Imposition of a Pre-Trial Restriction Based on a Judgment That Has Not Yet Become Final

In practice, it is quite common for courts of first instance, when handing down a guilty verdict, to simultaneously modify the preventive measure imposed on the defendant by setting a term for such a measure, citing the event—until the verdict becomes final. For example, here is a quote from an actual judgment: “To impose on the convicted person a pretrial measure in the form of detention until the judgment becomes final, taking him into custody directly from the courtroom.”

This issue is partially addressed in paragraph 9 of a letter prepared on the basis of Resolution No. 14 of the Plenum of the Supreme Court of Ukraine dated December 19, 2014, in which the Court noted: “In order to ensure the rights of the convicted person, if it is impossible to complete the proceedings on appeal before the expiration of the two-month period from the date of the judgment by the court of first instance, the appellate court must, regardless of whether the parties to the criminal proceedings have filed relevant motions, consider the issue of the appropriateness and justification of pretrial detention. In such a case, the court shall apply the provisions of Article 331 of the Code of Criminal Procedure until the conclusion of the proceedings in the appellate court.”

At the same time, the High Specialized Court of Ukraine did not address or clarify another problematic issue in the aforementioned Letter: the possibility of enforcing the judgment, specifically regarding the imposition or modification of a preventive measure, before the judgment becomes final.

Thus, subparagraph 4 of paragraph 1 of Part 4 of Article 374 of the Code of Criminal Procedure of Ukraine provides that in the operative part of the judgment, the court may rule on measures to ensure the conduct of criminal proceedings, including a decision on a preventive measure prior to the judgment becoming final.
However, in this case, it is important to note that this issue can only be resolved if the person is acquitted—that is, in a judgment in which the person is acquitted.

At the same time, paragraph 2 of Part 4 of Article 374 of the Code of Criminal Procedure of Ukraine does not allow the court, when rendering a guilty verdict, to impose any preventive measure on the person at all.
In practice, in almost every verdict finding a person guilty, the court imposes a pretrial measure on that person, a practice that was consistent with the 1960 Code of Criminal Procedure of Ukraine but does not comply with the requirements of the 2012 Code of Criminal Procedure of Ukraine.

Furthermore, it is necessary to clearly distinguish between the concepts of “rendering a decision” and “enforcing a decision,” since, by providing for the possibility of rendering such a decision (subparagraph 1 of paragraph 1 of Part 4 of Article 374 of the Code of Criminal Procedure of Ukraine), the legislature did not provide for the enforcement of such a decision before the judgment takes effect and provided for the enforcement of the court’s judgment only after such a court decision has taken legal effect.

The procedure for a judgment to become final is governed by the provisions of Article 532 of the Code of Criminal Procedure of Ukraine.

In accordance with the provisions of Article 532 of the Code of Criminal Procedure of Ukraine, a judgment or ruling of a court of first instance, or a ruling of an investigating judge, unless otherwise provided by this Code, becomes final upon the expiration of the time limit for filing an appeal established by this Code, provided that no such appeal has been filed.

If an appeal is filed, the court decision, unless overturned, becomes final after the appellate court renders its decision.

In addition, the legislature has clearly defined what may serve as grounds for holding a person in custody and the procedure for determining this (Part 2 of Article 331 of the Code of Criminal Procedure of Ukraine); that is, the legal basis for imposing a preventive measure such as pretrial detention can only be a court ruling or a judgment that has already become final; however, such actions regarding pretrial detention will serve not as a measure to ensure criminal proceedings but as the serving of the sentence imposed by the court in the relevant judgment.

No provision of the 2012 CPC of Ukraine contains any reference to the fact that a judgment of a court of first instance may take effect not in accordance with the rules set forth in Article 532 of the CPC of Ukraine, but in any other manner, nor does the CPC of Ukraine specify that any part of the judgment may take effect earlier, while another part may take effect in accordance with Article 532 of the CPC of Ukraine.

It is also important to note the Internal Rules of Procedure for Pretrial Detention Centers of the State CriminalPenal Enforcement Service of Ukraine, approved by Order of the Ministry of Justice of Ukraine No. 460/5 dated March 18, 2013, in Section II, “Grounds and Procedure for Admitting Detainees and Convicts to Pretrial Detention Centers,” paragraph 1. Subparagraph 1.1, “Grounds for Admitting Detainees and Convicted Persons to Pretrial Detention Centers,” clearly defines the grounds for admitting and holding detainees and convicted persons in pretrial detention centers, namely:

“1. The grounds for the admission and detention of prisoners and convicts in pretrial detention centers are:
 - a ruling by an investigating judge (court) imposing a preventive measure in the form of pretrial detention or ordering temporary or extradition arrest, and/or a decision by a competent authority of a foreign state in cases provided for by law;
 - a final and binding court judgment sentencing a convicted person who was not in custody to a term of imprisonment;
- a court order temporarily keeping the convicted person in a pretrial detention center or transferring the convicted person from a detention facility, correctional center, a disciplinary battalion, or a penal colony to a pretrial detention center in cases provided for by Articles 90 of the Penal Code and 537 of the Code of Criminal Procedure;
- a court order revoking the convicted person’s release on probation and ordering him or her to serve the assigned sentence in the form of restriction of liberty or imprisonment.
Taking into account the individual’s circumstances, the court may transfer a convict sentenced to restricted liberty to the place of imprisonment in accordance with the procedure established for persons sentenced to imprisonment. In this case, the convict is released from custody upon arrival at the place of imprisonment.

1.2. Persons in transit are admitted to the pretrial detention center and transferred to their destination based on extracts from personal files and transit lists, in accordance with the procedure established by law. If there is a discrepancy between the information in the personal file extract and the information provided by the person in transit, the assistant on duty shall open the personal file, and a report shall be drawn up to that effect.

1.3. Women with children under the age of three may be admitted to the pretrial detention center with their children. The basis for admitting a woman with a child is the child’s birth certificate or other documents confirming the child’s parentage by the specified person or the right to custody, and in the absence of such documents—a written order from the investigating judge (court) conducting the criminal proceedings.”

Thus, only a court judgment that has become final (!) may serve as the basis for admission to a pretrial detention center.

At the same time, in the author’s view, imposing a sentence and changing the preventive measure constitutes a violation of the right to defense, since the person against whom the preventive measure is being imposed has no opportunity to express any opinion on the matter, since they do not know what decision or what preventive measure the court may impose. This also contradicts Part 6 of Article 22 of the Code of Criminal Procedure of Ukraine (the principle of adversarial proceedings), Part 3 of Article 26 of the Code of Criminal Procedure of Ukraine (the principle of disposability), and Chapter 18 of the Code of Criminal Procedure of Ukraine.
Furthermore, the High Specialized Court of Ukraine clearly stated in its Letter that the issue of applying a preventive measure must be considered in accordance with Article 331 of the Code of Criminal Procedure of Ukraine, which, in turn, refers us to Chapter 18 of the Code of Criminal Procedure of Ukraine.

Under these circumstances, the author believes that in the near future, Ukraine will face adverse rulings from the European Court of Human Rights on this matter, since, as of today, a significant number of individuals are being unlawfully detained in pretrial detention centers on the basis of convictions that have not yet become final.

It is also interesting to note that it is the Ministry of Justice of Ukraine that oversees the activities of pretrial detention centers in accordance with the Procedure for Interaction between the Ministry of Justice of Ukraine and Central Executive Authorities, whose activities are directed and coordinated by the Cabinet of Ministers of Ukraine through the Minister of Justice of Ukraine, as approved by Order of the Ministry of Justice of Ukraine No. 1495/5 dated June 6, 2011, registered with the Ministry of Justice of Ukraine on June 6, 2011, under No. 682/19420, which, in turn, is obligated to comply with the decisions of the European Court of Human Rights.

Similar issues have already been addressed by the European Court of Human Rights: on February 10, 2011, the ECHR issued a judgment in the case of “Kharchenko v. Ukraine,” on January 17, 2014, the ECHR issued a judgment in the case of “Taran v. Ukraine,” on October 2, 2014, the ECHR issued a judgment in the case of “Volyanyk v. Ukraine,” and in other similar judgments of the Court.

In these judgments, the ECHR found, among other things, a violation of Article 5 of the Convention.