The Ukrainian Helsinki Human Rights Union filed a complaint with the Constitutional Court of Ukraine concerning the unconstitutional provision of part five of Article 176 of the Criminal Procedure Code of Ukraine.

With the adoption of amendments to the Constitution of Ukraine in the field of ​​justice and the Law of Ukraine “On the Constitutional Court of Ukraine”, citizens can use a new remedy – a constitutional complaint.

Using this mechanism, lawyers of UHHRU appealed to CCU with the request to recognize the unconstitutionality of the provision of part five of Article 176 of the Criminal Procedure Code of Ukraine. The disputed provision stipulates that persons who are suspected of committing crimes against the national security of Ukraine; crimes related to terrorist activities and some other crimes against public safety cannot be released from custody during pre-trial investigation and trial.

UHHRU believes that such a provision of the law of Ukraine violates the guarantees of the Constitution of Ukraine, namely the right to freedom, the rule of law principle, reduces the scope of existing human rights, leads to discrimination of individuals.

Deprivation of liberty is the most severe precautionary measure that can be imposed by a court only on the condition of the existence of risks established by law, as well as by the court’s assessment of the circumstances of the case. In all other cases, other, alternative, precautionary measures that are not related to the restriction of human freedom should be applied. Moreover, whenever a court reviews the lawfulness of a person’s detention, the court is obligated to review the existence of risks and, in the absence of them, should change the preventive measure to a milder one. So, the law provides for restriction of human freedom until his/her fault in committing a crime has been proved. However, the impugned provision is an exception to the general rule, and alternative preventive measures cannot be applied to some categories of persons. Moreover, according to Article 183 of the Criminal Procedure Code of Ukraine, the court should not even assess the existence of a risk when continuing a preventive measure. Thus, the application of the provisions of part five of Article 176 of CPC of Ukraine in practice by courts during the revision of the preventive measure creates the illusion of such a review, since in all circumstances, in accordance with the disputed article, such persons cannot be released from custody for the period of the proceedings. It should also be noted that persons who are suspected or accused of crimes of the same severity or even more serious than those mentioned in the article have guarantees to be released during the proceedings. This leads to a different attitude towards people who are in the same situations, which is unjustified.

In accordance with paragraph 3 Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, a person detained on legal grounds has the right to be released, when pending trial, under the condition of his/her guarantee of attendance at court hearings. In numerous judgments of the European Court of Human Rights, it has been established that the weight of the charge cannot in itself serve as justification for the lengthy pre-trial detention of a person. Although Article 29 of the Constitution of Ukraine does not provide guarantees for release during the proceedings, however, in accordance with Article 22 of the Constitution, the rights and freedoms defined in the Constitution are not exhaustive. Applying the constitutional principle of “friendly attitude to international law”, the Constitutional Court must interpret article 29 of the Constitution of Ukraine taking into account the Convention and case law of the European Court of Human Rights.

Vitalia Lebid, lawyer of the Strategic Litigations Center of UHHRU