Article 62

“A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through the process of law and established by a court verdict of guilty...”

Article 63

“A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law...”

2. Criminal Code

41. Relevant provisions of the Code read as follows:

Article 191
Misappropriation, embezzlement or conversion of property by malfeasance

“1. Misappropriation or embezzlement of somebody else’s property by a person to whom it was entrusted...

2. Misappropriation, embezzlement or conversion of property by malfeasance...

3. Any such actions as provided for by paragraph 1 or 2 of this Article, if repeated or committed by a group of persons [acting] upon their prior conspiracy, shall be punishable by restraint of liberty for a term of three to five years, or imprisonment for a term of three to eight years, with a prohibition on the right to occupy certain positions or engage in certain activities for a term of up to three years.

4. Any such actions as provided for by paragraphs 1, 2 or 3 of this Article, if committed in respect of a large amount...

5. Any such actions as provided for by paragraphs 1, 2, 3 or 4 of this Article, if committed in respect of an especially large amount, or by an organized group, shall be punishable by imprisonment for a term of seven to twelve years, with a prohibition on the right to occupy certain positions or engage in certain activities for a term of up to three years and confiscation of property.”

Article 364 Abuse of authority or office

1. Abuse of authority or office, namely the intentional use of authority or official position contrary to the official interests [of the State] by an official for financial gain or other personal benefit or the benefit of any third parties, where it causes substantial damage to legally protected rights, freedoms and interests of individual citizens, or to State and public interests, or the interests of legal persons...

2. The same act, if it causes any grave consequences...

3. Any such actions as provided for by paragraph 1 or 2 of this Article, if committed by a law enforcement officer, shall be punishable by imprisonment for a term of five to twelve years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years and forfeiture of property.

Article 365 Exceeding authority or official powers

1. Exceeding authority or official powers, namely the intentional commission of acts by an official which patently exceed the rights and powers vested in him/her, where it causes substantial damage to the legally protected rights and interests of individual citizens, or State and public interests, or the interests of legal persons...

2. Exceeding authority or official powers accompanied with violence, use of weapons, or actions that cause pain or are derogatory to the victim’s personal dignity...

3. Any such actions as provided for by paragraph 1 or 2 of this Article, if they cause grave consequences, shall be punishable by imprisonment for a term of seven to ten years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.

3. Code of Criminal Procedure

42. Relevant provisions of the Code read as follows:

Article 43

The accused and his rights

“... The accused has the right to... get acquainted with all materials in the case file after the [conclusion of the] preliminary investigation or inquiry...”

Article 43-1

The suspect

“... The suspect has the right to... request the review by a court or prosecutor of the legality of his detention, lodge complaints against the actions and decisions of... the investigator...”

Article 48

Duties and rights of defence counsel

“...From the moment of his entry into the case, counsel for the defendant has the right:

...

(3) to get acquainted with the materials which substantiate the detention of a suspect or choice of preventive measure or indictment, and, after the [conclusion of the] pre-trial investigation, with all materials in the case file...”

Article 106: Detention of a criminal suspect by a body of inquiry

“A body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:

(1) if the person is discovered whilst, or immediately after, committing an offence;

(2) if eyewitnesses, including victims, directly identify this person as the one who committed the offence;

(3) if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home.

For each case of detention of a criminal suspect, the body of inquiry shall be required to draw up a record mentioning the grounds [for detention], the motives [for detention], the day, time, year and month [of detention], the place of detention, the explanations of the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel as from the moment of his arrest[2], in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The record of detention shall be signed by the person who drew it up and by the detainee.

A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor. At the request of the prosecutor, the material which served as grounds for detention shall also be sent to him.

The body of inquiry shall immediately inform one of the suspect’s relatives of his detention...

Within seventy-two hours after the arrest the body of inquiry shall:

(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;

(2) release the detainee and select a non-custodial preventive measure; [or]

(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her.

If the detention is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the body of inquiry for application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days after receiving it. If the request has not been received or if the complaint has been received after seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it.

The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful.

The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling.

Detention of a criminal suspect shall not last for more than seventy-two hours.

If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up a record to that effect, and shall inform the official or body that carried out the arrest accordingly.”

Article 135

Compulsory attendance by an accused

“An accused must appear upon the investigator’s summons at the fixed time.

In case of failure to appear without valid reasons, the accused shall be taken to the investigator by force...”

Article 142

Explaining his or her rights to an accused during an investigation

“When charging an accused, the investigator must explain to the accused that during the pre-trial investigation he or she is entitled to:

...

(2) make a statement about the charges against him or her or refuse to make a statement and to answer questions;

...

(6) with the permission of the investigator, be present at the performance of certain investigative actions;

(7) after the completion of the pre-trial investigation, get acquainted with all the materials in the case file...”

Article 148

Purpose and grounds for the application of preventive measures

“Preventive measures shall be imposed on a suspect, accused, defendant or convicted person in order to prevent him or her from attempting to abscond from an inquiry, investigation or the court, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the enforcement of procedural decisions.

Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from the investigation and the court, or if he or she fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities.

If there are insufficient grounds for the imposition of preventive measures, the suspect, accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer, investigator, prosecutor or the court, and shall also undertake to notify them of any change in his place of residence.

If a preventive measure is applicable to a suspect, he or she shall be charged within ten days from the time of imposition of the measure. In the event that the indictment is not issued within that time, the preventive measure shall be annulled.”

Article 150

Circumstances to be taken into account in choosing a preventive measure

“In resolving the issue of imposing a preventive measure, in addition to the circumstances specified in Article 148 of this Code, such circumstances as the gravity of the alleged offence, the person’s age, state of health, family and financial status, type of employment, place of residence and any other circumstances relating to the person shall be taken into consideration.”

Article 151

Written undertaking not to abscond

“A written undertaking not to abscond is a written commitment by a suspect or an accused not to leave his or her place of permanent residence or temporary address without the permission of the investigator.

If the suspect or accused breaches this written undertaking not to abscond, it may be replaced by a more stringent preventive measure. The suspect or the accused shall be informed about this upon giving the written undertaking not to abscond.”

Article 165-2: Procedure for the selection of a preventive measure

“At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the body of inquiry, investigator or prosecutor.

In the event that the body of inquiry or investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor’s consent [it or] he shall lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect. In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to verify that the evidence was received in a lawful manner and is sufficient for charging the person.

The application shall be considered within seventy-two hours of the time at which the suspect or accused is detained.

In the event that the application concerns the detention of a person who is not currently deprived of his liberty, the judge shall be entitled, by means of an order, to give permission for the suspect to be detained and brought before the court under guard. Detention in such cases may not exceed seventy-two hours; and in the event that the person is outside the locality where the court is situated, it may not exceed forty-eight hours from the moment at which the detainee is brought within the locality.

Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigating bodies or investigator. A prosecutor shall question the suspect or accused and, if necessary, shall hear evidence from the person who is the subject of the proceedings, shall obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and shall make an order:

(1) refusing to select the preventive measure if there are no grounds for doing so; [or]

(2) selecting a preventive measure in the form of taking of the suspect or accused into custody.

The court shall be entitled to select a non-custodial preventive measure for the suspect or accused if the investigator or prosecutor refuses to select a custodial preventive measure for him or her.

The judge’s order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days from the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge’s order.”

Article 218 (in force at the material time)

Informing the accused of the termination of the investigation of the case and allowing him to study the materials in the case file

“After deciding that the evidence collected in the case is sufficient to warrant an indictment, and after complying with the terms of Article 217 of this Code, the investigator shall inform the accused that the investigation of his case has ended and that he has the right to get acquainted with all of the materials in the case file personally and/or with the assistance of counsel...

If the accused has not shown any interest in familiarising himself with the materials in the case file with the participation of counsel, he shall be personally provided with all of the materials in the case file for familiarisation. In the course of this familiarisation process, the accused has the right to make extracts (to copy in writing) and to lodge motions. The investigator must allow all accused persons, even if there are several in one case, to familiarise themselves with all the materials in the case file...

...Preliminary investigation materials presented for familiarisation shall be filed and numbered. During the presentation of the materials of the pre-trial investigation, the investigator shall be obliged to provide the accused, upon request of the latter, with a duly certified copy of the list of the materials in the case file...

The time afforded to the accused and his counsel for familiarisation with all materials in the case file shall not be limited.”

4. Domestic courts’ case-law

43. The Government submitted two decisions of the domestic courts in which individuals had been awarded compensation for their unlawful detention.

44. In a decision of 17 January 2007, the Odessa Regional Court of Appeal awarded damages to a person who had been arrested by the police on 22 November 2005 but released the next day following the intervention of a prosecutor, who had found that person’s arrest unlawful and quashed the police’s decision to arrest. On 5 December 2005 the Bilgorod-Dnistrovskiy Local Court passed a resolution confirming the unlawfulness of the arrest.

45. In a decision of 11 October 2007, the Kyiv Court of Appeal awarded damages to a person who had been detained for twenty-two hours on 7 and 8 July 2002 at a police station without any documentation and had then been released. In this case, the person’s detention was found unlawful by the same court of appeal on 25 May 2006, as the person’s arrest and detention had not complied with Article 106 of the Code of Criminal Procedure.

B. Relevant international materials

1. The Country Reports on Human Rights Practices by the US Department of State

46. The Country Reports on Human Rights Practices of the US Department of State (hereafter “the Reports”) for 2010, released on 8 April 2011, noted with respect to Ukraine:

“d. Arbitrary Arrest or Detention

The constitution and the law prohibit arbitrary arrest and detention; however, in practice problems remained.

There was a sharp increase in charges brought against opposition politicians after the appointment of a new prosecutor general on November 4, giving rise to the appearance of selective and politically motivated prosecution by the Yanukovych government. Between November 1 and December 31, prosecutors brought charges against former prime minister Yulia Tymoshenko and more than eight high-level members of her government for abuse of office and/or misuse of state funds during their tenure. The questioning of accused individuals by government prosecutors, which often lasted for hours at a time over a period of several days, and the denial of bail in certain cases further exacerbated the perception of politically motivated prosecution (see section 4). The government contended that the prosecutions were not targeting the opposition, and that there were many ongoing investigations of members of the governing party; however, with only a few exceptions these were low-level, career officials.

On December 12, the UHHRU [the Ukrainian Helsinki Human Rights Union] and the Kharkiv Human Rights Group issued a statement that the government’s criminal prosecutions were only aimed at members of the opposition. As a result, the government’s actions "spell the effective use of criminal court proceedings for political ends... and run counter to democratic values based on equality of all before the law and undermines the foundations of criminal justice," the statement said.

On December 26, police detained former interior minister Yuriy Lutsenko in Kyiv on allegations of embezzlement, abuse of office, and forgery. The appeals court denied his petition for bail and approved the prosecutor general’s request for a two-month detention. Local human rights observers and opposition commentators described Lutsenko’s arrest as politically motivated, given the administrative nature of his alleged offenses. Lutsenko alleged that the prosecutor’s office ignored his constitutional rights throughout the investigation, in particular, delaying access to and denying time to review case materials and creating other "artificial barriers" to his right to become acquainted with the case...”

2. European Parliament resolution of 9 June 2011 on Ukraine: the cases of Yulia Tymoshenko and other members of the former government

“The European Parliament,

...G. whereas 12 former high-ranking officials from the Tymoshenko government are in pre-trial detention, including the former Interior Minister, Yuri Lutsenko, one of the leaders of the People’s Self-Defence Party, who has been charged with abuse of office and misappropriation of funds and was arrested on 26 December 2010 for alleged non-cooperation with the prosecution, and the former First Deputy Minister of Justice, Yevhen Korniychuk, who was arrested on 22 December 2010 on charges of breaking the law in connection with public procurement procedures for legal services,

H. whereas Mr Lutsenko was not released from pre-trial detention when his trial opened on 23 May 2011, despite the fact that detention for alleged non-cooperation in the investigation of his case is an extremely disproportionate measure,

I. whereas a preliminary report of the Danish Helsinki Committee for Human Rights on the Lutsenko and Korniychuk trials has listed massive violations of the European Convention on Human Rights...

N. whereas the EU continues to emphasise the need for respect to be shown for the rule of law, incorporating fair, impartial and independent legal processes, while avoiding the danger of giving rise to any perception that judicial measures are being used selectively; whereas the EU considers these principles especially important in a country which aspires to enter into a deeper contractual relationship based on a political association,

1. Stresses the importance of ensuring the utmost transparency in investigations, prosecutions and trials, and warns against any use of criminal law as a tool to achieve political ends;

2. Is concerned about the increase in selective prosecution of figures from the political opposition in Ukraine as well as the disproportionality of measures applied, particularly in the cases of Ms Tymoshenko and Mr Lutsenko, former Interior Minister, and notes that Mr Lutsenko has been in custody since 26 December 2010; expresses its support for the Ukrainian Human Rights Commissioner, Nina Karpachova, who has asked the Ukrainian Prosecutor General to consider the possibility of applying preventive measures that do not involve detention...

4. Stresses that ongoing investigations of prominent Ukrainian political leaders should not preclude them from actively participating in the political life of the country, meeting voters and travelling to international meetings; calls, therefore, on the Ukrainian authorities to lift the travel ban, both domestically and internationally, on Yulia Tymoshenko and other key political figures...”

3. A Freedom House Report on the State of Democracy and Human Rights in Ukraine

47. In April 2011, Freedom House issued the above report under the title Sounding the Alarm: Protecting Democracy in Ukraine. The relevant extracts from the report read as follows:

“ Corruption

... the government’s anticorruption campaign lacks credibility. Authorities point to the prosecution of former prime minister Tymoshenko and former interior minister Yuriy Lutsenko as a signal that corruption will not be tolerated and that politicians are not above the law. However, these cases are not focused on charges of personal enrichment, but rather on administrative abuses. The government is correct that the prosecutions send a strong signal, but that signal is actually a warning to other would-be opposition figures not to challenge the authorities...

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