(In)Definite Detention

A preventive measure in the form of detention is the most severe preventive measures provided for in the Criminal Procedure Code. In terms of its legal nature, it is close to actual punishment in the form of deprivation of liberty.

That is why the procedure for applying and extending this preventive measure should be regulated in as much detail as possible and should not allow any gaps or ambiguities.

However, there is currently a loophole in Ukrainian legislation, which is actively exploited and which allows the investigating judge to extend a person’s detention period under the rules of pre-trial investigation multiple times without any limitation of the number of extensions. 

What Caused this Situation?

After amendments were made to the Criminal Procedure Code of Ukraine, which came into force in November 2022, a kind of intermediate stage appeared in the criminal process between the pre-trial investigation and the trial. The stage opened up the opportunity for investigating judges to virtually indefinitely extend the period of detention of a person in custody – already outside the pre-trial investigation, but before the start of the preparatory court hearing.

Until November 6, 2022, the Criminal Procedure Code of Ukraine clearly established that the investigating judge could apply preventive measures only at the stage of the pre-trial investigation (Part 4, Article 176 of the Criminal Procedure Code).

The total period of detention shall not exceed:

• 6 months – for non-serious crimes;
• 12 months – for serious and especially serious crimes (Part 3, Article 197 of the Criminal Procedure Code).

After the pre-trial investigation is completed (from the moment the indictment was sent to a court), the powers of detention were transferred to the court, which is considering the case on its merits.

However, the Law of Ukraine No. 2690-IX of 18 October 2022, adopted “in implementation of the decisions of the ECHR”, made critical changes. Article 199 of the CPC was supplemented with a new Part 6. According to the changes, the prosecutor may initiate, during the period before the preparatory court session, the continuation of detention, which is to be considered by the investigating judge. Also, Article 176 of the CPC was amended: the investigating judge shall apply preventive measures not only during the pre-trial investigation, but also before the start of the preparatory court session.

Thus, this was for the first time that a separate procedural period appeared, during which the accused is no longer a suspect, and the proceedings are no longer at the stage of pre-trial investigation. However, pre-trial investigation mechanisms continue to be applied, without restrictions on the maximum period of detention.

Why is it Dangerous for the Legal System and Business?

Ironically, the Law of Ukraine No. 2690-IX of 18 October 2022, adopted “in implementation of the decisions of the European Court of Human Rights”, actually contradicts the practice of the European Court of Human Rights, in particular:

The ECHR decision in the Kharchenko vs. Ukraine and Baranowski vs. Poland cases explicitly prohibits the use of loopholes or procedural delays for the purpose of disproportionate detention.

The legal uncertainty of the provisions contradicts the standards of the rule of law defined by the Constitutional Court of Ukraine in decision No. 5-rp/2005.

It also creates additional risks of legal uncertainty for businesses and investors – especially in high-profile cases when the term of detention in cases of an economic or corruption nature turns into an element of pressure or even a sanction ahead of a court verdict.

Moreover, this law contradicts the elements of the rule of law listed in the decision of the Constitutional Court of Ukraine of 22 September 2005 No. 5-rp/2005, such as legal certainty, clarity and unambiguousness of the legal norm, since the current wording of the relevant norms cannot ensure their uniform application, does not exclude unlimited interpretation in law-enforcement practice and, inevitably, leads to arbitrariness.

Solution

The existence of this additional stage in criminal proceedings, although meaningless, does not in itself create a field for abuse. The field for abuse is created precisely due to the absence at this stage of the guarantees that a person has at the stage of pre-trial investigation, such as the impossibility of keeping a person in custody beyond the certain limited period.

To overcome the issue at the legislative level, the guarantees of pre-trial investigation are proposed to be extended until the start of the preparatory court session.

For this purpose, it is proposed to supplement Part 3 of Article 197 after the words “during the pre-trial investigation” with the words “and before the beginning of the preparatory court session”, so that the provision is set out in the following wording: “The term of detention may be extended by the investigating judge within the term of the pre-trial investigation in the manner prescribed by this Code. The total term of detention of a suspect, accused during the pre-trial investigation and before the beginning of the preparatory court session, shall not exceed:

1) six months – in criminal proceedings regarding a non-serious crime;

2) twelve months – in criminal proceedings regarding serious or especially serious crimes.”

Thus, with the introduction of these legislative changes, the stage between the submission of an indictment to the court and the start of the preparatory court session will no longer serve as an opportunity to detain a person indefinitely on the basis of numerous decisions adopted by investigating judges.