Oleksandr Banchuk: The Freedom we lose (Dzerkalo tyzhnya, No. 15)

NB: The article was published in “Dzerkalo tyzhnya. Ukraine” newspaper No. 15 (April 22-April 27).

Many documents have been adopted in Ukraine to raise level of human rights protection and improve respective norms of the Constitution.

The list includes law on access to public information; on free legal assistance; on advocacy; on public associations; on the national preventive mechanism (empowers the public to control places of detention); the Criminal Procedural Code, which helped to adjust Ukrainian system of criminal justice in accordance with European standards.

Victory of the Revolution of Dignity provided great possibilities for further consolidation of constitutional rights of citizens in their relations with the state. This position is also proven by analysis of the National Human Rights Strategy and the Judicial System, Legal Procedure and Related Legal Institutions Reform Strategy for 2015-2020. Those documents have been signed into law by the President and the Parliament has developed detailed action plans on implementation of those strategic documents.

Though, analyzing vast changes to the legislation that occurred during last three years, it becomes clear that authorities have turned all those strategies into “useless scrap of paper” paying no attention even to the Constitution requirements (especially its second section on human rights and freedoms).

There is a timeline of cases, when authorities neglected Constitutional rights and freedoms.

August 12, 2014 – three laws were adopted “On Amendments to the Criminal Procedural Code of Ukraine Regarding Special Regime of Pre-Trial Investigation under Martial Law, in State of Emergency and in the Anti-Terrorist Operation Area”, “On Amendments to the Law of Ukraine “On Fighting Terrorism” On Preventive Detention of Persons Involved in Terrorist Activity in the Area of Anti-Terrorist Operation for the period over 72 hours), “On additions to the Law of Ukraine “On the Police” regarding conditions for the use of force, impact munitions and firearms in the area of the anti-terrorist operation”. These laws authorize the prosecutor (during the investigation of a number of crimes in the area of the anti-terrorist operation) to allow independently, without a court decision, to conduct searches of dwellings or other property, to conduct covert investigative activities and detain suspects in custody for a period of up to 30 days.

Abovementioned regulations contradict the Constitution of Ukraine. Articles 30 and 31 of the Main Law state that conducting a search of a dwelling, violation of secrecy of correspondence and of telephone conversations are allowed solely upon the reasoned judgment of a court. According to Article 29 of the Constitution no suspect shall be arrested or detained in custody except upon the reasoned judgment of a court. At the same time the decision to detain a person or release it should be made by the court in 72 hours. “Rule of 72 hours” works under martial law or the state of emergency. Aside from that, such authorities of law enforcement officials are qualified as appropriation of court’s functions, what is forbidden according to Article 124 of the Constitution.

Practical use of such regime that restricts human rights is very doubtful. Because, even if courts in the ATO zone don’t work well, law enforcement officers can transport the detainee to the closest court in adjacent region or area within 72 hours and ensure the fulfillment of the constitutional guarantees.

August 14, 2014 – restoration of the Military Prosecutor’s Office. This act was justified by the war in eastern part of the country and consistent need to provide effective control over military personnel and members of military units, which have significantly increased in number. In time, the Military Prosecutor’s Office has become the main body to carry out a pre-trial investigation. Major proceedings, carried out by the Military Prosecutor’s Office, have nothing to do with Armed Forces or the National Guard. Suspects, who have been charged in these cases were civilians.

Any investigation of a crime, including those committed by service personnel, should be free of subjectivity. And the main risk in respect for the Military Prosecutor’s Office is that the opinion of the commander is more important to the military men than statutory provisions. Taking into consideration the illegal practice of appointing candidates to the post of military prosecutor by the President, which was introduced on September 22, 2014, a possibility to exert political influence over such investigations becomes obvious. By this decision the President encroached upon independence of the judicial system (which includes prosecution bodies) that is guaranteed by the Constitution.

“Politically motivated criminal persecution” criticized during the presidency of Viktor Yanukovytch, is one short step away from such influence.

Position of the Council of Europe is unequivocal – appointment, promotion and dismissal of military prosecutors should be the same as other prosecutors. That is why, for example, in Germany there is a department of military prosecutor’s office, where only civil prosecutors work. And it doesn’t prevent them from successfully investigating all crimes, committed by German military personnel on the territory of Afghanistan, Iraq and other “hot spots” around the word.

October 7, 2014 – in absentia pre-trial investigations and trial proceedings were introduced. Such practice provides for conviction of individuals, whose whereabouts is unknown, for grave and gravest crimes. This law virtually deprives convicted persons of a right to access justice and a fair trial. Until the moment Ukraine had avoided such proceedings within its legal system and hadn’t recognized in absentia sentences delivered in other countries.

Considering such restrictions of human rights, European countries admit in absentia conviction only in cases of not major crimes. Anglo-American judicial system doesn’t provide for in absentia conviction, because in the USA and Great Britain a jury plays a great role in the criminal process, bringing in a verdict relying on evidences and testimonies of the prosecution and the defense. The jury trial is impossible if the charged person is absent. That is why this system introduced a reasonable measure of in absentia confiscation of property that had been obtained in an illegal way by persons, who hide from bodies of the pre-trial investigation.

Also, Ukrainian law about in absentia conviction provides for detaining in custody individuals suspected in crimes against the state. Against European norms other preventive mechanisms are prohibited (bail, house arrest, electronic monitoring, etc.). So, it is enough for the prosecutor’s office to report that it suspects a person of having committed a crime against the state and this fact will be sufficient to put the suspect to the remand center for at least two months. Such practice reverses the role of the court – the only thing it can do is to “consecrate” all wishes of the persecution.

July 2, 2015 – the Law on National Police was adopted. This law became the first considerable legislative step towards the MIA reformation. But it includes many provisions, which substantially restrict human rights. Experts of the Council of Europe and the OSCE have already paid their attention to the discrepancy.

Unlimited access of the police officers to information about citizens is among the most profound threats of the new law. The police is going to run 18 data bases and have access to data bases of other state bodies. There are twenty more of them.

It means that any police officer on duty has a right of a prompt, unimpeded access to all information about a person. It violates European standards and constitutional borders of private and family life (Article 32 of the Constitution), because such access should be provided only for the pre-trial investigation. This situation hides a considerable risk of abuse, because in that way it is a five second deal to collect “custom-ordered” information about any political opponent, business competitor, inconvenient journalist or public activist. Moreover, the law provides completely “soviet” data base of individuals under the “preventive work”.

Article 26 of the Law on Police provides that police officers can get fingerprints and other biometrical data during the administrative arrest. But no document states a term to keep this data. It is inadmissible in a democratic society and contradicts Article 8 of the European Convention on Human Rights.

The law also legitimizes the police practice allowing officers to stop any passerby and require his/her documents. It is acceptable only when there is a reason to believe that the “person has an intention to commit an offence”. This provision unconstitutionally obliges any person to bring its documents all the time. In case if a person doesn’t have its documents, the police officer has a right to apprehend it and send to the police precinct for identification.

There are also risks of the property rights violations. Article 37 of the Law provides for such an activity as “restriction of actual possession of a thing”. Police officers were authorized to confiscate a thing or a vehicle, which may be used by a person for the purpose of infringement on its life and health or the life or health of another person, or damage to someone else’s stuff. At the same time the Criminal Procedural Code in force states that restriction and confiscation of certain things is possible only when we are talking about a crime. The Code on Administrative Offences also permits to confiscate things and documents in case of a violation.

There are many remarks regarding guidelines governing the use of firearms by the police. The main rule regarding the use of firearms is a danger of death or serious bodily injury of the police officer or other person. But wording of the law doesn’t always correspond to this rule. European Court on Human Rights clearly stated that lethal force was forbidden against a person trying to escape from the arrest or during the detention, if the person was not directly suspected of intent to commit an act of violence. The provision that permits to use firearms without warning for “filing an alarm or call for assistance” is also problematic, because any shot into the air can cause a harm or death.

March 16, 2017 – procedure of in absentia conviction was “improved”. Major part of the law doesn’t regard in absentia criminal proceeding, improvement of which was the main purpose of the law. Instead, we’ve got a threat to a number of major human rights.

First of all, the time to review materials of the proceeding is excluded from the general term of the pre-trial investigation. It violates the right to protection and reasonable terms of the proceeding. According to approved changes, investigative bodies are not limited in time and are not obliged to follow a special order in providing the defense with materials related to the proceeding, what creates conditions for significant abuse – deliberately procrastinate transfer of materials to the defense delaying it for months or even years. During this indefinite time the person is considered suspected and subjected to measures to ensure the proceeding (attachment of property, discharge from the office, restriction of a special right), and preventive measures, not including detention in custody (house arrest, use of electronic monitoring devices, injunction on leaving the place of living, suppression of a foreign passport, etc.).

Second, new rules on calculation of the investigation terms, provided that proceedings were pooled or parted, violate principles regarding reasonable terms of the criminal proceeding. These rules allow the prosecutor pool or part proceeding countless times with the only reason to keep the person under suspicion during months and years, and use above-mentioned measures towards it.

Third, conclusion of agreements on admission of guilt in all categories of cases on grave crimes, including those with victims, violates the right to protection and victims’ rights. There is no such practice in European countries. Investigative bodies get the opportunity to raise the detection rate by demanding a confession, intimidating and threatening with eternal detention in case of a refusal to obey. To speed up the proceeding with an agreement to the court investigative bodies may put pressure on victims too, trying to get a permit to conclude an agreement with the suspect, neglecting victims’ right to get reimbursement of damages. The possibility to conclude an agreement in all proceedings on gravest crimes will provide persons suspected of terrorist acts with an opportunity to mitigate its accountability.

Fourth, transitional provisions of the law lack rules regarding use of its innovations in ongoing criminal proceedings, what violates principle of legal certainty as a constituent part of the rule of law. The list of unsettled questions includes the possibility to use rules on familiarization with materials of a proceeding, calculation of terms of the investigation and conclusion of agreements on admission of guilt in criminal proceedings, which had started before adoption of the law and will continue after the law will come into force. Thousands of suspects, charged and victims will be trapped in such situation of legal uncertainty.

March 23, 2017 – public anti-corruption activists were made to declare their income just as state officials and politicians. This law was adopted by politicians in order to take vengeance on public organizations and its provisions considerably violate constitutional guaranties. Average citizens are obliged to fulfill additional duties (except for declaration of their property and outcomes) and follow restrictions and prohibitions according to their occupation (for instance, public anti-corruption activity). Hence, active citizens have been equated to officials of the state and self administration bodies, and their freedom of expression was significantly restricted. Everyone, who participated in any anti-corruption activity (conference, seminar, demonstration) and hasn’t submitted an electronic declaration, will be made criminally or administratively liable.

Yanukovytch and co. haven’t even dreamed about it!

Purposes of these “innovations” are different – starting with a fight against corruption and ending with combating terrorism and protection of interests of the military personnel. But the result is always the same – restriction of citizens’ rights guaranteed by the Constitution.

Also, we have to remember dozens (!) of other authorities’ initiatives dangerous for human rights, which have been blocked by efforts of expert and human rights organizations. Most of ideas have already been shaped as draft laws.

The list of such initiatives includes:

  • cancel the use of bail for individuals suspected of corruption and other offences;
  • repeal presumption of innocence in administrative offence cases;
  • establish a presumption of rightness of the police officers;
  • introduce criminal liability for organization of paid up meetings and demonstrations;
  • prolong terms of a pre-trial investigation from 12 to 18 months;
  • prolong terms of detaining suspects in custody from 12 to 18 months;
  • restore military courts.

No one can guarantee that there will be no more efforts to promote these provisions. That is why we keep fighting for our rights and freedoms.

Ukraine has been dragged into exhaustive war against Russia for three years already – the war for our independence, territorial integrity and freedom. But authorities have managed to decrease volume of our freedoms catastrophically during this time.


Oleksandr Banchuk,
PhD in Law, expert on administrative-tort law and criminal justice,
Center for Policy and Legal Reforms

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