A/HRC/45/CRP.9 VI. Human Rights Concerns in Armed Group-Controlled Territory 100. Noting OHCHR’s mandate to promote and protect the human rights of everyone, everywhere, this report assesses how the human rights of persons living within territory controlled by the self-proclaimed ‘republics’ are affected when they exercise governmentlike functions. This assessment does not legitimize the self-proclaimed ‘republics’, their decisions and actions. Despite the restrictions imposed by both ‘republics’ regarding access to places of detention and ‘court’ hearings, human rights violations described in this part have been verified as per OHCHR standard methodology. A. Framework applied by ‘Donetsk people’s republic’ and ‘Luhansk people’s republic’ 101. Both self-proclaimed ‘republics’ adopted ‘constitutions’ 126 in May 2014 which set forth a broad spectrum of fair trial guarantees, including separation of powers, equality before the court, right to liberty of persons and prohibition of arbitrary arrest, right to privacy, right to legal assistance, presumption of innocence, right not to testify against oneself, and the prohibition of double jeopardy and retroactive application of criminal law. 102. The framework for processing ‘criminal cases’ in territory controlled by ‘Luhansk people’s republic’, adopted in April-August 2015, was based solely on relevant Russian Federation legislation. The framework regulating ‘criminal proceedings’ in territory controlled by ‘Donetsk people’s republic’ was crafted in 2014-2015 based on the Criminal Procedure Code of Ukraine of 1960 (as amended on 29 June 2001 127), and not the Criminal Procedure Code of Ukraine of 2012 which was in force at that time. 128 Both self-proclaimed ‘republics’ continued to apply the Ukrainian legislation in force at the time of the adoption of their ‘constitutions’ to address any gaps in their ‘legislation’.129 103. OHCHR is concerned that the ‘criminal procedure code’ of ‘Donetsk people’s republic’, as applied, results in an imbalance favouring the ‘prosecution’ and infringing upon fair trial rights.130 Importantly, this legislation provides no judicial control over pre-trial investigation and pre-trial detention, which is ordered solely by the ‘prosecution’. OHCHR is further concerned that ‘Donetsk people’s republic’ has instituted the death penalty. 126 127 128 129 130 22 ‘Constitution’ of ‘Donetsk people’s republic’ adopted 14 May 2014, available at dnrsovet.su/konstitutsiya/; ‘Constitution’ of ‘Luhansk people’s republic’ adopted 18 May 2014, available at nslnr/zakonodatelstvo/konstitutsiya/. The 2001 amendments provided for judicial control of detention and other improvements of the legal status of defendants. The ‘order’ of ‘council of ministers’ of ‘Donetsk people’s republic’ “on application of the criminal procedure legislation in the territory of Donetsk people’s republic during the transitional period” No. 7-58 of 31 May 2016, available at gisnpa-dnr.ru/npa/0003-7-58-2016-05-31/. In 2018, the rules were significantly changed and consolidated with the adoption of the ‘criminal procedure code’ and the ‘laws’ on intelligence-gathering, status of ‘judges’ and the ‘judicial system’. Decision of the ‘council of ministers’ of ‘Donetsk people’s republic’ No. 9-1 of 2 June 2014, available at supcourt-dnr.su/zakonodatelstvo/postanovlenie-soveta-ministrov-doneckoy-narodnoyrespubliki-o-primenenii-zakonov-na. See transitional provisions of the ‘law’ of ‘Luhansk people’s republic’ “on legal acts in Luhansk people’s republic” of 30 April 2015, available at nslnr.su/zakonodatelstvo/normativno-pravovaya-baza/937/. According to article 86.2 of the ‘constitutions’ of the ‘republics’, legislation in force prior to the adoptions of the ‘constitutions’, is in force to the extent it does not contradict the ‘constitutions’. For example, the defence is limited in its ability to collect and present evidence, the ‘court’ acts as an assistant to the prosecution rather than an independent arbiter, and pre-trial detention is used excessively and could be applied by order of the prosecutor. The prosecutor was also empowered to order investigative actions impacting upon human rights. See Explanatory note to the draft Criminal Procedure Code of Ukraine No. 4651-VI of 13 April 2012, p.1-2, available at w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=42312. See also Opinion on the draft Criminal Procedure Code of Ukraine Prepared by the Justice and Human Dignity Directorate, Directorate General of Human Rights and Rule of Law, para. 10-20, of 2 November 2011, available at rm.coe.int/16802e707d.