6] the transfer of functions which should be fulfilled by the state authorities to the public in this case is inappropriate and even dangerous for the human rights and freedoms because of the following.

According to the article 17 of the Constitution of Ukraine the issues of national security are within the competence of law enforcement authorities. Among these issues in accordance with the Law of Ukraine “On principles of national security of Ukraine” is the fight against corruption. That means that this is a constitutional function of law enforcement authorities and it is unusual for physical persons.

The provisions of this Law did not put forward any requirements or restrictions for citizens who could serve as an investigator in the process of control of work of the official person. However, people may have different motives including personal dislike to such official person. In addition the initiative of such citizen (citizens) could be caused not by an active social position but by bribery or other external influence.

Such public prosecutor received the right to collect evidence by means of use of special technical appliances for a secret receiving of information which could lead to numerous violations of the human rights including the right to respect for private and family life. In this situation the principle of equality of citizens could be violated and the state authorities could be deprived of ability to control the process of investigation. It could tear up the foundations of the state law enforcement system since both independent and at the same time controlled by society law enforcement authorities had to protect the rights and freedoms of all citizens and the function of combating corruption should be performed by professionals responsible for their activities.

In view of these arguments the President of Ukraine imposed a veto on this Law on June 19, 2015.

 

  1. Statistical data[7]

In the first half of 2015 the percentage of cases of criminal proceedings in which were concluded agreements have not almost changed in comparison with the first half of 2014: 21.3% against 23% respectively (of the total number of cases with pronouncement of sentence).

At the same time the relation between types of agreements have changed: if in the first half of 2014 the number of agreements on admission of guilt was far greater than the settlement agreements (65% vs. 35% of the total number of cases with pronouncement of sentence), in the first half of 2015 this relation was almost equal (52.5% and 47.5% respectively).

The percentage of verdicts of not guilty almost has not changed: during the first half of 2015 the number of persons who have been declared not guilty in accordance with the Criminal Procedure Code was 382 or 0.7% of the total number of persons in relation to which the sentences were pronounced (in the first half of 2014 – about 308 people or 0.5%); in accordance with the Criminal Procedure Code of 1960 there was pronounced verdicts of no guilty for about 50 people or 6.3% of the total number of persons in relation to which the sentences were pronounced (in the first half of 2014 – about 127 people or 4.3%).

The number of petitions and complaints studied by the investigating judge during the preliminary investigation in the first half of 2015 increased by 18.4% in comparison with the first half of 2014.

The largest number among them arrange the following: requests for temporary access to objects and documents – 49.1% of the total number of petitions and complaints studied by the investigating judge during the preliminary investigation; requests for search of domicile or other property – 13.2%; requests for preventive measures – 11.2%. It should be noted that the percentage of petitions and complaints granted by the investigating judge is extremely high – 80.6%.

In the first half of 2015 the investigating judges of local courts examined request on use of preventive measure in the form of personal liability by 26.7% less in comparison with the same period of 2014, requests for use of guaranty of defendant’s appearance with criminal responsibility for nonappearance – by 62.7% less, requests for use of bail- by 53.3%. At the same time the number of request for use of preventive measure in the form of detention in custody increased by 50.5% and in most cases (63%) these requests were satisfied.

This statistical information is the evidence of a negative trend for reduction of the use of preventive measures which are alternative to detention in custody and indicates the lack of awareness of value of the human freedom, lack of understanding of the nature of detention in custody as an exceptional measure of restraint that should be applied only in case when other softer preventive measure cannot be used.

 

Recommendations

  1. TheVerkhovna Rada of Ukraine is recommended to review the provisions of the Law of Ukraine “On national police” with the purpose of bring it into compliance with the Constitution of Ukraine in particular in the following spheres:

– reasons for superficial check performed by police workers;

– maintenance of bases (banks) of data of persons and periods of storing information in such bases.

  1. TheVerkhovna Rada of Ukraine is recommended to not amend the legal procedure of use of pre-trial restrictions in relation to persons suspected in criminal actions.
  2. TheVerkhovna Rada of Ukraine is recommended to decline an idea of introducing the institution of private prosecution in criminal proceedings.

 

[1] Section prepared by Oleksandr Banchuk and Ilona Dmytriyeva, the Center for Political and Legislative Reforms
[2] Human rights behind closed doors / Report on the basis of results of the research “Procedural guarantees of retained persons”. – Kyiv, 2015 // http://www.irf.ua/knowledgebase/publications/zvit_za_rezultatami_ doslidzhennya_protsesualni_garantii_zatrimanikh_osib/
[3] Human rights activists urge to not struggle with corruption by means of violation of human rights // http://helsinki.org.ua/index.php?id=1422905360

[4] Ref. sec. 2 art. 233 of the Code of Criminal Procedure; item 11 of the Decree of the plenary session of the Supreme Court of Ukraine No. 2 “On some issues of application by the courts of Ukraine of legislation when granting permissions for temporary restriction of certain constitutional rights and freedoms of human and citizen in the course of investigative activities, inquest and pretrial investigation” dated March 28, 2008
[5] Yatsenyuk suggests that Verkhovna Rada strengthens the punishment for bribe takers // http://www.pravda.com.ua/news/2015/03/27/7062848/
[6] Failure of anti-corruption measures: businessmen did not notice reduction of the number of bribes // http://www.liga.net/infografica/230913_antikorruptsionnyy-proval-biznes-ne-zametil-umensheniya-vzyatok.htm
[7] Analysis of data of the judicial statistics on proceeding in cases and materials by local general courts and appeal courts of regions and the city of Kyiv for the first half of 2015 // http://sc.gov.ua/uploads/tinymce/files//%D0%90%D0%BD%D0%B0%D0%BB%D1%96%D0%B7%20%D1%81%D1%83%D0%B4%D1%96%D0%B2,%20I%20%D0%BF%D1%96%D0%B2%D1%80%D1%96%D1%87%D1%87%D1%8F%202015%20%D1%80%D0%BE%D0%BA%D1%83.doc

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