A/HRC/45/CRP.9 V. Human Rights Concerns in Conflict-Related Criminal Proceedings before the Ukrainian Judiciary 34. OHCHR monitoring has shown widespread violations of defendants’ rights to a fair trial, to liberty and to effective legal remedy in conflict-related criminal cases. Some violations stem from flaws in the legislation, others from the application of the legislation in practice. A. Right to liberty (pending trial) 35. OHCHR found that the right to liberty was often violated due to arrests of suspects in conflict-related cases without a court warrant and the lack of courts’ effective control over pre-trial detention, contrary to international standards and national legislation. OHCHR documented 435 cases where arrests were not ordered by a court, where courts failed to address allegations of unlawful arrest, or where courts did not consider alternatives to pretrial detention, often resulting in defendants remaining in pre-trial custody for years. 1. Arrest 36. An arrest violates international human rights law if it is not in accordance with national legislation or is otherwise arbitrary. While States may determine the reasons and grounds for detention, they must ensure compliance with their legally prescribed procedures.34 The Criminal Procedure Code of Ukraine (“CPC”) permits arrest of a person with a court ruling (arrest warrant).35 As an exception, however, a person can be arrested without a court ruling if caught while committing a crime (in flagrante).36 37. OHCHR documented 420 cases where individuals were apprehended without a court warrant on the basis of having participated in armed groups months and sometimes years earlier.37 This was one of the most common violations identified by OHCHR, which persisted throughout the reporting period. According to the prosecution, such membership is a continuous crime and therefore the suspects were considered to be permanently ‘committing a crime’. However, OHCHR notes that such arrests without court authorisation are unlawful as they do not respond to an urgent need to prevent or stop the crime.38 38. OHCHR is not aware of any case where law enforcement authorities effectively investigated or prosecuted such unlawful arrests.39 In some documented cases, investigative judges rejected on dubious grounds complaints by the suspects regarding the unlawful arrest. 34 35 36 37 38 39 government armed groups could be actually international in character, the Office continues to examine allegations that the Russian Federation has exercised overall control over armed groups in eastern Ukraine. Available at www.icc-cpi.int/itemsDocuments/2017-PE-rep/2017-otp-rep-PEUkraine_ENG.pdf Human Rights Committee (HRC), General Comment No. 35, para. 23. Article 207. Article 208. See, e.g., Verdict of Slovianskyi town-district court of Donetsk region, 5 May 2017 (the accused was arrested under article 208 on 18 November 2016, while the verdict states he left the armed groups on 25 August 2015), available at reyestr.court.gov.ua/Review/66337035; Verdict of Krasnoarmiiskyi town-district court of Donetsk region, 27 December 2017 (the accused was arrested on 1 June 2017, while the verdict states she was a member of an armed group between July 2014 and spring 2015), available at reyestr.court.gov.ua/Review/86672166. The European Court of Human Rights (ECtHR) found the arrest without a court ruling for alleged actions more than one year before was contrary to article 5 para. 1 of the European Convention on Human Rights, as the Criminal Procedure Code allows for such practice “only as a response to an urgent need to prevent or stop a crime”. See ECtHR Judgment in the case of Korban v. Ukraine, 4 July 2019, paras. 146-147, available at hudoc.echr.coe.int/eng?i=001-194188. Criminal Code, article 371 punishes the unlawful arrest of a person by depriving the arresting individual of the right to hold certain positions or carry out certain activities for up to five years. 9