CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 5 avril 2005

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margin-bottom:0pt; text-align:right; page-break-inside:avoid } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sB343B0AA { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#000000 } .sECC8F45 { width:24.18pt; display:inline-block }     SECOND SECTION     CASE OF NEVMERZHITSKY v. UKRAINE     (Application no. 54825/00)     JUDGMENT     STRASBOURG     5   April 2005       FINAL     12/10/2005       This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Nevmerzhitsky v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Mr   J.-P. Costa , President ,   Mr   A.B. Baka ,   Mr   I. Cabral Barreto ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Ms   A. Mularoni ,   Ms   D. Jočienė, judges , and Mrs S. Dollé , Section Registrar , Having deliberated in private on 15 March 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 54825/00) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Yevgen Ivanovych Nevmerzhitsky (“the applicant”), on 21   June 1999. 2.     The Ukrainian Government (“the Government”) were represented by their Agents, Ms Valeria Lutkovska, succeeded by Ms Zoryana Bortnovska. 3.     The applicant alleged, in particular, that the length of his detention had been unreasonable and that his detention pending trial had been unlawful (Article   5   §§   1(c) and 3 of the Convention). He also complained under Article   3 of the Convention that he had been subjected to inhuman and degrading treatment or punishment. 4.     The application was allocated to the Second Section of the Court (Rule   52 §   1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5.     By a decision of 25 November 2003, the Court declared the application partly admissible. 6.     The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ). The parties replied in writing to each other's observations. 7.     On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1). THE FACTS 8.     The applicant, Mr Evgen Nevmerzhitsky, is a Ukrainian national, who was born in Kyiv in 1970 and currently resides there. He was formerly the manager of a branch of the Poltava Bank in Kyiv. The applicant was represented by Mr Portyanik, a lawyer practising in Kyiv. I.     THE CIRCUMSTANCES OF THE CASE 9.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     The criminal proceedings brought against the applicant 10.     On 28 September 1995 police officers seized 184,761 US dollars (USD) that had been stored by the applicant on the premises of the Poltava Bank in readiness for their sale to a customer, Y.G.L. 11.     On 18 October 1995 the Investigative Division of the main department of the Ministry of Internal Affairs of Ukraine in Kyiv (“the Investigative Division”) began a criminal investigation into allegations of unlawful currency transactions that had allegedly been committed by the applicant. 12.     On 8 April 1997 the Investigative Department initiated criminal proceedings in respect of the involvement of the applicant and other suspects in the case. On the same date an investigator from the division decided that the applicant should be detained as a suspect pending a decision concerning the appropriate preventive measure. He was accordingly placed in custody that day. 13.     On 14 April 1997 an investigator from the Investigative Division charged the applicant with, inter alia, engaging in unlawful currency transactions (Article 80 § 2 of the Ukrainian Criminal Code 1960   – hereafter the “UCC”), theft of substantial amounts of currency (Article 86-1 of the UCC) and tax evasion (Article 148-5 § 2 of the UCC). 14.     On 8 December 1997 and 2 March 1998 the applicant was additionally charged with abuse of power by an official (Articles   165 §   2 and 166 § 3 of the UCC) and fraud and forgery committed by an official (Articles 172 § 2 and 194 §§ 1 and 3 of the UCC). 15.     Between 15 January and 14 April 1998 the applicant lodged applications with the Investigative Department for a medical examination and challenged the appointment of the investigator. On 7   April 1998 the General Prosecution Service of Ukraine instructed the investigator to arrange for the applicant's medical examination. The doctors who examined the applicant recommended that he should receive medical treatment in a facility run by the Ministry of Health due to various diseases that he suffered from, including the skin infections of scabies and eczema. 16.     On 13 March 1998 the investigator charged the applicant with offences under Articles 80 § 2, 86-1, 148-5 § 2, 166 § 3, 170 § 1, 172 § 2 and 194 § 3 of the UCC. 17.     On 8 September 1998 the investigation into the case was completed and the accused, including the applicant, were allowed to inspect the case-file. On 9 August 1999 the accused finished their inspection. 18.     On 9 August 1999 the criminal case-file was sent to the Kyiv Prosecution Service for approval of the indictment. 19.     On 13 August 1999 the prosecution service transmitted the case to the Kyiv City Court (the “City Court”). 20.     On 27 August 1999 the Moskovsky District Court of Kyiv rejected as unsubstantiated the applicant's complaint against the investigator of the Investigative Department, in which he had claimed that the investigator had acted unlawfully and requested that criminal proceedings be instituted against him for abuse of power. 21.     On 1 November 1999 the City Court remitted the case to the prosecution service for an additional investigation ( додаткове розслідування ). On 5 November 1999 it lodged a separate application ( окреме подання ) for an order setting aside the City Court's ruling. On 16   December 1999 the Supreme Court of Ukraine granted the application in part. Although it held that the case should be remitted for an additional investigation, it specified that certain matters did not have to be investigated further since the information previously obtained was sufficient. 22.     On 5 January 2000 the prosecution service finished a supplementary investigation into the case and the applicant was allowed to inspect the file. 23.     On 7 February 2000 the additional investigation was completed and the applicant was allowed to familiarise himself with the material in the case-file. 24.     On 22 February 2000 the preliminary investigation was reopened in order to conduct additional investigative acts. 25.     On 30 October 2000 the City Court ruled that the investigation into the charges of unlawful currency transactions should be dropped as criminal liability for unlawful currency transactions had been abolished and Article   80 of the UCC repealed. 26.     On 19   February 2001 the City Court convicted the applicant of repeated financial fraud, acts in preparation of financial fraud, forgery committed by an official, aggravated forgery and abuse of power. It sentenced him to five years and six months' imprisonment, and ordered the confiscation of all his personal property. It acquitted him of the offences of aiding and abetting the concealment of the proceeds of currency sales, tax evasion and aggravated fictitious trading. On the basis of the Amnesty Law of 11   May 2000, and because the applicant had already been detained for two years, ten months and fifteen days, the City Court decided to exempt him from serving the sentence. None of the parties appealed to the Supreme Court. B.     The detention of the applicant 27.     On 8 April 1997 an investigator of the Investigative Division decided that the applicant should be temporarily detained as a suspect ( затриманий в якості підозрюваного ) in accordance with Article   115 of the Code of Criminal Procedure (“the CCP”). He was accordingly placed in custody that day. 28.     On 11   April 1997 the Prosecutor of Kyiv sanctioned a warrant issued by the investigator authorising the applicant's arrest ( санкцію на арешт ) as a preventive measure pending trial (Article 155 of the CCP). 29.     On 12 May 1997 the applicant applied to the Moskovsky District Court of Kyiv for orders to quash the warrant and release him. On 28   May 1997 the District Court rejected the applicant's claims as unsubstantiated. It also held that the applicant's detention was lawful. 30.     From 8 April 1997 until 22 February 2000 the applicant was detained in the Temporary Investigative Isolation Unit of the Kyiv Region (SIZO No.   1 of the Kyiv Region). 31.     The duration of the investigation and the applicant's detention were extended on successive occasions: to six months on 29   May 1997 by the Prosecutor of Kyiv, to nine months on 1 October 1997 by the Deputy Prosecutor General of Ukraine, to twelve months on 18   December 1997 by the Deputy Prosecutor General of Ukraine and to fifteen months on 28   March 1998 by the Acting Prosecutor General of Ukraine. 32.     On 12 April 1998 the investigator informed the applicant that the preventive measure of detention could be replaced by release on bail. The Prosecutor of Kyiv informed the applicant by a letter of 20   July 1998 that bail had been fixed in the sum of 232,716 Ukrainian hryvnas (UAH). 33.     On 22 July 1998 that amount was deposited in the account of the Main Department of the Ministry of Internal Affairs in Kyiv by Ukrinbank (the surety and the applicant's former employer). On 19   August 1998 the Department returned the sum and refused to release the applicant on bail. 34.     On 30 June 1998 the Acting Prosecutor General of Ukraine extended the period of the investigation and the applicant's detention for another three months (until 30 September 1998), bringing the total period to eighteen months. 35.     On 1 November 1999 the City Court refused to change the preventive measure, requiring the applicant to remain in custody. On 16   December 1999 the Supreme Court of Ukraine upheld that decision. 36.     The applicant was detained during the prosecution's further investigation from 1 November 1999 onwards. 37.     On 22 February 2000, owing to the expiry of the maximum statutory period of detention, the Kyiv Regional Prosecutor decided to release the applicant on his undertaking not to abscond. The applicant was released on 23   February 2000. C.     Hunger strike, force-feeding and medical treatment of the applicant 38.     The applicant went on hunger strike on 13 April 1998, consuming only water. On 17 April 1998 the applicant's medical condition was examined and, following an acetone analysis of his urine on 20   April 1998, he was subjected to force-feeding as of 23 April 1998. The applicant suspended his hunger strike on 14 July 1998, only to resume it again in October 1998. 39.     On 1 December 1999 the doctor of the detention facility issued a statement that the applicant was receiving medical treatment and, because of his continuing hunger strike, was being force-fed. 40.     The Government mentioned that between 27 May 1997 and 7   February 2000 the applicant was examined by doctors on sixty-one occasions. However, they made no reference to any medical examinations of the applicant in the period from 5 August 1998 to 10 January 2000 (see paragraph 50 below). 41.     On 5 February 1998 the doctor of the detention centre diagnosed the applicant as having allergic dermatitis ( алергійний дерматит ). 42.     On 8   April 1998 the doctor of the detention centre, after examining the applicant, diagnosed him as also suffering from streptococcal impetigo ( стрептодермія ) and chronic cholecystitis ( хронічний холецистит ). 43.     On 8 May 1998 the forensic medical examination No.   58 carried out by the Kyiv City Medical Examinations Bureau concluded that the applicant suffered from microbic eczema, chronic cholecystitis and neurocirculatory dystonia. It recommended that the applicant undergo specialised medical treatment for eczema as an inpatient. 44.     On 2 June 1998 the doctor of the Central Hospital of Kyiv, Dr   Glukhenky, found that the applicant had contracted disseminated microbic eczema ( розповсюджена мікробна екзема ). He also recommended that the applicant undergo medical treatment as an inpatient. 45.     On 13 July 1998 the Deputy Head of the Investigative Department requested that the applicant be admitted to the Kyiv Specialist Dermato-Venerological Hospital for further treatment of his skin diseases as from 14   July 1998. 46.     On 14 July 1998 the applicant was taken to the hospital and, after his preliminary medical examination there, he was diagnosed as suffering from scabies ( чесотка ) and pyodermatitis ( піодерматит ). The hospital recommended that the applicant be returned to SIZO No. 1 for further medical treatment for scabies. 47.     On 20 July 1998 the forensic medical examination No. 88 carried out by the Kyiv City Medical Examinations Bureau concluded that the applicant had suffered from disseminated microbic eczema from 8 May to 2 June 1998. It also found that the applicant suffered from scabies and that this disease could be treated in SIZO No. 1 if there were no appropriate conditions for his treatment as an inpatient. On the same date the investigator of the Investigative Division rejected as unsubstantiated the applicant's request for medical treatment as an inpatient. 48.     The applicant underwent medical treatment for scabies on 31   July   1998 in the medical unit of the detention centre. 49.     The applicant continued his hunger strike between 10   January and 7   February 2000. During this period he was examined by a doctor on eighteen   occasions. 50.     According to the applicant, his last hunger strike lasted from 5   October 1998 to 23 February 2000. In accordance with the timetable of medical examinations provided by the Government, no medical examinations of the applicant were performed between 5   August   1998 and 10 January 2000 (see paragraph 40 above). 51.     Following his release on 23 February 2000, the applicant was admitted to Kyiv City Hospital from 24 February until 17 March 2000. He subsequently continued to receive medical treatment under the general supervision of a psychiatrist. D.     Complaints to the Constitutional Court of Ukraine 52.     On 2 February 2000 the applicant's sister, on behalf of the applicant, lodged complaints with the Constitutional Court of Ukraine seeking to establish that it was unconstitutional to hold the applicant in custody after the maximum statutory term of detention had expired. She also petitioned the Constitutional Court for a ruling that Article 156 of the CCP, which allowed suspects to be detained while the case was being investigated, was unconstitutional. On 25 February 2000 the Registrar of the Constitutional Court rejected his complaints, as the court had no jurisdiction to consider them. II.     RELEVANT DOMESTIC LAW A.     Constitution of 26 June 1996 53.     The relevant provisions of the Constitution read as follows: Article 29 “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law.” Article 55 “Human and citizens' rights and freedoms are protected by the court. Everyone is guaranteed the right to challenge in a court the decisions, actions or omissions of bodies exercising State power, local self-governing bodies, officials or officers. ...After exhausting all domestic legal remedies, everyone has a right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant. Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” Chapter XV Transitional Provisions “13.     The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an inspection and search of a person's home and other property, shall be retained for five years after the entry into force of the present Constitution.” B.     The Code of Criminal Procedure, 1960 54.     The relevant provisions of the CCP read as follows: Article 148 (with amendments of 21 June 2001) Purpose and grounds for the application of preventive measures “Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent his attempts to abscond from an inquiry, investigation or the court, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the execution of procedural decisions. Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from investigation and the court, or if he fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities. If there are insufficient grounds for the imposition of preventive measures, the suspect, accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer, investigator, prosecutor or the court, and shall also undertake to notify them of any change in his place of residence. If a preventive measure is applicable to a suspect, he shall be charged within ten days of the imposition of the measure. In the event that the indictment is not issued within that time, the preventive measure shall be annulled.” Article 149 (with amendments of 21 June 2001) Preventive measures “The preventive measures are as follows: (1)     a written undertaking not to abscond; (2)     a personal surety; (3)     the surety of a public organisation or labour collective; (3-1)     bail; (4)     remand in custody; (5)     supervision by the command of a military unit. As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.” Article 150 (with amendments of 21 June 2001) Circumstances that shall be taken into account in choosing a preventive measure “In resolving the issue of imposing a preventive measure, in addition to the circumstances specified in Article 148 of this Code, such circumstances as the gravity of the alleged crime, the person's age, state of health, family and financial status, type of activity, place of residence and other circumstances relating to the person, shall be taken into consideration.” Article 156 (in force at the material time) The terms for holding in custody The terms for remand in custody during the investigation of criminal offences shall not be more than two months. These terms can be extended to four months by district, city or military prosecutors, prosecutors of the fleet or command garrison, or prosecutors of the same rank, if it is not possible to terminate the criminal investigation, and in the absence of any grounds to change the preventive measure. Further extension of this term to six months from the moment of arrest shall only be effected if the case is exceptionally complex, by the Prosecutor of the Republic of the Crimea, regional prosecutors, Kyiv prosecutors, military prosecutors of the district or fleet, or prosecutors equal to them in rank. Further periods of remand in custody can be extended for up to one year by the Deputy Prosecutor General of Ukraine, and up to eighteen months by the General Prosecutor. After that, no further extensions of detention on remand are allowed. The accused must then be immediately released. If it is impossible to terminate the investigation within these remand periods and there are no grounds to change the preventive measure, the General Prosecutor or his Deputy shall be entitled to remit the case to the court in that part which relates to accusations which could be proved. In relation to the incomplete investigation, the case shall be divided into separate proceedings and terminated in accordance with the general rules. The materials of the terminated part of the criminal case shall be provided to the accused and his representative for examination not later than one month before the expiry of the remand period, established by paragraph 2 of this Article. The time taken by the accused and his representative to familiarise themselves with the materials in the case shall not be taken into account in calculating the overall term of remand in custody. If the court remits the case for a new investigation, and where the term of remand in custody has ended, and an alternative preventive measure cannot be applied in the circumstances of the case, the prolongation of the detention on remand shall be effected by the prosecutor, whose task is to supervise the lawfulness of the pre-trial investigation in the case, within one month from the moment he receives the case-file. Further prolongation of the detention, before the case is remitted to the court, shall be governed by paragraphs 1, 2, and 6 of this Article.” Article 156 (with amendments of 21 June 2001) Periods of detention during an investigation “Detention during pre-trial investigations shall not exceed two months. In cases in which it is impossible for the investigation of the case to be completed within the period provided for by Part One of this Article and there are no grounds for discontinuing the preventive measure or substituting a less restrictive measure, the period of detention may be extended: (1)     to four months - on an application approved by the prosecutor who supervises compliance with the laws by bodies of inquiry and pre-trial investigation or by the prosecutor who, or a judge of the court which, issued the order for the application of the preventive measure; (2)     to nine months - in cases of serious and especially serious crimes, on an application approved by the Deputy Prosecutor General of Ukraine, the Prosecutor of the Autonomous Republic of Crimea, the prosecutor of the regions, the prosecutor of the cities of Kyiv and Sevastopol and the prosecutors of equal rank, or submitted by the same prosecutor for consideration to a judge of an appellate court; (3)     to eighteen months - in particularly complex cases involving especially serious crimes, on an application by the Prosecutor General of Ukraine or his Deputy, or submitted by the same prosecutor for consideration to a judge of the Supreme Court of Ukraine; In every case in which it is impossible to complete the investigation in full within the periods specified in Parts One or Two of this Article, the prosecutor supervising compliance with the law during the investigation into the case shall have the right to consent to the charge for which there is evidence being referred to the court. In such an event, the part of the case concerning uninvestigated crimes or criminal offences shall, in accordance with the requirements of Article 26 of this Code, be severed into a separate set of proceedings and completed under the general procedure. The period of detention during the investigation shall be calculated from the moment the detention is ordered and, if the detention was preceded by time spent in police custody, from the moment of arrest. The period of detention shall include any time spent by the person concerned in undergoing expert examination as an in-patient in a psychiatric medical institution of any type. In the event of repeated detention orders being made against a person in the same case, or in a case joined to it or severed from it, or of new charges being brought, previous periods of detention shall be taken into account when calculating the length of the detention. The period of detention during pre-trial investigations shall expire on the day the court receives the case-file; however, the time it takes for the accused and his representatives to familiarise themselves with the materials in the criminal case-file shall not be included in the calculation of the period for which the accused has been detained as a preventive measure. In the event that the case is withdrawn from the court by a prosecutor on the basis of Article 232 of this Code, time shall start to run again on the day the case is received by the prosecutor. In the event that the case is returned by the court to the Prosecutor for a supplementary investigation the period of detention shall be calculated from the moment the case is received by the Prosecutor and shall not exceed two months. The period specified shall be further extended by taking into account the time the accused was held in detention before the referral of the case to the court, in accordance with the procedure and within the time-limit prescribed by Part Two of this Article. Save where the period has been extended pursuant to the procedure established by this Code, in the event of the expiry of the maximum period for detention as a preventive measure allowed by Parts One and Two of this Article, the body of inquiry, the investigator, or the prosecutor shall be obliged to release the person from custody without delay. Governors of pre-trial detention centres shall promptly release from custody any accused in respect of whom a court order extending the period of detention has not been received by the time the period of detention allowed by Parts One, Two and Six of this Article expires. They shall notify the person or body before whom the case is pending and the prosecutor supervising the investigation (Article 156 in the wording of Law No. 1960-12 of 10 December 1991, as amended by Laws Nos. 2857-12 of 15   December 1992, and 3351-12 of 30 June 1993; in the wording of Law No. 2533-III of 21   June 2001 – which entered into force on 29 June 2001).” Article 218 (in force at the material time) Announcing to the accused the termination of the investigation in the case and allowing him to inspect the materials in the case file “After deciding that the evidence collected in the case is sufficient for an indictment, and after complying with the terms of Article 217 of this Code (familiarisation of the victim, civil plaintiff and civil respondent with the materials in the case file), the investigator is obliged to announce to the accused that the investigation in his case has ended and that he has a right to familiarise himself with all of the materials in the case file personally and/or with the assistance of an advocate, and that he can lodge a motion to initiate an additional preliminary investigation. The investigator is obliged to explain to the accused his right to lodge petition for his case at first instance to be heard by a single judge or by a court composed of three judges. If the accused has not shown any interest in familiarising himself with the materials of the case-file with the participation of the representative, he shall be personally provided with all of the materials in the case file (for familiarisation). In the course of this familiarisation process, the accused has the right to make extracts (to copy in writing) and to lodge motions. The investigator must allow all accused persons, even if there are several in one case, to familiarise themselves with all the case-file materials. The announcement of the termination of the criminal investigation and the authorisation for the accused to familiarise himself with the case-file shall be mentioned in the verbatim record. The accused and his representative shall not be limited in the time which they require to familiarise themselves with the materials in the case file. However, if the accused and his representative intentionally delay this process, the investigator has the right, by it's a reasoned resolution, to fix a deadline for the accused to complete the familiarisation exercise. This resolution shall be approved by the prosecutor.” Article 236-3 (with amendments of 21 June 2001) Appeal against the prosecutor's arrest warrant “The detainee, his defender or legal representative may appeal against the prosecutor's arrest warrant to the relevant district (city) court... The appeal may be lodged directly with the court or through the administration of the pre-trial detention centre, which must send the appeal to the relevant court within twenty-four hours of its receipt.” (Article 236-3 was excluded from the CCP on the basis of the Code of Criminal Procedure (Amendments) Act of 21 June 2001.) C.     Resolution of the Plenary Supreme Court of 30 September 1994 on certain issues emerging in the course of the application by the courts of the legislation providing for an appeal against the prosecutor's arrest warrant 55.     The relevant provisions of the Resolution of the Plenary Supreme Court of Ukraine read as follows: “... in accordance with Article 236-3 of the Code of Criminal Procedure, the subject of appeal shall only be the arrest warrant issued by the prosecutor for detention of the suspect or accused, and not the decision of the investigator or the body of inquiry concerning the applicable preventive measure of taking into custody; nor the decision of the court (judge) to detain the defendant.” (This resolution was annulled on the basis of the new Resolution of the Plenary Supreme Court of Ukraine of 25 April 2003 on the courts' practice of applying the preventive measure of detention and the prolongation of detention at the stages of the inquiry and pre-trial investigation.) D.     Reservation contained in the instrument of ratification deposited on 11 September 1997 (period covering 11 September 1997 – 28   June 2001) 56.     The relevant extracts from the reservation of Ukraine provide as follows: “...2.     The provisions of Article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene paragraph 13 of Chapter XV of the Transitional Provisions of the Constitution of Ukraine and Articles 106 and 157 of the Code of Criminal Procedure of Ukraine concerning the detention of a person and the issue of an arrest warrant by a public prosecutor. Such reservations shall be in force until appropriate amendments to the Code of Criminal Procedure of Ukraine are introduced or until the adoption of the new Code of Criminal Procedure of Ukraine, but not later than 28 June 2001... The provisions of Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene Articles 48, 49, 50 and 51 of the Disciplinary Statute of the Armed Forces of Ukraine concerning the imposition of arrest as a disciplinary sanction.” E.     Appendix to the reservation handed to the Secretary General at the time of depositing the instrument of ratification on 11   September 1997 57.     The relevant extracts from the Transitional Provisions of the Constitution of Ukraine provide as follows: “13.     The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an inspection and search of a person's home and other property, shall be retained for five years after the entry into force of the present Constitution.” 58.     The relevant extracts from Article 106 of the CCP that regulate detention by a body of inquiry of a person suspected of committing an offence provide as follows: “A body of inquiry shall be entitled to detain a person suspected of committing an offence for which a custodial penalty may be imposed, subject to the existence of one of the following grounds: 1.     if the person is discovered whilst committing an offence or immediately after committing one; 2.     if eye-witnesses, including victims, directly identify this person as the one who committed the offence; 3.     if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home. If there are other data which constitute grounds for suspecting the person of committing an offence, he may be detained only if he attempts to escape, or if he has no permanent place of residence, or if the identity of the suspect has not been established. For each case of detention of a person suspected of committing an offence, the body of inquiry shall be required to draw up a record setting out the grounds, the reasons, the day, time, year and month, the place of detention, the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before being questioned for the first time, in accordance with the procedure provided for in Part 2 of Article 21 of the present Code. The body of inquiry shall also be required to notify the public prosecutor of the detention in writing within twenty-four hours and, on his request, give him the documents constituting the grounds for detention. The record of detention shall be signed by the person who drew it up and by the detained person. Within forty-eight hours of receipt of the notification of detention, the public prosecutor shall authorise the person detained to be taken into custody or order his release. The body of inquiry shall inform the suspected person's family of his detention if his place of residence is known.” 59.     The relevant extracts from Article 157 of the CCP, which set out the specific duties of a public prosecutor when issuing a warrant for arrest, provide as follows: “The public prosecutor shall issue a warrant for the arrest of a suspect or accused subject to the existence of the grounds prescribed by law. When deciding whether to issue a warrant for arrest, the public prosecutor shall be required to study conscientiously all the relevant documents and, where necessary, question the suspect or accused personally. In the case of a suspect or accused who has not attained the age of majority, such questioning shall be mandatory. The right to issue a warrant for the arrest of a person shall be vested in the Prosecutor General of Ukraine, the public prosecutors of the Republic of the Crimea, the regional prosecutors, the prosecutors of the cities of Kyiv and Sevastopol, and other equal-ranking prosecutors. The same right shall also be vested in the deputy public prosecutors of towns and districts with a population exceeding 150,000, unless otherwise stipulated in a special order of the Prosecutor General of Ukraine.” F.     Observance of human rights in preliminary detention facilities. Extracts from the reports of the Commissioner for Human Rights of the Parliament of Ukraine of 2001 (the first annual report) and 2002 (the second annual report) 60.     The relevant extracts from Chapters 4.4-4.5 of the first annual report provide as follows: “...     The situation in investigation wards is perhaps the worst, [due to] their overcrowding and abnormal conditions of custody. The number of suspects in the cells of investigation wards far exceeds normal sanitary standards. By late December 1999 Ukraine's investigation wards had available space for 32,800 detainees, but in reality held 44,700. The gravest situation was registered in the Autonomous Republic of Crimea where 1,439 detainees were in custody without sufficient space; in Donetsk and Kharkiv the same circumstances affected 1,300 detainees (in each city), 1,135 in Kryviy Rig, 1,000 in Luhansk, and 714 in Kyiv and Odessa (each). Thousands of detainees do not have personal bunks and are forced to take it in turns to sleep. This has been causing conflicts that are accompanied by injuries, physical reprisals, violence and other illegal actions. ...     The unsanitary conditions in pre-trial detention facilities contribute to the spread of epidemic and parasitic diseases, such as tuberculosis, pediculosis and dysentery. In 1999 they caused the death of 326 detainees, or twice as many as in 1998. Inadequate nutrition is the cause of chronic gastro-intestinal disturbances and dystrophy. In the pre-trial detention facilities the regime of detention for suspects whose guilt has yet to be established is much more severe than in penitentiary institutions. In most cases the suspects are denied the opportunity to meet with relatives, to work and provide assistance to families; they are actually isolated from the outside world and have no access to the daily press and other mass media. ...     The inspections of the Commissioner proved that on average people are held [in detention] for six months while courts delay processing their cases for unjustifiably long periods. Every year the statutory time for considering criminal cases is violated in relation to 10,000 people. Of the persons who are detained in custody to date 46% (or 21,000) are detained under the courts' responsibility; in some detention centres this category of detainees exceeds 90%, although 10 years ago they accounted for only 18-20%. ... Above everything else, this is caused by the unjustifiably widespread practice of pre-trial detention on formal grounds. Of the 112,600 arrested persons 15,000 (13%) were released from investigation wards in 1998, and of these every seventh arrested person was given a non-custodial sentence. Under the transitional provisions of the Constitution, there still exists the procedure of arresting and taking people into custody on the basis of the sanction issued by the public prosecutor. The introduction of judicial control over detention and prolongation of the period of custody has had no practical impact... Some legislation which is inconsistent with the provisions of the Constitution and international human-rights standards sets unjustifiably long terms of pre-trial detention . Owing to strictly ministerial interests, these terms were increased to a year and a half , from which is excluded the time taken by detainees and their lawyers to familiarise themselves with the case-file. The lack of an organised system of pre-trial investigation infringes the terms of detention of tens of thousands of persons. The legislation in force does not establish any restrictions whatsoever as to the maximum period of detention once the case is referred for consideration on the merits. For this reason defendants have to wait for months and sometimes years for a hearing or completion of the judicial examination.” 61.     The second annual report of 2002 confirmed the first as regards the gross violations of the human rights of the detainees because of their c