relevant amendments into the current legal regulations with the purpose of harmonizing
conditions of transportation by special means of transport with international standards
and with the view of analysis of transportation dynamics, ECHR case law and the CPT
recommendations.
Illegal apprehension without a ruling by investigating judge, or court
following a long period after commission of a crime
Results of monitoring MIA activities show that, despite requirements of the
criminal procedure legislation, law enforcement officials apprehend persons suspected
of crimes without proper court ruling. In addition, a large number of apprehensions
takes place after a long period (in certain cases several days or even months) after the
commission of an alleged crime, which constitutes gross violation of Article 208 of the
CPC of Ukraine. The said article provides an exhaustive list of cases when a competent
official can apprehend a person without a ruling by investigating judge or court.
According to article 208§1 of the CPC of Ukraine, a competent official has the
right to apprehend without investigating judge’s, court’s ruling only in two cases:
- If the person was caught while committing a criminal offence or making an
attempt to commit it;
- If immediately after the commission of crime, an eyewitness, including the
victim or totality of obvious signs on the body, cloth or the scene indicates
that this individual has just committed the crime.
If a person was not committed during commission of crime or immediately
after, the only legal ground for apprehension a persons suspected of committing a
crime is a ruling by investigating judge or court for the purposes of assigning a restraint
measure.
Therefore, actions of a competent official apprehending a person without a ruling
by investigating judge or court following long period after commission of crime can
be qualified as a crime against justice. In addition, the said actions can be viewed as
knowingly unlawful apprehension, taking into custody, arrest or detention constituting
a crime under Article 371 of the Criminal Code of Ukraine and providing for criminal
liability.
However, the inspection of the grounds for apprehension of persons in places of
detention revealed multiple instances of unlawful apprehensions, including those of
minors, without investigating judge’s, court’s ruling following long period (from
several hours to several months) after commission of crime.
For instance, on 10 July 2014, monitoring of observance of the rights of minors
apprehended by the bodies of internal affairs of Kyiv and Kyiv region took place. At
the time of inspection, juveniles were already in Kyiv remand prison. According to the
report on apprehension of H. (born 1997), he was apprehended on 09 April 2014 at
22:00 at Brovary city department of the Main MIA Directorate in Kyiv region. A ruling
of the investigating judge of Brovary city court of Kyiv region M. dated 12 April 2014
on assignment of a restraint measure states that the alleged crime occurred on 4 April
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