Weekly analysis for 17 – 23 July

Constitutional Court rules automatic detention extensions under martial law unconstitutional

Event

On July 18, 2024, the Constitutional Court of Ukraine delivered the Decision № 8-r(II)/2024 in the case on constitutional complaints, finding the provision of Part 6 of Article 615 of the Criminal Procedure Code of Ukraine inconsistent with the Constitution of Ukraine (the case on guarantees of judicial control over the observance of rights of persons in custody).

Namely, the provisions of the CPC of Ukraine: “in case of expiration of the court decision on detention and impossibility of hearing the issue of extension of the term of detention under the procedure established by this Code, the selected preventive measure in the form of detention is deemed extended for the period when the relevant issue will be heard by the court, not exceeding two months”. According to the Court, such a provision entails a violation of the constitutional right to judicial protection (Article 55(1) of the Constitution), in connection with a person’s right to liberty and security (Article 29(1) of the Constitution) and right of the accused to defense (Article 63(2) of the Constitution).

The Court postponed the expiration of provisions recognized unconstitutional; they will expire 3 months following the date of the Court’s decision. The Court also imposed an obligation on the Verkhovna Rada to bring the regulatory framework established by Part 6 of Article 615 of the CPC of Ukraine, which was declared unconstitutional, into compliance with the Constitution of Ukraine and this Decision.

CPLR’s assessment

In early March 2022, the Verkhovna Rada adopted the Law “On amending the Criminal Procedure Code of Ukraine and the Law of Ukraine “On Pre-trial Detention” concerning additional regulation of law enforcement activities under martial law” of March 3, 2022, № 2111-ІХ. Adoption of this law was a response to the urgent needs of the criminal justice system thar emerged due to the full-scale invasion of the armed forces of the russian federation on February 24, 2022. The Law significantly expanded Section IX-1 of the CPC of Ukraine, which deals with peculiarities of pre-trial investigation and court proceedings under martial law. In particular, Part 6 of Art. 615 of the CPC of Ukraine in version that was the subject of consideration by the CCU in this Decision was introduced. 

Simultaneously, Ukraine appealed to the Council of Europe for derogation of certain obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms, namely Article 5, the right to liberty and security of person. At the same time, as the Constitutional Court of Ukraine noted in its position stated in another decision: “although international law allows for derogation by the state of the right to liberty and security of person in time of war or other public danger (Article 15 of the Convention, Article 4 of the Covenant), it follows from its substance that fundamental judicial protection of a person from arbitrary detention must be ensured” (para. 1, subpara. 5.2, para. 5 of the reasoning part of the Decision of June 19, 2024 № 7-р (ІІ)/2024).

Indeed, Article 29 of the Constitution of Ukraine, which guarantees the right to liberty and security of person, contains a much higher standard than international treaties and does not provide for any exceptions or restrictions, even under martial law. Under martial law and states of emergency, the rights and freedoms provided for in Articles 24, 25, 27, 28, 29, 40, 47, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62, 63 may not be restricted (Article 64 of the Constitution). At the same time, the Constitutional Court believes that it is necessary to check the relevant mechanism for extending the preventive measure for compliance with the full scope of guarantees – that is, acceptability of interference with the right in light of the needs of martial law. As such, the Court notes that “the restriction of these human rights cannot be grounded in the needs related to martial law, but state interference in the area of their protection is possible under the condition of justification (proportionality) of the means chosen by the legislator, which preserve respect for the substance of human rights and do not contradict the provisions of the Constitution of Ukraine that guarantee their scope expressis verbis” (paragraph 8.3 of the Decision of July 18, 2024 8-r (II)/2024).

Thus, the issue of constitutionality of any restrictions of Article 29 of the Constitution of Ukraine, even under martial law, should be considered through the prism of the prohibition on narrowing the scope of human rights and freedoms guaranteed by Article 22 of the Constitution of Ukraine. However, there might be an acceptable (proportional) solution in between the restriction and the appropriate mechanism of proportional interference.

When talking about the practical aspect of the issue of [objective] “impossibility of a trial”, this was highly relevant for the period March-May 2022, in the context of dynamic changes in the occupied territories due to the offensive of the aggressor state’s troops, the lack of judiciary’s adaptation to the administration of justice in these conditions, and the need to redistribute the territorial jurisdiction of courts given the daily changing circumstances. Over time, these issues were resolved, and situations in which a person could not appear before an investigating judge to extend an exceptional measure of restraint (i.e., detention) became rare. The applicant’s constitutional complaint relates precisely to the events of March 2022, which reflects the peculiarities of that period.

In essence, provisions of Part 6 of Article 615 of the CPC of Ukraine, which exclude the possibility of holding a court hearing and a court’s verification of the reasonable grounds for extending the term of detention, despite being valid today, are barely applied by the courts, given awareness of the need to guarantee the right to liberty and security of person, which comes with a high standard of observance. Court practice [1] has also developed an approach whereby courts issue a ruling stating that the court cannot consider the motion [2] (in some cases, courts dismiss the prosecutor’s motion [3]) and extend the preventive measure for a period of 2 months. Thus, in light of the new ruling, it is difficult to research the practice of implementation of this institution by studying the USRCD.

Thus, there is no “automatic” extension, although cases of judicial abuse are not impossible. Therefore, the provision that is not being applied in practice should be removed from the Code and replaced with a mechanism for dealing with such situations that takes into account the procedural rights of the suspect or accused, on the one hand, and, on the other hand, allows to achieve the goals of justice, in particular, by ensuring participation in the pre-trial investigation and hearing of a criminal offense.

At the same time, it should be noted that cases when it is impossible to administer justice are quite different and it is difficult to create a general rule of conduct in such cases. Moreover, it should be consistent with other criteria provided in Section IX-1 of the CPC of Ukraine. For example, this includes Article 615(1)(2) of the CPC of Ukraine, which defines the grounds for a prosecutor to take over the function of judicial control in the event of “the absence of an objective possibility of the investigating judge to exercise the powers provided for by the relevant articles of the CPC of Ukraine” [4] .

At the same time, even if the criteria making it impossible to administer justice are defined, certain cases will continue to be assessed within the disciplinary procedure for judges (who hear the case) and prosecutors (who do not apply with a motion to extend the preventive measure with reference to the non-functioning of the court), where self-governing disciplinary bodies (the High Council of Justice and the Qualification and Disciplinary Commission of Prosecutors, respectively) will be able to list and categorize the types of cases that do or do not fall under this rule.

Regarding the way to implement Decision №8-р(ІІ)/2024, the Constitutional Court imposed an obligation on the Verkhovna Rada to bring the provision of Part 6 of Article 615 of the CPC of Ukraine, which was found unconstitutional, in line with the Constitution of Ukraine. In our opinion, this can be done in two ways: 1) either by specifying the concept of “impossibility of trial” under martial law by identifying certain typical cases or criteria for their determination, which objectively make it impossible for a court to administer justice under martial law; or 2) by rejecting such special procedure for extension of the preventive measure to avoid any doubts about constitutionality, given the high standard set forth by Article 29 of the Constitution of Ukraine.

[1] Hloviuk І., Drozdov О., Teteriatnyk H., Fomina Т., Rohalska V., Zavtur V. Special regime of pre-trial investigation and court proceedings under martial law: scientific and practical commentary on Section IX-1 of the Criminal Procedure Code of Ukraine. Edition 4. Electronic edition. Dnipro-Lviv-Odesa-Kharkiv, 2022. As of December 30, 2022. – P. 41.

[2] Decision of the Selidove City Court of Donetsk Region of 23.05.2022, case № 242/4386/21. URL: https://reyestr.court.gov.ua/Review/104433107

[3] Decision of the Novomoskovsk City District Court of Dnipropetrovsk Region of 30.05.2022, case № 183/2258/22. URL: https://reyestr.court.gov.ua/Review/104559304

[4] Krapvin Ye. Editorial: Vesting the function of judicial control with the prosecutor: how is the “lack of objective possibility” of its exercise justified? / JustTalk, 13.04.2023 // URL: https://justtalk.com.ua/post/editorial-pokladennya-funktsii-sudovogo-kontrolyu-na-prokurora-yak-obgruntovuetsya-vidsutnist-obektivnoi-mozhlivosti-jogo-zdijsnennya