Changes to the Article on Precautionary Measures: A Necessity of the Times or a Legislative Error?

On October 7, 2014, the Verkhovna Rada of Ukraine adopted the Law “On Amendments to the Criminal Code and the Code of Criminal Procedure of Ukraine Regarding the Mandatory Nature of Punishment for Certain Crimes Against the Foundations of National Security, public safety, and corruption offenses,” No. 1689-VII, pursuant to which a number of significant changes were introduced that pose potential threats to human rights.

It is this law that introduced the procedure for criminal conviction in absentia (which had previously been proposed for adoption by parliament as part of a package of “dictatorial” laws) and established the possibility of property confiscation in cases of conviction for crimes against the foundations of national security and public safety.

However, in this article, we will focus on paragraphs 7 and 8 of Part Two of the law, which provide as follows:

2. In the Criminal Procedure Code of Ukraine (Bulletin of the Verkhovna Rada of Ukraine, 2013, Nos. 9–13, Art. 88):

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7) Article 176 shall be supplemented with a fifth part reading as follows:

"5. Preventive measures in the form of a personal undertaking, personal surety, house arrest, or bail may not be applied to persons suspected or accused of committing crimes provided for in Articles 109–114-1, 258–258-5, 260, and 261 of the Criminal Code of Ukraine”;

8) Supplement the first part of Article 183 with the words and numbers “except in cases provided for in the fifth part of Article 176 of this Code”;

It should be noted that even a repost on social media may constitute a crime against the foundations of national security, which, pursuant to Article 12 of the Criminal Code of Ukraine, may even be classified as a crime of moderate severity. And a literal interpretation of the law, under such circumstances, significantly simplifies the judge’s task of justifying the need to keep a person in pretrial detention: it is no longer necessary to establish either the validity of the suspicion (although in other cases judges often avoid taking such steps), the existence of risks, or other circumstances (health condition, strength of social ties, reputation, etc.).

At the same time, even in particularly serious murder cases, alternative preventive measures are not ruled out.

The European Court of Human Rights, in a communication to the Government dated February 18, 2017, in the case of “Alla Aleksandrovna ALEKSANDROVSKAYA v. Ukraine,” Application No. 38718/16 http://hudoc.echr.coe.int/eng?i=001-172059 raised the following question: 7. Has the applicant suffered discrimination in the enjoyment of her rights under Article 5 § 3, contrary to Article 14 of the Convention, in light of her complaint that, by virtue of Article 176 § 5 of the Code of Criminal Procedure, the domestic courts were prevented from examining whether non-custodial preventive measures could be applied in her case? (7. Has the applicant been subjected to discrimination in the exercise of her rights under Article 5, paragraph 3, contrary to Article 14 of the Convention, given her complaint that, pursuant to Article 176 § 5 of the Code of Criminal Procedure, the domestic courts refused to consider whether non-custodial preventive measures could be applied in her case?). Since this case has been designated a priority case in accordance with Article 41 of the Court’s Rules of Procedure, a decision on this matter is expected in the very near future.

At the same time, at least two proceedings have been initiated before the Constitutional Court of Ukraine based on constitutional complaints challenging the constitutionality of Article 176(5) of the Criminal Procedure Code of Ukraine. Furthermore, on June 13, 2018, the Constitutional Court of Ukraine’s First Senate considered a motion to refuse to hear the case based on the constitutional complaint filed by Nadiya Viktorivna Savchenko regarding the constitutionality of the provision of Part 5of Article 176 of the Criminal Procedure Code of Ukraine to the Grand Chamber of the Constitutional Court of Ukraine https://www.facebook.com/100001180470319/posts/1740915175957815/ .

And on the agenda of the Second Senate for June 26, 2018 http://www.ccu.gov.ua/novyna/poryadok-dennyy-zasidan-konstytuciynogo-sudu-ukrayiny-na-25-26-chervnya-ta-5-lypnya-2018-r, the Senate is scheduled to hear the case regarding the constitutional complaint filed by Marina Anatoliivna Kovtun concerning the constitutionality (constitutionality) of the provision of Part 5 of Article 176 of the Criminal Procedure Code of Ukraine in the form of written proceedings.

The issue is extremely pressing given the number of cases in this category that have already been opened, a number that is constantly growing: https://novynarnia.com/2016/11/24/v-sbu-povidomili-pro-kilkist-sprav-vidkritih-za-separatizm-i-terorizm/. In each such case, individuals may be deprived of their liberty for years with no alternative!

The other side of the coin is the repression against judges who, by applying the provisions of the Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms as a matter of priority, have acquitted defendants, and subsequently face persecution by the prosecutor’s office, which initiates criminal proceedings against such judges for allegedly rendering knowingly unjust decisions. Relevant facts of unacceptable interference in the activities of judicial bodies are documented in the Report on the Situation of Human Rights in Ukraine, February 16–May 15, 2018, by the Office of the United Nations High Commissioner for Human Rights

https://www.ohchr.org/Documents/Countries/UA/ReportUkraineFev-May2018_UKRAINIAN.pdf.

We therefore look forward to a final resolution of this critically important issue by national authorities, first and foremost the Constitutional Court of Ukraine.