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“The team was recently visible advising on a number of pharmaceutical cases. Sources agree that the team is “moving in the right direction” and are particularly impressed by its work in the pharmaceutical sector”.

 

Ukraine: The Year 2013 in Human Rights

13.02.2014

By Oleksandr Dementiev, attorney at Ilyashev & Partners
Source: RBK Ukraine

Article 3 of Ukrainian Constitution manifests as an absolute rule that “a man, his life and health, honour and dignity, inviolability and security shall be recognised in Ukraine as the highest social value. Human rights and freedoms and the guarantees thereof shall determine and direct any act undertaken by the State, for which the State is accountable to its people. It shall be the primary duty of the State to consolidate and secure human rights and freedoms”.

From the last sentence of this paragraph it follows that fundamental to the operation of the government in the person of its principal officers and lower-level officials is in the first place the unquestioning respect of human rights and freedoms of citizens. The government’s “positive duty” is to take every effort to ensure that the benefit of the doubt is given in every matter where human rights and inalienable freedoms are concerned.

As Ayn Rand wrote in “Man’s Rights” (The Morality of Individualism), “To violate man’s rights means to compel him to act against his own judgment, or to expropriate his values. … The government was set to protect man from criminals – and the Constitution was written to protect man from the government”.

This famous quote once again reaffirms that natural rights and freedoms are beyond the authority of the government to bestow or dismiss. The functions of the government are merely limited to its “positive” role (i.e., formalizing, ensuring and protecting such rights and freedoms) as well as the “negative” one.

In modern Ukrainian history, it has become too obvious that politicians readily exploit the “human rights issue” to beat their political opponents. In these circumstances, the concept of human rights has gained an additional, highly negative connotation as a super effective weapon in the hands of politicians.

However, in Ukraine 2013 did see some progress in the human rights situation. I mean in the first place the new Criminal Procedure Rules signed into law in late 2012. A year after, there is certainly an improvement with the rights guaranteed by Articles 3, 5, and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).

Of course, the law is not perfect and has faced harsh criticism, particularly from human rights watchdogs. However, despite certain discrepancies, I believe that every criminal law practitioner must feel positive about the provisions implemented in it.

Summarizing the effect of the new Criminal Procedure Rules after eight months of its existence, the experts from the Centre for Political and Legal Reforms have come up with the following conclusions:

– The number of remand prisoners at pre-trial detention centres (SIZO) has decreased by 45%, or by 13,900 persons (32,000 prisoners as at 1 December 2012 vs. 18,100 prisoners as at August 15, 2013);

– The population of remand prisoners has decreased considerably. Underlying this are two main factors: firstly, under the new CrimPR, investigating judges are required to make all arrest warrants ‘backed for bail’, i.e. to state on a warrant the amount of bail on which the accused can be released, and secondly, less detention motions have been submitted as public prosecutors tend to apply alternative pre-trial restrictions.

Importantly, the number of detention motions filed by investigators and public prosecutors has decreased by 45%, or by 13,900 persons (2,500 submissions in 2012 vs. and 1,400 submissions in 2013). Compared to 2011, there has been a 70% decrease (4,350 submissions).

Apparently, decreased overpopulation of pre-trial detention centres in 2013 is to thank the revolutionary approach to applying alternative pre-trial restrictions, such as personal guarantee, bail, surety and house arrest. Under new Criminal Procedure Rules, remanding in custody is an exceptional, and in effect undesirable, measure that should be applied only where the court is satisfied that none of the lesser restrictions will be efficient.

In fact, prosecution has to prove that pre-trial restriction is required at all. Prosecutors will also need to prove that there exist associated risks, for instance, if the accused is considered likely not to appear for investigation or trial regardless of bail, or try to interfere with the victim or witnesses, or otherwise break the law (CrimPR Rules 177 and 194(1)). Now, remand in custody is regarded as an exceptional measure used in cases involving assault, homicide or contempt of court in the form of failure to comply with bail terms.

Also worth mentioning are CrimPR Rules 182 and 183 requiring that investigating judge remanding the accused in custody and issuing an arrest warrant must make it ‘backed for bail’, i.e. to define the amount of bail sufficient for the accused can be released. Paragraph 4 of Rule 184 provides that arrest warrant may not be backed for bail under exceptional circumstances only: (1) offences involving assault or threatening behaviour; (2) offences involving homicide; (3) contempt of court in the form of failure to comply with bail terms.

Another good news is that the authorities in Kyiv and other regions of Ukraine have approved a list of public hospitals and healthcare facilities providing special care for the pre-trial prisoners and convicted inmates. Now, where a pre-trial detention centre or correctional facility lacks own resources or trained medical staff, prisoners requiring care will be moved to one of those hospitals at once and will receive medical care of the same quality as law-abiding citizens do. Further, additional mechanisms have been introduced to provide care to prisoners with HIV/AIDS or participating in substitution treatment programmes, and respect for their rights.

On 1 January 2013, Ukraine saw the introduction of Free Legal Aid Centres that would provide advice to all members of the general public, at no cost for them. At the end of the year, 27 centres were operating in Kyiv and nationwide with a total of 2,500 selected advocate attorneys / counsel. The centres will receive financing from the public purse, including attorney’s fee.

The Ministry of Justice has already committed to provide assistance for the detainees and prisoners at correctional facilities.

Additional positive changes include the following statistics prepared by the Centre for Political and Law Reforms:

– The share of not-guilty verdicts has increased (first half of 2012 saw 199 persons acquitted under public prosecutions, accounting for 0.25% of the total of 78,500 judgments made);

– The number of persons released from criminal liability has increased by ca. 20%, or by 1,350 acquits (6,500 in the first half of 2012 vs. 7,850 in the first half of 2013);

– The number of arrests under criminal procedure rules has dropped by 25%, or by 700 arrests a months (a monthly average of 2,800 arrests in 2012 vs. 2,100 in 2013);

– The number of searches has dropped by 25% (a monthly average of 4,000 searches in 2012 vs. 3,000 searches in 2013);

– The number of eavesdropping warrants issued by courts has dropped by 20% (a monthly average of 1,650 warrants in 2013 vs. 2000 to 2100 warrants in previous years);

– The number of consent decrees made 8% of the total number of all judgments entered;

– The number of consent decrees made 8% of the total number of all judgments entered. This means that the possibility of a judgment memorializing a voluntary agreement between parties to a suit was welcomed by the majority and as such may become a popular alternative way of resolving conflicts under criminal law.

 
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