A/HRC/45/CRP.9 conflict-related cases, judges could only remand an individual in custody or release them unconditionally.46 This violates the ICCPR, which prohibits imposition of mandatory pretrial detention on individuals prosecuted for a specific crime.47 45. On 25 June 2019, the Constitutional Court of Ukraine found article 176.5 unconstitutional and repealed it, inter alia because it limited judicial control of detention and thus interfered with an individuals’ right to liberty.48 During the four and a half years in which this article was applied, most individuals detained pursuant to it remained in custody with little chance of release pending trial. Some spent over four years in pre-trial detention, in breach of the defendant’s right to be tried within a reasonable time or released. 49 OHCHR found that, during this time, the legally mandated periodic assessment of the reasonableness and necessity of pre-trial detention became a formalistic exercise. 46. OHCHR documented 16 cases where, following the court-ordered release of an individual, the prosecution pressed additional charges of conflict-related crimes in order to ensure that the defendant would be re-arrested and detained on the basis of CPC article 176.5. In one case, an investigator additionally charged a soldier prosecuted for desertion with high treason after his release was granted by the court. As a result, the defendant was re-arrested on the new charges and the court ordered his detention under article 176.5. 50 47. OHCHR also documented 85 cases where individuals believed to be affiliated or linked with the armed groups were held incommunicado prior to official arrest, during which law enforcement and security officers attempted to extract self-incriminating testimonies. Individuals told OHCHR that the stress and fear stemming from isolation coerced them into confessing to anything.51 OHCHR notes that incommunicado detention inherently violates international human rights law, and may amount to torture or inhumane treatment.52 48. OHCHR recalls that irrespective of the specific charges against an individual, the right to liberty should only be limited in exceptional circumstances and should always be subject to effective judicial control. This control implies a prima facie assessment of the case, 46 47 48 49 50 51 52 Article 176.5 of the Criminal Procedure Code limited the judges’ powers to decide on the third element by stating that no other measures except for pre-trial detention can be applied to individuals prosecuted for conflict-related crimes. It did not affect their obligation to establish existence of (1) a reasonable suspicion that a person has committed a crime and (2) the risks of flight, interference with the investigation or recurrence of crimes. ICCPR, article 9.2. See also HRC, General Comment No. 35, para. 38. The Constitutional Court noted that the wording of this article was contrary to international human rights standards by limiting the powers of the court to determine bail or conditional releases of its own choice, thus offsetting judicial control of detention. Pro-forma court decisions to remand individuals in custody did not minimise the risk of arbitrary detention. The full text of the decision is available at ccu.gov.ua/sites/default/files/docs/7-r_19.pdf. HRC, General Comment No. 35, para. 37. OHCHR interview, 2 August 2018. In this case, the SBU arrested a man on 16 June 2016 on charges of smuggling weapons. On 28 September 2016, upon his release on bail from the SIZO, an SBU investigator requested he come to the SBU office for interrogation the next day. On 29 September 2016, during the interrogation, the SBU additionally charged him with conspiring to commit a terrorist act (article 258.2 of the Criminal Code) and a court immediately remanded him in custody (ruling of Kyivskyi district court of Kharkiv, 29 September 2016, available at reyestr.court.gov.ua/Review/61670336), where he remained until the pronouncement of the verdict on 18 February 2019 (verdict of Kharkivskyi district court of Kharkiv region, 18 February 2019, available at www.reyestr.court.gov.ua/Review/79888377). In another case (OHCHR interview, 19 October 2017) the SBU arrested two men on 18 September 2017, under article 110.2 of the Criminal Code for making public calls to trespass against the territorial integrity and inviolability of Ukraine (rulings of Kyivskyi district court of Odesa, 19 September 2017, available at reyestr.court.gov.ua/Review/69108139 and reyestr.court.gov.ua/Review/69108082) directly after the Illichivskyi district court of Odesa region acquitted them of organising mass disturbances on 2 May 2014 in Odesa, which led to the deaths of 6 people (verdict of Illichivskyi town court of Odesa region, 18 September 2017, available at reyestr.court.gov.ua/Review/68926870). OHCHR, Report on the human rights situation in Ukraine 16 November 2017 – 15 February 2018, para. 65, available at www.ohchr.org/Documents/Countries/UA/ReportUkraineNov2017Feb2018_EN.pdf. HRC, General Comment No. 35, para. 35. 11