Ukraine: Reducing Pretrial Detention

Monitoring and Judicial Skills Building

Background

Pretrial prisons in Ukraine are chronically overcrowded, providing detainees with extremely restricted living space and virtually no activities. They are also fertile breeding grounds for communicable diseases. The Council of Europe’s Committee for the Prevention of Torture (CPT) has documented an “urgent need” for significant improvements in Ukraine’s pretrial facilities. [1] However, until both the numbers of pretrial detainees and the average length of time they spend in custody are reduced, Ukraine’s prisons department, the State Department for the Enforcement of Sentences, will find it difficult to bring about significant improvements in pretrial living conditions.

Like a sister initiative in Latvia, this project is designed to address the ”supply side” of the problem—that is, the process which first places persons in pretrial facilities and then determines whether, and for how long, they remain there.

One potentially useful instrument is a new Criminal Code providing for alternatives to detention, which entered into force in September 2001. In the same year the government transferred decision-making responsibility regarding restrictions on individual liberty—including the imposition of pretrial detention—from prosecutors to judges. However, the Ukrainian judiciary has neither the capacity nor the training to carry out its new role in conformity with international standards. Judges are not well-equipped to take pretrial decisions that would reduce either the use of detention or the average length of prison terms.

Exacerbating this problem, access to qualified lawyers during pretrial hearings is not guaranteed. Reportedly, less than half of all pretrial detainees in Ukraine are represented by legal counsel.

Pressure to alleviate the situation is low, in part because public knowledge about the conditions of detention in pretrial establishments is limited. In particular, there is little understanding of the wider social cost of failing to improve pretrial detention facilities, such as the fact that a high and growing rate of communicable diseases in prisons presents an ongoing public health risk for the larger community.

Objectives

The project aims to assist actors within the Ukrainian criminal justice system to reduce the number of people held in pretrial detention and shorten the average pretrial detention period.

Activities

International standards clearly outline factors which judicial authorities must take into consideration when deciding to impose or prolong pretrial detention. These include, whether there exists a danger of the accused absconding, interfering with the course of justice or committing a serious offence. Judges are additionally exhorted to adopt a truly individualized approach and to provide reasoned grounds for every decision to impose or prolong pretrial detention. [2]

A pilot study initiating the project is monitoring judicial decision-making in the city of Kharkiv in order to ascertain whether, and to what extent, judges are actually making decisions in conformity with these international standards. With a population of some 1.6 million people, Kharkiv is the second largest city in the country. The monitoring methodology was designed in detail in late 2002 and early 2003 in consultation with the project partners. An international expert with experience in pretrial detention provided advice and assistance during the design phase.

Using this methodology, baseline data was collected in Kharkiv in the first half of 2003. The results are being written up in the form of an audit of the conformity of judicial decision-making with relevant international standards. The audit will be widely disseminated through targeted seminars directed at relevant criminal justice professionals (judges, prosecutors and criminal investigators). In addition, a workshop toward the end of 2003 with key opinion-formers and decision-makers from the Supreme Court of Ukraine and the Ministry of Justice will explore the necessity for reforms and consider specific recommendations.

Partners

Centres for Free Legal Advice, Ukraine
Higher Council of Justice, Ukraine
Higher Qualification Commission of Judges of Ukraine
International Renaissance Foundation, Ukraine
Scientific Research Institute for the Prevention of Crime, Ukraine
State Judicial Administration, Ukraine
Supreme Court of Ukraine
Ukrainian Council of Judges
Ukrainian General Prosecutor’s Office
Ukrainian Ministry of Justice
Ukrainian Ministry of the Interior
Ukrainian Regional Bar Associations
Union of Advocates and Lawyers of Ukraine

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[1] Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 10 to 26 September 2000 (CPT/Inf (2002)23), published on 9 October 2002. [back]

[2] Council of Europe Committee of Ministers Recommendation No. R(80)11 on the Use of Custody Pending Trial. [back]

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