A/HRC/45/CRP.9
169. While most of these violations have persisted throughout the reporting period,
OHCHR findings suggest that the frequency of attacks against lawyers and acts of pressure
on judges by the prosecution and groups that promote violence has decreased since 2018.
Additionally, the annulment of article 176.5 of the CPC in June 2019 has resulted in a
decrease in violations of the right to liberty pending trial.
170. The majority of these violations could in fact be addressed through existing procedural
safeguards, without legislative amendments, as they are for the most part a result of the
authorities’ lack of enforcement of relevant fair trial guarantees, or of the authorities
tolerating violations when committed against individuals prosecuted for affiliation or links
with self-proclaimed ‘republics’. In order to ensure compliance with the right to liberty of
persons, all allegations of unlawful arrest should be investigated under article 371 of the
Criminal Code. Courts must ensure that their decisions to remand defendants in custody
pending trial are in line with the requirements of articles 176 and 177 of the Criminal
Procedure Code, and lawyers should be disciplined for violations of the code of professional
conduct. Similarly, any interference with the independence of judges should be investigated
under articles 376 or 377 of the Criminal Code. Attacks against lawyers should trigger
investigations under articles 397 to 400 of the Criminal Code, taking into account the victims’
special status and protection needs. By virtue of article 474.6 of the Criminal Procedure Code,
judges are authorized to request any documents they deem necessary when reviewing plea
bargains, in order to ensure the genuineness of the defendants’ intention to plead guilty.
171. Addressing other violations would require legislative amendments, as set out in the
recommendations below.
172. In self-proclaimed ‘republics’, OHCHR findings suggest that the bodies processing
conflict-related cases are neither independent nor impartial, and the proceedings themselves
are rife with violations of international human rights standards on fair trials, as well as
arbitrary detention and use of torture and intimidation.
173. In Crimea, the continuing wholesale application of Russian Federation criminal
legislation, as well as the manner in which criminal law and procedure are applied, violate
both international humanitarian law and international human rights law. Russian Federation
authorities must respect their obligations as an occupying Power and ensure that general
principles of law and fair trial rights are respected
174. The majority of the violations of international humanitarian law and international
human rights law described in this report are systematic in nature, and may amount to war
crimes.
175. The recommendations formulated below include measures for preventing further
violations of the right to a fair trial, not only in conflict-related criminal cases. Some of the
recommendations are drawn from previous OHCHR reports on the human rights situation in
Ukraine, as they remain relevant.
176.
Recommendations to the Government of Ukraine:
To the Parliament of Ukraine:
(a)
Ensure that any legislation regarding criminal responsibility of judges
corresponds to international standards guaranteeing their independence through
functional immunity. The provisions that criminalize misconduct of judges should be
formulated precisely enough to guarantee their independence and functional immunity
in interpretation of the law, assessment of facts or weighing of evidence;
(b)
Amend the procedure of launching investigations against judges to ensure
better protection against attempts of influence through procedural safeguards for all
judges;
(c)
Amend the Criminal Procedure Code to allow a full retrial in criminal
proceedings conducted in absentia, including after a verdict has been delivered, upon
the request of the accused who has surrendered or has been detained by the Ukrainian
authorities;
To the State Bureau of Investigation:
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