Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.40 N° 72
Enero
Junio
2022
Recibido el 15/09/2021 Aceptado el 14/12/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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Vol. 40, Nº 72 (2021), 509-530
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
International standards for criminal
proceedings in emergency legal regimes
DOI: https://doi.org/10.46398/cuestpol.4072.29
Hanna Teteriatnyk *
Vadym Piaskovskyi **
Anna Myrovska ***
Andrii Sakovskyi ****
Daria Gunchenko *****
Abstract
The article aims to study the theoretical and applied aspects
of pre-trial research in emergency legal regimes such as: martial
law, the state of emergency or the area of joint forces operation
in Ukraine. International legal requirements for due process
in criminal proceedings during emergency legal regimes are
analyzed. It is claimed that the existing experience in Ukraine
of normative regulation of criminal proceedings under the
conditions of special legal regimes is inecient, fragmentary, and
therefore does not fully correspond to modern ideas about human rights
and the democratic and legal state. The perspectives for the application
of the jurisprudence of the European Court of Human Rights in criminal
proceedings under emergency legal regimes are identied. It was concluded
that the investigating authorities carry out all the means to establish the
facts of the disappeared persons in the area of Operation of Joint Forces
within the framework of the criminal process, which will allow to comply, in
theory, with all the requirements for the eectiveness of the investigation.
The basis for the formation of legislation on this subject should be the
relevant law on missing persons.
* Candidate of legal science, assistant professor, Сhief of the Department of Criminal Procedure, Odesa
State University of Internal Aairs, Odesa, Ukraine. ORСID ID: https://orcid.org/0000-0002-8321-
7912
** Candidate of legal sciences, Associate Professor, Professor of Department of Criminalistics and
Forensic Medicine of National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.
org/0000-0001-7954-1018
*** Candidate of legal sciences, Associate Professor, Professor at the Department of Criminalistics and
forensic medicine, National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.
org/0000-0001-5714-1873
**** Candidate of legal sciences, Associate Professor, Director of the educational and research institute
No. 2, National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0003-
0762-859X
***** Ph.D. student of the Department of Criminal Procedure, Odesa State University of Internal Aairs,
Odesa, Ukraine. ORСID ID: https://orcid.org/0000-0001-7179-4408
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Hanna Teteriatnyk, Vadym Piaskovskyi, Anna Myrovska, Andrii Sakovskyi y Daria Gunchenko
International standards for criminal proceedings in emergency legal regimes
Keywords: extraordinary legal regimes; criminal proceedings;
international standards; legal research; special pre-trial
instruction.
Estándares internacionales para procesos penales en
regímenes legales de emergencia
Resumen
El artículo tiene como objetivo el estudio en profundidad de los aspectos
teóricos y aplicados de la investigación previa al juicio en regímenes legales
de emergencia como: la ley marcial, el estado de emergencia o el área de
la Operación de Fuerzas Conjuntas en Ucrania. Se analizan los requisitos
legales internacionales al debido proceso en los procesos penales durante
los regímenes legales de emergencia. Se arma que la experiencia existente
en Ucrania de regulación normativa de procesos penales en las condiciones
de regímenes legales especiales es ineciente, fragmentaria, por lo que no
corresponde plenamente a las ideas modernas sobre los derechos humanos
y el estado democrático y legal. Se identican las perspectivas de aplicación
de la jurisprudencia del Tribunal Europeo de Derechos Humanos en
procesos penales bajo regímenes legales de emergencia. Se concluyó que
las autoridades de instrucción realizan todos los medios para establecer los
hechos de las personas desaparecidas en el área de Operación de Fuerzas
Conjuntas en el marco del proceso penal, lo que permitirá cumplir, en
teoría, con todos los requisitos para la efectividad de la investigación. La
base para la formación de la legislación sobre este tema debe ser la ley
pertinente sobre personas desaparecidas.
Palabras clave: regímenes legales extraordinarios; proceso penal;
normas internacionales; investigación jurídica;
instrucción especial previa al juicio.
Introduction
According to Article 3 of the Constitution of Ukraine, a person, his life
and health, honor and dignity, inviolability and security are recognized in
Ukraine as the highest social value. Human rights and freedoms and their
guarantees determine the content and direction of the state. The state is
accountable to man for his activities. The establishment and protection of
human rights and freedoms is the main duty of the state (Constitution of
Ukraine, 1996).
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In addition, Article 2 of the Criminal Procedure Code of Ukraine denes
the tasks of criminal proceedings, which are the protection of the individual,
society and the state from criminal oenses, protection of rights, freedoms
and legitimate interests of participants in criminal proceedings, as well
as prompt, complete and impartial investigation and trial so that anyone
who commits a criminal oense is prosecuted to the extent of his guilt,
no innocent person has been accused or convicted, no person has been
subjected to unreasonable procedural coercion and that every participant
in criminal proceedings has been subjected to due process of law and the
provision of procedural guarantees. Procedural guarantee is a guarantee of
justice (Mykhaylenko, 1996).
The challenges facing Ukraine against the background of negative
socio-political events in 2014 have become a serious challenge for many
socio-legal institutions, led to an urgent transformation of public policy in
the eld of improving the legal regulation of crime. Loss of control over
certain territories of Ukraine, lack of legitimate law enforcement agencies,
disorganization of public relations, mass abuse of the rights of suspects,
accused and their deliberate hiding from the authorities in inaccessible
territories, absence or ineectiveness of agreements with some countries
on mutual assistance in criminal proceedings oenders, danger to life and
health of persons who carried out criminal proceedings or participated in
it, a number of other negative factors created atypical conditions in which
the current criminal procedural legislation, developed for peacetime, was
ineective to achieve the objectives of criminal proceedings (Kopersak,
2021).
In the conditions of permanent social and economic crisis, increase of
unemployment and falling of material level of citizens, impossibility of
satisfaction of the basic part of the population of the basic ways legally,
continuation of the conict in the east of Ukraine (illegal distribution of
the weapon, ammunition, and explosives) armed conict and psychological
stress), loss of social control and some miscalculations that were made
during the reform of the law enforcement and judicial system, led to the fact
that in 2018 in Ukraine a special pre-trial investigation was conducted on 32
criminal proceedings, in 2019 only 9, in 2020 on 21 criminal proceedings,
in 2021 concerning 34 criminal proceedings for this period 55 criminal
proceedings were sent to court with indictments, in which a special pre-
trial investigation was carried out. Thus, the above data show that the law
enforcement system of Ukraine does not suciently use the opportunity
provided by the Criminal Procedure Code of Ukraine – to conduct a special
pre-trial investigation.
Such a small number of criminal proceedings indicates the presence
of signicant gaps in the regulation of the procedure of special pre-trial
investigation and the lack of practice of its application. In view of the
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Hanna Teteriatnyk, Vadym Piaskovskyi, Anna Myrovska, Andrii Sakovskyi y Daria Gunchenko
International standards for criminal proceedings in emergency legal regimes
above, the issues of developing a theoretical basis and improving criminal
procedural legislation in terms of its adaptation to international standards
of criminal proceedings in emergency legal regimes remain extremely
relevant today.
1. Methodology of the study
The methodological basis of this work is is based on general and special
methods of scientic knowledge, the use of which is determined by the
purpose, object, and subject of research philosophical methods: dialectical
(the basic principles of which are objectivity, comprehensiveness,
concreteness, and completeness of knowledge’s etc.), logical (the main
methods of which are analysis and synthesis, induction and deduction,
analogy), etc.
The dialectical method contributed studying the special regime of pre-
trial investigation from the standpoint of integrity of this legal phenomenon
and the interconnectedness of its individual elements. The comparative
legal method is used in the analysis of national and foreign legislation on
the regulation of criminal procedure legal relations during the investigation
of criminal oenses in special legal regimes. By using hermeneutic method
claried the legal content of the law, identied defects of normative
regulation of the special pre-trial regime investigation under martial law.
The operation of the formal method was due to the need to formulate
properly conceptual and categorical apparatus of research. Method
generalization made it possible to consistently reduce individual facts
into one whole and formulate sound conclusions aimed at improvement
normative regulation of researched questions. Methods of modeling and
abstraction allowed design proposals for amendments to the legislation.
These methods applied comprehensively, which allowed to ensure
comprehensiveness, completeness, and the objectivity of the study, justify
and agree the conclusions formulated in the scientic article, to make sure
of their reliability.
2. Analysis of recent research
Various aspects of the selected issues in the criminal process science
are the subject of research in the works of scientists of the modern period,
among which it is appropriate to note Dei (2017), Kopersak (2021), Pilley
(2015), Lazukova (2016), Malanchuk (2017), Pohoretsky (2016), Volkova
(2021) and others.
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However, there are some issues that need comprehensive analysis
and coverage. In particular, the issues of legislative regulation of certain
legal relations in the conditions of armed conict need an additional
solution. There is a scientic and applied problem, which is the urgent
need for a comprehensive theoretical study of the special regime of pre-
trial investigation in the Joint Forces Operation in eastern Ukraine, in
developing scientically sound approaches to its regulatory support and
outlining the necessary areas for improvement.
3. Results and discussion
We consider it expedient to begin the analysis of international standards
for the conduct of criminal proceedings under emergency legal regimes by
clarifying the prospects for the application of the case law of the European
Court of Human Rights in such criminal proceedings.
According to the analysis of the case law of the European Court of
Human Rights, the positive obligation of the state to conduct an eective
pre-trial investigation exists even in an emergency, including in dicult
and dangerous conditions, including the conditions of military conict
(Lazukova, 2016).
The Court has repeatedly stated that the investigation of terrorist crimes,
in particular, undoubtedly poses particular problems for the authorities, but
this does not mean that such a situation gives the investigating authorities,
so to speak, cart blanche (A. and Others v. the United Kingdom, 2009). Thus,
in Halki v. Turkey, the Court did not satisfy the Government’s argument that
the bringing of witnesses to court could have been due to some diculties
due to the general situation in the region (Turkish part of Kurdistan). The
European Court of Human Rights noted that these circumstances should
not have made it impossible to interrogate individuals in court, and that
transport diculties and even general safety considerations were not taken
as a serious argument to rehabilitate a witness’s failure to appear in court.
In another case, Jalud v. The Netherlands, the Court found that the
investigation was characterized by signicant shortcomings that made
it ineective (in particular, records of key witness statements were not
provided to the judiciary; where the victim was, etc.). The court found that
the Dutch military and investigators, although recruited in a foreign country
after the end of hostilities, nevertheless worked in dicult conditions, but
did not take the latter into account and stated that these shortcomings in
the investigation had seriously compromised its eectiveness.
In the judgment of the European Court of Human Rights in the cases
of Haralambu and Others v. Turkey and Emin and Others v. Cyprus
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International standards for criminal proceedings in emergency legal regimes
(concerning the complaint concerning the lack of an eective investigation
during the Turkish invasion in 1974) The court found that the Turkish and
Cypriot governments under Art. 2 of the Convention for the Protection of
Human Rights and Fundamental Freedoms were obliged to investigate
the bodies of missing persons who showed signs of violent death, but it
was premature to nd the death investigation ineective (the bodies of
the applicants’ relatives were found by the United Nations Committee
program). The fact that no concrete progress has been made does not in
itself indicate a lack of goodwill on the part of the authorities.
At present, there are no clearly dened legal approaches to involving
international organizations and individual countries to facilitate conict
resolution. At the same time, it should be noted that given the situation in
eastern Ukraine and aware of the growing number of conicts around the
world, representatives of national human rights institutions of 20 countries
adopted the Kyiv Declaration on October 22, 2015 «The role of national
human rights institutions». This document is the rst and only international
human rights instrument that guides the actions of national human rights
institutions in conict and post-conict situations (Dei, 2017).
In particular, if the national authorities are unable to restore the
violated rights, the Kyiv Declaration outlines the cases in which measures
can be taken in the event of impossibility to resolve disputes in court and
within the framework of political agreements. An example is a situation
where, at the time of the conict, a person in custody was in a territory
not controlled by the government and the criminal proceedings against that
person remained in the controlled area or vice versa.
One of the main international legal requirements for a proper form of
pre-trial investigation is the obligation of the state, even in an emergency,
to ensure eective forms of judicial review. The right of access to court,
enshrined in Part 1 of Art. 6 of the Convention, is not absolute, and in cases
established by law, it may be limited (Tsesar and Others v. Ukraine, 2018).
However, the European Court of Human Rights notes that the right of
access to a court should not be restricted in such a way that the very essence
of this right is nullied.
In Art. 5 of the Convention for the Protection of Human Rights and
Fundamental Freedoms states that no one shall be deprived of his liberty
save in the cases expressly provided for in this Article and in accordance
with the procedure established by law. Subparagraph «c» of paragraph 1
of this article provides for the possibility of lawful arrest or detention of
a person committed to bring him to the competent judicial authority in
the presence of reasonable suspicion of committing an oense or if it is
reasonably necessary to prevent him from committing an oense or eeing
after it.
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Everyone who is arrested or detained in accordance with the provisions
of subparagraph «c» of paragraph 1 of Art. 5 of the Convention for the
Protection of Human Rights and Fundamental Freedoms, must immediately
appear before a judge or other ocial empowered by law to exercise judicial
power and be provided with a court hearing within a reasonable time or
dismissal during the proceedings.
Thus, the Government of Turkey on July 23, 2016, issues a decree №
667, Art. 6 (1 (a)) on the possibility of detaining suspects for up to thirty
days without trial. In Spain, special anti-terrorist measures are dened in
Art. 55 (2) of the Spanish Constitution, 97 which provides for an extended
period of detention for a suspect before he appears before a judge, as well
as the possibility of detaining a detainee with limited communication with
the outside world. In Thailand, Decree 3/2015 of the head of the National
Council for Security and Peace allows arbitrary detention for up to seven
days without contact with the outside world and without notication of
suspicion (Human Rights Around the World, 2017).
As part of the ght against terrorism, the Malaysian parliament passed
a law in April 2015 authorizing the detention of terrorism suspects without
trial for up to 60 days by a decision of the Counter-Terrorism Committee
and a ban on reviewing such decisions by the court. decision to extend
the arrest for two years or more if necessary. The decision on dismissal is
also made by this body. As for the legal position of the European Court of
Human Rights on this issue, for example, in the case of Aksoy v. Turkey, it
was emphasized that the diculties of investigating terrorist acts could not
justify the detention of a suspect for 14 days without judicial review.
The European Court of Human Rights has taken into account “the
undoubtedly serious problem of terrorism in south-eastern Turkey and
the diculties faced by the state in taking eective measures to combat it.”
(Aksoy v. Turkey, 1996). At the same time, he was not persuaded that an
emergency required the applicant to be detained on suspicion of involvement
in terrorist oenses for 14 or more days incommunicado without being
brought before a judge or other judicial ocial power (Aksoy v. Turkey,
1996). The court noted that the complexity of the investigation of terrorist
acts could not give freedom to the actions of the pre-trial investigation body
to detain suspects without any intervention of the courts, because judicial
control is an important element of the guarantee designed to minimize the
risk of arbitrariness and rule of law (Dikme v. Turquie, 2000).
In the case of Castillo Petruzzi and others, the detainees were taken only
36 days later, which was found by the Inter-American Court of Human
Rights to be a violation of Article 5 § 1.7 of the American Convention on
Human Rights (Castillo Petruzzi et al. v. Peru, 1999). In Browgan and Others
v. The United Kingdom, the Court noted that the applicant’s detention in
police custody was 4 days and six hours beyond the strictly established
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International standards for criminal proceedings in emergency legal regimes
time limits of Art. 5§3. The question of the proportionality of the length of
detention and the right to liberty and security of person guaranteed by Art.
5 of the Convention for the Protection of Human Rights and Fundamental
Freedoms, as well as the right to a fair trial, guaranteed by Art. 6 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms, has been the subject of proceedings by the European Court of
Human Rights in several other cases.
This allows us to emphasize that the limits of exibility in the
interpretation and application of the concept of “immediacy” are limited
and depend on the specics of the particular case and the situation in which
the detention took place. In particular, the United Nations Human Rights
Committee stated in a general comment № 8 that “the delay should not
exceed a few days”(UN COMMITTEE, 1982).
In turn, the European Court of Human Rights points out that in the case
of long-term detention (in Demir and Others v. Turkey 16 days and 23 days) a
general reference to the diculties associated with terrorism is insucient.
It is necessary to indicate, for example, for what reasons and the specic
circumstances of the case which gave rise to them, the judicial control over
the applicants’ detention was jeopardized during the investigation (Aaire
Demir et gül c. Turquie, 2001).
In the context of terrorist activities in Northern Ireland, detention for
up to seven days without any form of judicial control complied with the
provisions of the Convention for the Protection of Human Rights and
Fundamental Freedoms (provided for in Article 12 of the Prevention of
Terrorism Act 1984) (Brannigan and McBride v. the United Kingdom,
1993). The European Court of Human Rights did not nd a violation of the
requirement of urgency, given that the detainee was given the opportunity
to consult a lawyer, contact relatives and undergo a medical examination
(Brannigan and McBride v. the United Kingdom, 1993). Thus, the court
proceeds from the factual circumstances of the case, but at the national
level special guarantees must be established that would supplement the
temporary absence of judicial control and, in particular, ensure: 1) the right
to defense; 2) the right to notify relatives or friends of their detention; 3)
the right to access a doctor, etc.
One of the most serious threats to human rights, which is most
pronounced during emergencies, is the increased risk of torture and ill-
treatment. Paragraph 2 of Art. 2 of the Convention for the Protection of
Human Rights and Fundamental Freedoms stipulates that the prohibition
of torture is absolute and does not allow for derogations. It is emphasized
that no exceptional circumstances, whatever they may be, a state of war or
a threat of war, internal political instability or any other state of emergency,
can justify torture.
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The European Court of Human Rights notes that the undeniable
complexity of the ght against terrorism cannot lead to restrictions on
guarantees of the physical integrity of the individual (Tomasi v. France,
1992). At the same time, despite the absolute nature of this right in
many countries of the world, unfortunately, there are many cases of
such violations: «Palestinian suspension» is used - hanging naked with
hands tied behind his back (the case of «Aksoy v. Turkey»); «Intensive
interrogation techniques», methods of psychological inuence, coercion to
stand by a wall, noise exposure, sleep deprivation, food and water are used
(see, for example, Ireland v. the United Kingdom, 1978); electric shocks,
prolonged hanging by the wrists and ankles, threats to detainees and their
relatives, etc.
It should be noted that despite the obvious gross violation of convention
rights in foreign literature, there is a position according to which the state’s
criminal policy to combat terrorist crimes may contain deviations from the
general standards of proof (Butaev, 2015).
It is important to note that in many countries of the world there are
(or have been) provisions that in some way limit both the guarantees of
condential communication with a lawyer and certain aspects of the right
to defense in general. At the same time, the case law of the United Nations
Human Rights Committee and the Inter-American Court of Human Rights
stipulates that the suspension of habeas corpus cannot be justied under
any circumstances, given the fundamental nature of this guarantee in a
democratic society (Habeas Corpus In Emergency Situations, 1987).
Of interest in this context is the Advisory Opinion of the Inter-American
Court of Human Rights (1987) «Habeas Corpus in Emergencies», which
states that habeas corpus and amparo are among the remedies that are
fundamental to the protection of various rights. , deviation from which is
unacceptable (Habeas Corpus In Emergency Situations, 1987).
The obligation of states to «ensure the condentiality of communication
between a suspect or accused person and a lawyer» is also set out in
Directive 2013/48 / EC of the European Parliament and of the Council of
22 October 2013 on the right of access to a lawyer in criminal and European
proceedings. arrest warrant, as well as the right to inform third parties about
their imprisonment, to communicate with third parties and the consulate
during imprisonment»(DIRECTIVE 2013/48/EU, 2013).
Despite the pressure exerted by some countries in the process of drafting
this Directive in order to consolidate the possibility of a certain derogation,
in particular in cases of terrorism, R. Pillay emphasizes that such a right
is not subject to any restriction or derogation (Pilley, 2015); such absolute
protection reects the provisions of the United Nations Basic Principles on
the Role of Lawyers (para. 8) and the standards of the Committee against
Torture (European Committee For The Prevention Of Torture, 2002).
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At the same time, an analysis of the provisions of the Directive shows that
the latter still provides for certain exceptions in some cases. In particular,
in the case of geographical distance of the suspect or accused, which makes
it impossible to exercise the right of access to a lawyer immediately after
imprisonment.
This circumstance allows a certain temporary deviation from the right
of the suspect or accused to immediate access to a lawyer (Article 3.5).
Thus, in Salduz v. Turkey, the European Court of Human Rights stated
that, in order to ensure sucient “practicality and eectiveness” of the
right to a fair trial guaranteed by Article 6 § 1, access to a lawyer must be
granted, interrogation of the suspect, except in cases when in the specic
circumstances of the case it is demonstrated that there are good grounds for
restricting such a right.
Another possibility to derogate from the immediate right to a lawyer is
provided for in paragraph 3.6 of the Directive. In particular, such a derogation
may be considered lawful if justied by the particular circumstances of the
case for one of the following good reasons: (a) if there is an urgent need
to prevent serious adverse consequences for the life, liberty or physical
integrity of the person; (b) if urgent action by the investigating authorities
is strictly necessary to prevent a signicant danger.
An example of the application of this derogation is illustrated in the
decision of the European Court of Human Rights «Ibrahim and others
v. The United Kingdom» of 13.09.2016, where the so-called «Security
interrogations» of persons suspected of terrorism (according to the
Terrorism Act of 2000, this type of interrogation is conducted without the
presence of a lawyer and before the detainee can exercise the right to legal
aid). In its judgment, the Court stated that at the time of the applicants’
detention and interrogation there was a serious threat to public safety,
which was certainly an extraordinary circumstance allowing a waiver of the
general guarantees of the Convention under Article 15 and the use in the
process of written testimony taken without the presence of counsel.
Thus, the European Court of Human Rights did not nd a violation of
Article 6 of the Convention in the case. Further analysis of the provisions of
the Directive in the light of the case law of the European Court of Human
Rights suggests that the former sets higher standards than the case law of
the European Court of Human Rights, which in exceptional cases, given the
factual circumstances of the case, allows wider restrictions. In particular,
the Code of Criminal Procedure of the Federal Republic of Germany
provides for the possibility for a judge to review correspondence between
a lawyer and an accused if the latter is accused of belonging to a terrorist
organization (paragraph 2 (148) of the Code of Criminal Procedure of the
Federal Republic of Germany).
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At the same time, the law establishes certain guarantees for such
interference in condential communication. In particular, only the judge of
the district where the remand center is located has the right to examine the
materials submitted during the conversation between the defense counsel
and his client; however, this judge has no right to disclose the details of
the studied materials and correspondence, unless they contain information
about serious oenses under paragraphs 1 and 2 of Art. 138 of the Criminal
Code of the Federal Republic of Germany (Savchenko, 2017).
The question of the legality of monitoring the correspondence of a
terrorist suspect with a lawyer in the Federal Republic of Germany was
the subject of the European Court of Human Rights in 2001 in Erdem
v. Germany, in which the court concluded that such interference did
not violate Art. 8 of the Convention for the Protection of Human Rights
and Fundamental Freedoms, as the basis for such interference was the
provisions of national law.
However, the European Court of Human Rights noted that this is a
limited control, as the accused is free to communicate orally with his lawyer.
The Court also noted that such measures were provided for in a very narrow
area (the ght against terrorism) and were an exception to the general rule
that all contacts between the applicant and his lawyer were condential.
Moreover, the documents exchanged between the lawyer and his client
were read by an independent judge, whose duty was not to disclose the
information received to the investigating authorities, unless it contained
signs of a new corpus delicti. At the same time, the European Court of Human
Rights stressed the need to maintain condentiality and explained that the
provisions of Art. 138 should be used only in exceptional situations. Thus,
in that judgment, the Court essentially gave priority in the regulation of
legal secrecy to the rules of national law over international law (Pohoretsky
and Pohoretsky, 2016).
At the same time, in the case of Petra v. Romania, the automatic
monitoring of all prisoners’ correspondence (not only with a lawyer but
also with relatives) was found to be inconsistent with the Convention.
Interestingly, the reasons for the domestic decisions in this case were quite
convincing, and, moreover, the measure was limited in time and even the
applicant was ocially notied of the perlustration.
However, the Court found a violation of Art. 8 of the Convention. On the
one hand, he acknowledged that the actions of the prison authorities had
a legal basis, while the European Court of Human Rights focused on such
an issue as the «quality of the law» applied in this case. Italian law did not
specify the grounds on which a judge may allow a perlustration and for how
long. Thus, the judge’s discretion in these matters remained unacceptably
wide, and the law was too vague.
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However, the Court noted that the law could not describe in detail
each case in which perlustration was allowed - such a requirement would
be unfeasible, but the law should establish at least some framework that
limits the discretion of internal authorities in resolving this issue. Note that
at the national level, such rules are quite common. In particular, in cases
concerning the condentiality of correspondence between the accused and
his lawyer, it is necessary to cite as an example the case of Calogero Diana
v. Italy, which concerned a terrorist, a member of the Italian Red Brigade.
His correspondence with a lawyer was monitored by the prison
administration. Italian law allowed a judge’s reasoned decision on certain
categories of prisoners. In view of this, we can mention the Law of the
Republic of Kazakhstan of 5.12.1997 № 195 «On Advocacy», according to
Part 4 of Art. 18 of which the provision of information to the authorized
body for nancial monitoring is not a disclosure of legal secrecy.
The possibility of short-term restriction of the detainee’s communication
with the defense counsel is provided for in the Code of Principles for the
Protection of All Persons Subject to Detention or Arrest. Thus, Principle 16
of the Code states: «Notwithstanding the exceptions contained in paragraph
4 of principle 16 and paragraph 3 of principle 18, a detainee may be refused
in connection with the outside world, and in particular his family or lawyer,
during period not exceeding several days». Part 4 of Principle 16 states:
«Any notication referred to in this principle (notication of detention)
must be sent or addressed by the competent authority without delay. The
competent authority may defer notication for a reasonable period if the
exceptional circumstances of the investigation so require» (Human Rights:
A Collection Of International Treaties, 1995).
In view of the above, it can be concluded that the national criminal
procedure law establishes higher guarantees. Thus, the defense counsel has
the right to participate in interrogation and other proceedings conducted
with the participation of the suspect, accused, before the rst interrogation of
the suspect to have a condential meeting with him without the permission
of the investigator, prosecutor, court, and after the rst interrogation - the
same meetings without restriction. quantity and duration.
There is only one restriction on condentiality during the interrogation
of a suspect, accused and defense counsel: according to Part 5 of Art. 46 of
the Criminal Procedure Code of Ukraine «such meetings may take place
under the visual control of an authorized ocial, but in conditions that
exclude the possibility of eavesdropping and eavesdropping».
It should be emphasized that the above list of conditional blocks of
international minimum requirements for due process in an emergency is,
of course, not exhaustive and may become a promising area for further
research. Expansion and deepening of the latter is also possible through
the emergence of clearer international «patterns».
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In particular, an important step in this direction was taken by the
European Commission «For Democracy through Law» at the 106th plenary
session, at which a checklist of questions to states was developed and
published to assess the rule of law in emergencies (Recommendations For
The Unication And Harmonization Of The National Legislation Of The Cis
Member States In The Field Of Combating Terrorism, 2006).
That is, we can talk about the beginning of a new stage of standardization
of relations in this area. However, with the further development of
international law in this context, the number and content of rights that
cannot be restricted during an emergency may change. This will be aected
by both the increase in the practice of international judicial and quasi-
judicial human rights bodies and the change in the approaches of states
themselves to regulating the possibility of restricting human rights at the
national level (in particular, states may establish higher human rights
guarantees).
The importance of the issue under consideration requires its further
doctrinal elaboration and close attention of legal researchers. We therefore
believe that a working group should be set up under the auspices of the
United Nations to dene the minimum requirements to ensure proper legal
procedure in an emergency.
It should be noted that there is some positive experience in the world
in a somewhat similar direction (in the development of standards for
education in emergencies in 2003; works) (Minimum Education Standards
For Emergencies, Chronic Crises And Early Recovery, 2006). The work
of such a group may result in the development and adoption of a special
international convention on human rights in an emergency, based on
the provisions of the Declaration on Minimum Humanitarian Standards,
which will set out basic general principles and maximum human rights
restrictions.
In the context of criminal procedure, it is necessary to introduce such a
paradigm of dealing with the negative consequences of emergencies, such
universal requirements, which are based on the values of due process of
peacetime and most fully ensure the rights and interests of individuals.
(In the criminal justice system) (Resolution of The Verkhovna Rada Of
Ukraine, 2015).
The next part of our study will be devoted to the study of the peculiarities
of legal regulation and procedural order of pre-trial investigation of criminal
proceedings in emergency legal regimes in modern Ukraine. After all, as
practice shows, certain provisions of national law, investigative and judicial
practice do not always meet the requirements of such special procedures of
criminal proceedings by the international community.
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Today, the pre-trial investigation of criminal oenses committed on the
territory of Ukraine both in the area of the Joint Forces Operation and in
the territory of the Autonomous Republic of Crimea does not always meet
the criteria of eectiveness. Of course, its eciency and quality are aected
by the real extraordinary situation, which, of course, makes its adjustments
in the work of pre-trial investigation bodies.
However, this fact is often manipulated, justifying inaction by the
dicult situation in the region. The marker in this case is the absence of
the investigation process itself, the necessary eorts of the investigator to
conduct proper proceedings, etc. (as evidenced by criminal proceedings, in
which the vast majority of procedural documents are purely organizational,
such as to conduct investigative actions, etc.). The inability to establish
the facts and the ineectiveness of the investigative (investigative) actions
are explained by the investigators of the Joint Forces Operation and the
«impossibility of access to the territory».
It should be emphasized that the temporary occupation of the
Autonomous Republic of Crimea and the uncontrollability of certain
territories of Donetsk and Luhansk oblasts do not mean that Ukraine
«automatically» bears no responsibility for human rights violations in these
territories. Although the Resolution of the Verkhovna Rada of Ukraine
adopted the Statement of the Verkhovna Rada of Ukraine “On Derogation
from Certain Obligations Dened by the International Covenant on Civil
and Political Rights and the Convention for the Protection of Human
Rights and Fundamental Freedoms”, it does not release the state from its
responsibilities. obligations.
These territories continue to be considered as part of Ukraine and,
therefore, they continue to be subject to state jurisdiction. At the same
time, Ukraine cannot be held responsible for the actions of the occupying
authorities of another state or separatist regimes sponsored by another
state, if it is objectively impossible to restore control over the territories.
The government, by applying special rules to the conict zone, weakens the
guarantees of human rights protection by deviating from certain obligations.
According to the logic of the Statement, the deviation from certain
obligations under these international agreements applies to the area of
the long-term Joint Forces Operation, while “full responsibility for human
rights and implementation of relevant international agreements in Ukraine,
which is temporarily not controlled by the Ukrainian authorities, the state
exercising eective control over these territories”(see paragraphs 1, 2 of the
Statement) (Resolution Of The Verkhovna Rada Of Ukraine, 2015).
In the event of a temporary loss of state control over part of its territory,
positive obligations remain, which require all available diplomatic,
economic, judicial / legal and other measures to restore lost control and
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continue to guarantee fundamental rights and freedoms, the main The
Court is not the result achieved, but the desire of the state to achieve it,
which is generally inherent in positive obligations.
In criminal proceedings against persons subject to a special pre-trial
investigation, one of the procedural guarantees is the participation of
counsel. The right to protection of a suspect is a set of powers granted to
him by law in order to refute the suspicion, mitigate punishment, as well as
protect their personal interests (Malanchuk, 2017).
In case of intentional concealment of a suspect, investigators are forced
to submit a request for detention by analogy with a notice of suspicion.
Thus, in practice, a request for detention is sent by the last known place of
residence of the suspect by registered mail, published on the ocial website
of the designated authority and in the ocial publication of the designated
authority. The study found that the opinions of judges who grant or deny a
request for detention in such conditions were proportionally divided.
Those judges who grant a request for detention in the absence of a
suspect or accused shall initiate a special pre-trial investigation procedure
(in absentia). That is, the suspect has already decided to hide and is
actively implementing it, his whereabouts are unknown to law enforcement
agencies, and the decision to arrest the suspect has not been executed
due to his absence, permission to detain the suspect does not work. But
Part 1 of Art. 193 of the Criminal Procedure Code of Ukraine provides that
consideration of the petition for application of a precautionary measure is
carried out with participation of the prosecutor, the suspect, the accused,
his defender, except for the cases provided by h. 6 Art. 193 of the Criminal
Procedure Code of Ukraine, and in Part 6 of Art. 193 of the Criminal
Procedure Code of Ukraine there is a requirement to declare the suspect
internationally wanted.
In order to declare a suspect internationally wanted, a decision must
be made to choose a measure of restraint in the form of detention of the
same suspect. That is, there is a conict between the norms of the Criminal
Procedure Code of Ukraine and international acts of the Interpol institution.
The lack of a coordinated position of the courts on the criteria of
suciency of such evidence, the relevant investigative, prosecutorial and
judicial practice indicate the application by analogy of the provisions of
Art. 297-5 of the Criminal Procedure Code of Ukraine on the procedure
for serving procedural documents on the suspect, including summonses,
notices of suspicion, when the investigator or prosecutor establishes the
need for further application of the rules of the special pre-trial investigation
«in absentia» before the ocial decision on its implementation, ie except
sending at the last known place of residence or stay of the suspect by
publication in the mass media of the national sphere of distribution and on
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the ocial websites of the pre-trial investigation bodies (During Criminal
Proceedings Under The Procedure «In Absentia»On One Scale - The
Interests Of Ensuring The Eectiveness Of The Proceedings, And On The
Other – The Right Of A Person To A Fair Trial, 2018).
There is a scientic opinion among procedural scholars that during
a special pre-trial investigation the defense counsel may be questioned
instead of his client, and his testimony may be used as evidence as well
as the testimony of the accused (During Criminal Proceedings Under The
Procedure «In Absentia»On One Scale – The Interests Of Ensuring The
Eectiveness Of The Proceedings, And On The Other - The Right Of A
Person To A Fair Trial, 2018).
G.P. Vlasova believes that this position is dicult to agree with, as it
contradicts the role of the lawyer, the legal regulation of the lawyer and
the traditions that have developed over the centuries (Vlasova, 2014). And
we are ready to fully agree with the scientist. Therefore, it is impossible
to interrogate the defense counsel instead of the suspect, as such evidence
does not have factual data on the circumstances of the criminal oense, the
defense counsel did not commit such a criminal oense and did not witness
the commission of such a criminal oense or from free primary legal aid.
Thus, a special pre-trial investigation in criminal proceedings is a
consequence of the suspect’s choice of his line of defense in the form of
hiding from law enforcement, so communication of such a suspect with his
lawyer is impossible for objective reasons, and in case of change of conduct
of the suspect law and order, the court, the suspect will fully use the right to
defense, communication with a lawyer, the choice of a lawyer and will enjoy
all the rights dened in the Criminal Procedure Code of Ukraine.
One of the urgent problems is the inadequate pre-trial investigation
of missing persons. On 5 June 2015, the Parliamentary Assembly of the
Council of Europe adopted Resolution 2067 (2015) “Missing persons
during the conict in Ukraine”, in which it expressed serious concern about
the growing number of cases of missing persons (Resolution Parliamentary
Assembly, 2015). Deep concern over the fate of missing persons in Ukraine
is reected in numerous reports from international organizations (Volkova,
2016). Thus, in the 13th Report of the Oce of the United Nations High
Commissioner for Human Rights for the period from November 16, 2015 to
February 15, 2016, a separate section is devoted to the above issue (Report
Of The United Nations High Commissioner For Human Rights On The
Human Rights Situation In Ukraine, 2016).
According to the Report, the search for missing persons requires close
coordination between the relevant government bodies, including the
Ministry of the Interior, the Security Service and the Ministry of Defense,
as well as a special mechanism for obtaining applications from relatives of
missing persons in the Joint Forces Operation area.
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According to statistics, in the rst year since the beginning of Operation
Allied Forces, almost 4,000 missing people have been registered
(information from the Ministry of Internal Aairs, which was released in
November 2015).
At the beginning of the pre-trial investigation into the disappearance
of a person, the practice is faced with the problem of uncertainty of
circumstances that may indicate the commission of a criminal oense.
Usually, the relevant statement or notication contains only information
about the missing person, without specifying the circumstances of their
disappearance.
In departmental regulations, the Ministry of Internal Aairs of Ukraine
applied a special approach to the implementation of the provisions of Art.
214 of the Criminal Procedure Code of Ukraine, the duty of the investigator
to enter the relevant information in the Unied Register of pre-trial
investigations and to initiate an investigation.
According to paragraphs. 9.4.2 of the order of the Ministry of Internal
Aairs of Ukraine dated August 14, 2012 № 700 «On the organization of
interaction of pre-trial investigation bodies with other bodies and units of
internal aairs in the prevention, detection and investigation of criminal
oenses» the head of the investigative unit within 24 hours, as well as in
case of disappearance of an adult in circumstances indicating the possibility
of committing a criminal oense against him, provides mandatory entry
in the Unied Register of pre-trial investigations information about the
specied criminal oense and its preliminary qualication as premeditated
murder (Article 115 of the Criminal Code) and takes all measures provided
by the Criminal Procedure Code of Ukraine for a comprehensive, complete
and impartial investigation of the circumstances of criminal proceedings.
In accordance with paragraph 6 of ch. 2 of Section II of the Regulations
on the Procedure for Maintaining the Unied Register of Pre-trial
Investigations, simultaneously with the determination of the preliminary
legal qualication, this application shall be entered into the Unied Register
of Pre-trial Investigations with an additional mark «disappearance»
(Regulations On The Unied Register Of Pre-Trial Investigations, The
Procedure For Its Formation And Maintenance, 2020).
However, the analysis of law enforcement practice shows that a missing
person in the event of their death is considered found if the identication
procedure will establish that the physical or biological characteristics of
the body of the deceased correspond to the characteristics of the missing
person.
In fact, it turns out that there is the body of the deceased, the expert’s
conclusion conrms the coincidence of DNA and life-threatening
circumstances that caused the death. Investigators do not see the events of
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the criminal oense in the intentional deprivation of human life and close
the criminal proceedings on the death of a person in case of conrmation of
the coincidence of DNA proles under paragraph 1, part 1 of Art. 284 of the
Criminal Procedure Code of Ukraine. Within the criminal proceedings, the
circumstances of the person’s death are not established.
The provisions of Part 1 of Art. 91 of the Criminal Procedure Code
of Ukraine, which provides that in criminal proceedings the event of
a criminal oense is subject to proof (time, place, manner and other
circumstances of the criminal oense). The inability to establish the facts
and the ineectiveness of the investigative actions are explained by the
anti-terrorist operation and the «impossibility of access to the territory».
Meanwhile, every family has the right to know the fate of their relative,
and the exercise of this right is the duty of the state, in particular, in light of
the recently ratied by Ukraine International Convention for the Protection
of All Persons from Enforced Disappearance (June 2015) (International
Convention On The Seizure Of People From Violent Events, 2006). That is
why the pre-trial investigation authorities should use all means to establish
the facts of missing persons in the area of the Joint Forces Operation
within the framework of criminal proceedings. This is the only way to meet
the requirements for the eectiveness of the investigation (Resolution
Parliamentary Assembly, 2015).
We will note that in this direction certain work is conducted (Draft Law
On The Legal Status Of Missing Persons, 2016). The basis for the formation
of national legislation on this issue should be the Model Law on Missing
Persons (Model Law On Missing Persons, 2008).
Conclusions
The study of international legal requirements for the proper legal
procedure of pre-trial investigation in criminal proceedings under
emergency legal regimes allows us to formulate the following conclusions.
Ensuring human rights in national criminal proceedings in a state of war,
emergency or in the area of the Joint Forces Operation in eastern Ukraine
is an important vector of scientic development, as it should be based on a
reasonable balance of interests of society and the state. and eective human
rights in the context of the demands of the world community.
Analysis of the International Covenant on Civil and Political Rights,
the Convention for the Protection of Human Rights and Fundamental
Freedoms and the case law of the European Court of Human Rights (Axoi
v. Turkey, Cyprus v. Turkey, Erdem v. Germany, Liu and Liu v. Russia,
Tomazi v. France, Ibrahim et al. v. the United Kingdom, Peter v. Romania,
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etc.) suggests that the State’s positive obligation to carry out an eective
pre-trial investigation of each criminal oense exists even in complex and
dangerous situations, including a state of emergency or military conict.
The realization of the right of relatives of the missing is a duty of
the state, in particular, in the light of the recently ratied by Ukraine
International Convention for the Protection of All Persons from Enforced
Disappearance. This actualizes the use of pre-trial investigation bodies of
all means to establish the facts of missing persons / deaths in the area of the
Joint Forces Operation within the criminal proceedings, which will allow to
comply with all requirements for the eectiveness of the investigation. The
basis for the formation of national legislation on this issue should be the
relevant law on missing persons.
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Esta revista fue editada en formato digital y publicada
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Vol.40 Nº 72
