Petition of human rights organisations of Ukraine on threats of law-making initiatives regarding cancellation of a bail
The new Criminal Procedure Code which was adopted in 2012 was estimated by international institutions as excellent. According to the current Criminal Procedure Code, detention is an exceptional preventive measure. In cases when a grave violent crime is not involved, application of alternative preventive measures towards the suspect is envisaged. Bail is one of them.
For the purpose of fighting corruption and separatism, there are currently both governmental and parliamentary initiatives regarding amendments to law and prohibition for judges to release persons suspected of crimes stipulated by a number of articles of the Criminal Code. In the Verkhovna Rada, there are seven laws concerning this issue: No. 1838, 1871, 2086, 2284, 2330, 2654 and 2668. However, some of them have already been withdrawn.
Cancellation of bails for persons who have not committed grave violent crimes directly violets paragraph 3 of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the practice of the European Court of Human Rights which, for instance, concludes that, in the case of Ilijkov v. Bulgaria, ruling dd. 24 July 2001, paragraph 84, the system of mandatory detention inherently does not comply with paragraph 3 of Article 5 of the Convention. If the law establishes presumption with respect to circumstances concerning grounds for detention, the existence of particular circumstances which prevail over the right of respect for personal freedom has to be meaningfully proven.
Mandatory detention also contradicts Article 29 of the Constitution of Ukraine, which stipulates that this preventive measure can be applied only “in the event of an urgent necessity to prevent or stop a crime.”
At the same time, the juridical statistics for 2014 shows that we do not have any problems with fulfilment of terms of a preventive measure like bail by suspects. In total, approximately 30 million hryvnias have been transferred to the state accounts by suspects during one year. Only 78 thousand of them have been withheld by the state as a result of violation of terms of this preventive measure. Violation of terms of this liability happened only in 0.26% of cases. This means that the problem which was the reason for the abovementioned initiatives does not exist.
Moreover, application of bails enables a real opportunity to pay compensations for the victims of crimes. Since the money which is transferred to the accounts of the state budget – amounting to 30 – 40 million hryvnias per year – are paid to victims and the state upon conviction in the form of compensation of damage.
These legal initiatives are incompatible with the European choice of Ukraine. They would undoubtedly affect the international image and lead to many claims to the European Court of Human Rights which Ukraine would lose. Once again, taxpayers would have to pay for the government’s lack of responsibility.
We call on law-makers to refrain from initiatives to cancel bails, because this problem does not exist in practice, and the ways of solving it which have been offered violate the Constitution of Ukraine and international agreements.
We emphasise once again that the process of integration with the EU involves respect for human rights and adherence to the rule of law.
Mister President! You mentioned the Ancient Roman postulate “Pacta sunt servanda” (“Agreements must be kept”) on several occasions. We call on you, the government and people’s deputies to adhere to the international agreements of Ukraine and refrain from law-making initiatives which violate them.
Arkadii Bushchenko, Executive Director of the Ukrainian Helsinki Human Rights Union
Yevhen Zakharov, Director of the Kharkiv Human Rights Protection Group
Oleksandr Banchuk, Chief Expert of the Law Enforcement Reform Group of the Reanimation Reforms initiative Package
Borys Zakharov, Head of the Advocacy Centre of the Ukrainian Helsinki Human Rights Union
