A/HRC/45/CRP.9 motivating them to enter a plea bargain.120 Unsuccessful efforts to challenge the courts’ rulings on pre-trial detention as well as the Government’s failure to duly investigate their claims of torture and ill-treatment resulted in loss of hope for a fair trial, and defendants felt compelled to plead guilty. 94. When presented with plea bargains, courts failed to properly examine them. In 21 cases, OHCHR observed that courts accepted plea bargains without properly verifying their voluntariness, even in cases where the defendants had pled “not guilty” for more than two years, while in detention, or where they had persistently complained of being tortured or illtreated. OHCHR observed that the judges failed to look into specific allegations that would suggest coercion to plead guilty, and merely asked the defendants whether their decision was voluntary. OHCHR is concerned that this does not properly take into account duress and thus fails as an effective judicial safeguard against forced confessions. 95. This may not only lead to miscarriages of justice, but also presents incentives for law enforcement or security forces to commit human rights violations to secure confessions and convictions in other criminal proceedings and may as well result in impunity for serious violations of international law. G. Right to be present during one’s trial 96. Since being introduced in October 2014, in absentia proceedings have been used to prosecute conflict-related crimes.121 OHCHR is concerned, however, that the current procedure does not meet international human rights standards. 97. Under international human rights law, accused persons have the right to be present during trial, and when this trial is related to an armed conflict, this right is also protected by international humanitarian law.122 Although in absentia proceedings appear to run counter to this right, they are not prohibited per se when certain conditions are met, including the possibility of retrial once the defendant has been located.123 98. Under Ukrainian law, however, a retrial following in absentia proceedings is only possible if the defendant has been located before the court delivered its verdict on the case.124 After the verdict has been delivered, the defendant is only entitled to an appeal, not a retrial. 99. OHCHR notes that non-compliance of the legislation with international standards may lead other States to refuse to extradite defendants convicted in absentia, preventing the enforcement of verdicts125 and hampering the right to an effective remedy and justice for victims of the initial crime. 120 121 122 123 124 125 OHCHR, Report on the human rights situation in Ukraine 16 May to 15 August 2018, para. 61. Law on ensuring inevitability of punishment for certain crimes against national security of Ukraine, public security and corruption crimes, No. 1689-VII, available at zakon.rada.gov.ua/laws/show/168918#n27. ICCPR, article 14.3(d). HRC, Communications No. 16/1977, Mbenge v. Zaire, para. 14.1; HRC, General Comment No. 32, para. 31. For the possibility of retrial, see Annex to Views of the Human Rights Committee, article 5, para. 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, CCPR/C/66/D/699/1996/Corr.1, paras. 9.4-9.5. The European Court of Human Rights has also stated that the lack of opportunity to obtain a fresh determination of the charges against a person by a court in full respect of their defence rights, after being apprehended, constitutes a violation of the right to a fair trial. See, e.g., Colozza v Italy (para. 29), Sanader v. Croatia (para. 95). CPC, article 323.4. According to article 3 of the Second Additional Protocol to the European Convention on Extradition of 5 June 1983, the requested Party may refuse to extradite a person convicted in absentia unless the requesting Party guarantees such person’s right to retrial. 21