A/HRC/45/CRP.9 In rare cases where judges found the arrest unlawful, there was no effective remedy provided.40 39. OHCHR also documented 57 cases with credible allegations that evidence, such as hand grenades or rifle rounds, was planted in order to justify arrests. Complaints about planted evidence went unaddressed by prosecutors and judges in these cases, while other safeguards, such as the requirement of video recording searches or of the presence of attesting witnesses, ostensibly failed to prevent abuses during searches. 2. Pre-trial detention 40. Between April 2014 and April 2020, OHCHR documented a widespread practice by judges of remanding defendants in conflict-related criminal cases in custody without considering its necessity or alternatives to pre-trial detention, in violation of the defendants’ right to liberty, and jeopardizing their presumption of innocence. 41. Pursuant to article 9 of the ICCPR, pre-trial detention of individuals on criminal charges should not be a general rule. Both international human rights law and Ukrainian legislation require a court to determine the lawfulness of detention as the basis for deprivation of liberty.41 In line with the ICCPR,42 the CPC allows for pre-trial detention on the basis of (1) a reasonable suspicion that a person has committed a crime; (2) the determination of risks that give reasonable grounds to believe that the suspect would abscond, interfere with the investigation or continue committing crimes; and (3) the determination that less intrusive measures, such as bail, would not be enough to mitigate the risks. 43 If the prosecutor fails to prove any of the three elements, the court must deny the motion for pre-trial detention and impose a less intrusive measure or release the suspect. 42. Even though the burden of proof for all three elements lies with the prosecutor, in 100 cases documented by OHCHR, prosecutors requested pre-trial detention without establishing the reasonableness and necessity of this or any other measure.44 They often simply listed the risks as enumerated in the law, without applying the circumstances of the specific case at hand and failed to argue why only pre-trial detention could mitigate the risks. OHCHR observed that the burden of proof then shifted to the defence to prove that the defendant should be released. By granting such unfounded motions, the courts failed in their duty to exercise judicial control of detention, resulting in the automatic application and extension of pre-trial detention of individuals. 43. Such practice not only amounted to arbitrary detention, but also negatively affected the presumption of innocence, as it was assumed that the defendants will continue to commit crimes or abscond. 44. In addition, between October 2014 and June 2019, the law limited judges’ powers to choose among alternatives to pre-trial detention.45 According to article 176.5 of the CPC, in 40 41 42 43 44 45 10 See ruling of Shevchenkivskyi district court of Kyiv, 14 December 2017, available at reyestr.court.gov.ua/Review/63439265. CPC, article 177.2 requires an investigative judge or court to order detention or bail. The investigative judge is a judge of first instance, authorised to judicially control compliance with the human rights, freedoms and interests of persons in criminal proceedings. The Human Rights Committee stated that pre-trial detention must be based on an individualised determination that it is reasonable and necessary, taking into account all relevant circumstances, including to mitigate the risks of flight, interference with evidence or the recurrence of crime (General Comment No. 35, para. 38). CPC, article 176 provides a variety of controls to mitigate these risks including a personal undertaking, personal guarantee, monetary bail, house arrest and pre-trial detention. The report focuses on OHCHR findings in conflict-related criminal proceedings, which falls under the limitations imposed by CPC, article 176.5 (see paras. 44-46 below), however OHCHR has observed the same pattern in other high-profile and emblematic criminal proceedings during its five-year operation in Ukraine. Paragraph 5 of article 176 was introduced to the Criminal Procedure Code on 7 October 2014 by the law on ensuring the inevitability of punishment for certain crimes against Ukraine’s national security, public security and corruption crimes no. 1689-VII, available at zakon.rada.gov.ua/laws/show/168918#n27.