CCU: The justification of any period of keeping in custody must be demonstrated convincingly by the authorities

The application of a measure of restraint in the form of keeping in custody on the basis of a purely formal court decision violates the rule of law. Such a conclusion was made by the CCU in the decision No. 7-p/2019, Case No. 3-68/2018 (3846/17, 2452/18, 3657/18, 347/19), the text of which is published by “Law and Business”.

Coinstitutional Court of Ukraine
In the name of Ukraine
Judgment
in the case of constitutional complaints of Kovtun Marina Anatoliivna, Savchenko Nadiya Viktorivna, Kostoglodov Igor Dmitriyovich, Chernobuk Valery Ivanovich on the compliance of the provisions of Article 176 of the Criminal Procedure Code of Ukraine with the Constitution of Ukraine (constitutionality)

June 25, 2019 Kyiv №7-р/2019

Case №3-68/2018 (3846/17, 2452/18, 3657/18, 347/19)

The Grand Chamber of the Constitutional Court of Ukraine composed of judges:

Shaptala Natalia Konstantinivna – presiding,
Holovaty Sergei Petrovich
Gorodovenko Viktor Valentinovich
Gultai Mikhailo Miroslavovich – Speaker
Zavgorodnya Irina Mykolaivna,
Zaporozhets Mikhailo Petrovich
Kasminin Olexander Vladimirovich – Speaker
Kolisnik Viktor Pavlovich,
Krivenko Viktor Vasiliovich – Speaker
Lemak Vasyl Vasiliovich

Litvinov Olexander Nikolaevich
Melnik Mykola Ivanovich,
Moisik Volodimir Romanovich,
Pervomaysky Oleg Oleksiiovich,
Sas Sergey Volodimirovich,
Slidenko Igor Dmitrievich
Tupitsky Oleksandr Mykolayovich – Speaker – considered at the plenary session in the case of constitutional complaints of Kovtun Marina Anatoliivna, Savchenko Nadiya Viktorivna, Kostoglodov Igor Dmitriyovich, Chernobuk Valery Ivanovich on the compliance of the provisions of Article 176 of the Criminal Procedure Code of Ukraine with the Constitution of Ukraine (constitutionality)
After hearing the judges-speakers Gultai M.M., Kasminin O.V., Krivenk V.V., Tupitsky O.M. and having investigated the case materials, the Constitutional Court of Ukraine

RULED:

1. Kovtun M.A., Savchenko N.V., Kostoglodov I.D., Chernobuk V.I. appealed to the Constitutional Court of Ukraine with a petition to consider the compliance to the Constitution of Ukraine (constitutionality) of the provisions of part five of Article 176 of the Criminal Procedural Code of Ukraine, adopted by the Verkhovna Rada of Ukraine on April 13, 2012, No. 4651-VI, as amended (hereinafter – the Code), according to which measure of restraints in the form of personal obligations, personal bail, house arrest, pledge can not be applied to persons who are suspected or accused of committing crimes provided for in Articles 109-1141, 258-2585, 260, 261 of the Criminal Code of Ukraine.
The petitioners allege that the disputed provision of the Code actually established the presumption that the existence of suspicion of committing individual crimes stipulates the absolute necessity of choosing a measure of restraint in the form of keeping in custody without the right to choose another measure of restraint. In the opinion of the subjects of the right to constitutional complaints, this approach is discriminatory, since it puts persons in respect of which such a measure is chosen, in unequal conditions compared with those who are suspected or accused of committing other crimes of similar severity. Also in constitutional complaints it is stated that the Verkhovna Rada of Ukraine, having adopted the Law of Ukraine “On Amendments to the Criminal and Criminal Procedural Codes of Ukraine Regarding the Inevitability of Punishment for Certain Offenses Against the Basis of National Security, Public Security and Corruption” of October 7, 2014, No. 1689- VII (hereinafter referred to as the Law), which amended, in particular, Article 176 of the Code, narrowed the “scope of the right of suspects and accused persons to be released during the proceedings”, that violated part two of Article 3, parts one and two of Aarticle 8, part three of Article 22, part one of Article 24, part one and two of Article 29 of the Constitution of Ukraine.

2. When deciding on the compliance of the provisions of Article 176 of the Code with the Constitution of Ukraine (constitutionality), the Constitutional Court of Ukraine proceeds from such.
The Constitution of Ukraine establishes that Ukraine is a sovereign and independent, democratic, social, law-based state (Article 1); an individual, 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 guarantees thereof shall determine the essence and course of activities of the State; the State shall be responsible to the individual for its activities; affirming and ensuring human rights and freedoms shall be the main duty of the State (Article 3).
The rule of law shall be recognised and effective in Ukraine; the Constitution of Ukraine shall be regarded as superior law. Laws and other regulatory legal acts shall be adopted on the basis of the Constitution of Ukraine and shall conform to it (parts one, two of Article 8 of the Basic Law of Ukraine).
According to the legal position of the Constitutional Court of Ukraine, set forth in the Decision No. 26-rp / 2009 of October 19, 2009, Constitutional human and civil rights and freedoms shall not be restricted, unless a restriction is stipulated by the Constitution of Ukraine (Part 1 of Article 64 of the Basic Law of Ukraine); the establishment of restrictions on the rights and freedoms of human and citizen is permissible only on condition that such restriction is proportional and socially necessary (part six of subparagraph 3.3 of paragraph 3 of the statements of reasons).
In accordance with part one of Article 29 of the Constitution of Ukraine, every person shall have the right to freedom and personal inviolability. The right to freedom is an inalienable constitutional right of a person and envisages the possibility of choosing his or her conduct for the purpose of free and comprehensive development, to act independently in accordance with their own decisions and intentions, to determine priorities, to do everything that is not prohibited by law, unimpeded and at its own discretion move around the territory of the state, choose a place of residence, etc.; this right means that a person is free from external interference in his activity, except for restrictions established by the Constitution and laws of Ukraine (part 2 of subparagraph 2.3 of paragraph 2 of the statements of reasons of the decision of the Constitutional Court of Ukraine dated June 1, 2016 #2-rp/2016).
According to part two of Article 29 of the Constitution of Ukraine, no one shall be arrested or held in custody except under a substantiated court decision and on the grounds and in accordance with the procedure established by law.

In accordance with Article 5, paragraph 1, of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention), everyone has the right to liberty and security of person; no one shall be deprived of his liberty save in the except cases and in accordance with a procedure prescribed by law.

The Constitutional Court of Ukraine, based on the provisions of the first and second paragraphs of Article 29 of the Basic Law of Ukraine and its legal positions, as well as taking into account the provisions of international legal acts on the protection of human rights to freedom and personal integrity, considers that the right to liberty and personal integrity is not is absolute and may be limited, but only on the grounds and in order established by the laws of Ukraine; the restriction of the constitutional right to liberty and personal integrity must be carried out in compliance with the constitutional guarantees of the protection of human and citizen’s rights and freedoms and solely on the basis of a motivated court decision (part thirteenth, subparagraph 2.1 of paragraph 2 of the statements of reason of the decision dated 23.11.2017 № 1-p/2017).

Consequently, normative regulation in the area of criminal proceedings against a person and his deprivation in connection with this should be based on the principles provided for in Articles 1, 3, paragraphs one and two of Article 8, paragraphs one and two of Article 29, part one of Article 64 The Basic Law of Ukraine.

3. According to the first part of Article 176 of the Code of Conduct, there are measure of restraints such as a personal obligation, a personal guarantee, a pledge, a house arrest, and a keeping in custody.
A keeping in custody is the most stringent measure of restraint among all measure of restraints provided for by the Code. In accordance with Part one, Article 183 of the Code, in the wording before the amending by the Law “keeping in custody is an exceptional measure of restraint enforced exclusively if public prosecutor proves that none of the less strict measures of restraint can prevent risks specified in Article 177 of the present Code”. In accordance with Article 177 of the Code, the purpose of a measure of restraint is to ensure the compliance of the suspect or accused, with procedural obligations imposed on him, as well as to prevent attempts to: hide from pre-trial investigation agency and/or the court; destroy, conceal or spoil any of objects or documents that have essential importance for establishing circumstances of criminal offence; exert unlawful influence on the victim, witness, another suspect, accused, expert or specialist in the same proceedings; obstruct criminal proceedings in other way; commit similar or the same criminal offence, or continue the criminal offence of which he is suspected, charged (Part One); grounds for enforcement of a measure of restraint shall be the existence of reasonable suspicion of having committed a criminal offence, as well as the existence of risks that provide sufficient grounds to investigating judge, court to believe that the suspect, the accused or the convicted person can commit actions specified in part one of this Article; the investigator, public prosecutor may not initiate application of a measure of restraint without grounds provided hereunder. (part two).
To decide on the issue of choosing a measure of restraint, in addition to the existence of specified risks, investigating judge, court, drawing upon materials submitted by parties to criminal proceedings, is required to assess the totality of circumstances including: importance of available evidence concerning the commission of criminal offence by the suspect, accused; severity of punishment which can be imposed on the person concerned if the suspect, accused is found guilty of the commission of the criminal offence he is suspected, charged of; age and state of health of the suspect, accused; firmness of social relations the suspect, accused has in the place of his permanent residence, including whether he has a family and dependents; whether the suspect, accused has the place of permanent employment or study; reputation of the suspect, accused; property status of the suspect, accused; previous convictions of the suspect, accused; compliance by the suspect, accused with terms of previously enforced measures of restraint, if any; existence of the notice that the person concerned is suspected of having committed another criminal offence; the amount of property damage, in causing which a person is suspected or accused, or the amount of proceeds, resulting from committing a criminal offense a person is suspected or accused, and also, the validity of available evidence justifying the appropriate circumstances; the risk of the continuation or repetition of unlawful conduct, in particular the risk of mortality created by suspect, accused, including in connection with his access to weapons (Article 178 of the Code).

Having determined such criteria for the use by the investigating judge, the court as a measure of restraint in the form of keeping in custody, the legislator has complied with the international standards on keeping in custody, balanced the need to ensure the effective implementation of criminal proceedings and the rights of the person to whom it is open to freedom and personal integrity and provided for the keeping in custody of such a person exclusively on the basis of a motivated judicial decision.

4. By the Law, Article 176 of the Code was supplemented by paragraph five, according to which the measures of restraint in the form of personal commitment, personal warranty, house arrest and bail may not be applied to persons suspected or accused of having committed the crimes specified by Articles 109-1141, 258-2585, 260, and 261 of the Criminal Code of Ukraine.

The law also amended the first paragraph of Article 183 of the Code, therefore, keeping in custody is an exceptional measure of restraint enforced exclusively if public prosecutor proves that none of the less strict measures of restraint can prevent risks specified in Article 177 of the present Code except for the cases specified by Part Five of Article 176 of this Code.

The legislative initiative to amend the Code by the Law is due to the need to increase the effectiveness of investigating individual crimes against the fundamentals of Ukraine’s national security and public safety. Thus, crimes for which, in accordance with Article 176 of the Code, paragtaph 5 of the Code, suspects or accused persons can not be subjected to other measure of restraints other than keeping in custody, they infringe upon the principles of national security of Ukraine and public safety.

Because of the established normative regulation of the selection of a measure of restraint, persons suspected or accused of having committed the crimes specified by Articles 109-1141, 258-2585, 260, and 261 of the Criminal Code of Ukraine, an investigating judge, court, having considered the relevant risks, circumstances of a particular case, can not apply to the indicated persons another, more lenient measure of restraint than taking into custody.

Accordingly, a measure of restraint against such persons is provided for exclusively keeping in custody, which is substantiated at the legislative level only by the qualification of the crime in which they are suspected or accused, that is, investigating judge, court is deprived of the opportunity to make a motivated judicial decision and to provide an adequate justification of the keeping in custody, and this is not in line with international practice.
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Consequently, by establishing the disputed provision of the Code for the relevant category of persons, only a measure of restraint such as keeping in custody, the legislator has deprived an investigating judge, court of ability to apply such measures to such persons more lenient measure of restraint.
From the analysis of part two of Article 29 of the Constitution of Ukraine it is seen that there are no exceptions to the grounds for the use of a measure of restraint in the form of keeping in custody in connection with the severity of the crime committed by him. That is, even when it comes to crimes that infringe upon Ukraine’s national security or public safety, the existence of a motivated judicial decision to hold a person in custody suspected or accused of committing a crime is compulsory.

At the same time, it is clear from part two of Article 29 of the Constitution of Ukraine that the reason for the lawful restriction of the right to liberty through the application of a measure of restraint in the form of keeping in custody is, in particular, a decision not only formally adopted by the court, but it must be well-founded and fair. A formal judicial decision reduces the purpose and essence of justice, which “is recognized as such only if it meets the requirements of justice and provides for an effective renewal of rights” (part ten of paragraph 9 of the statements of reason of the decision of the Constitutional Court of Ukraine of 30.01.2003, No. 3-rp/2003 )
Thus, keeping in custody under a motivated decision of an investigating judge, court, in the sense of part two of Article 29 of the Constitution of Ukraine, meets the principle of the rule of law and minimizes the risk of arbitrariness, which can not be achieved, taking into account only the severity of the crime and not assessing the specific circumstances of the case, the real reasons that stipulate the need for a person to be detained in custody, the impossibility of applying other, more lenient, measure of restraints.
Consequently, the provisions of Article 176, fifth part of the Code permit the use of a measure of restraint in the form of keeping in custody on the basis of a purely formal court decision violate the rule of law. The disputed norm justifies the necessity of the keeping in custody by a severity of a crime that does not balance the purpose of its application in criminal proceedings and the right of a person to freedom and personal integrity.
The Constitutional Court of Ukraine has repeatedly pointed out that restrictions on the exercise of constitutional rights and freedoms can not be arbitrary and unfair, they must pursue a legitimate aim, be subject to the social necessity of achieving this objective, proportionate and reasonable, if the constitutional right or freedom is restricted, the legislator must to introduce such legal regulation, which will enable to achieve optimally the legitimate goal with minimal interference with the exercise of this right or freedom (part three, subparagraph 2.1 of paragraph 2 of the statements of reason of the decision dated 01/06/2016 № 2-rp/2016).

However, according to the Constitutional Court of Ukraine, the legislator, having established exclusively a measure of restraint, such as keeping in custody, in respect of persons suspected or accused of committing crimes provided for in Articles 109-1141, 258-2585, 260, 261 of the Criminal Code the Code of Ukraine, did not comply with the above requirements.
The above gives the grounds for the conclusion that the provisions of part five of Article 176 of the Code contradict part two of article 3, parts one and two of article 8, parts one and two of article 29 of the constitution of Ukraine, because it violates the rule of law and restricts the right of a person to freedom and personal immunity.
Taking into account the above and guided by Articles 147, 150, 1511, 1512, 152, 153 of the Constitution of Ukraine, in accordance with Articles 7, 32, 35, 55, 56, 65, 66, 74, 84, 88, 89, 91, 92, 94 of the Law Of Ukraine “On the Constitutional Court of Ukraine”, the Constitutional Court of Ukraine

DECIDED:

1. To recognize the provisions of Article 176 of the Criminal Procedure
the Code of Ukraine, which provides that measure of restraints in the form of personal obligations, personal bail, house arrest, pledge can not be applied to persons who are suspected or accused of committing crimes provided for in Articles 109-1141, 258-2585, 260, 261 of the Criminal Code of Ukraine, such as does not comply with the Constitution of Ukraine (is unconstitutional).

2. The provisions of part five of Article 176 of the Criminal Procedure Code of Ukraine, declared unconstitutional, shall cease to be valid from the date of adoption of this Decision by the Constitutional Court of Ukraine.

3. The decision of the Constitutional Court of Ukraine shall be binding, final and such that it can not be appealed.
The decision of the Constitutional Court of Ukraine is to be published in the Gazette of the Constitutional Court of Ukraine.

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