Boryslav Bereza and Igor Lutsenko proposed to introduce amendments to the “Savchenko’s law”. The draft law “On amendments to the Criminal Code of Ukraine (regarding improvement of the procedure for counting by the court of the term of pre-trial detention in the term of sentence)”, No. 4032, which was registered by these people’s deputies, proposes to exclude application of the “Savchenko’s law” to the persons who serve their sentence (or are suspected) of committing grave and especially grave crimes.
Iryna Kuzina, attorney at law, Head of Kharkiv office of Ilyashev & Partners Law Firm, analyzed the next proposed amendments for the Yurydychna Praktyka:
“Adoption of draft law No. 4032 will aggravate illogic of the “Savchenko’s law”, one might say, will create a paradox “at a quadruple rate”.
As I said earlier, by adoption of the “Savchenko’s law” our government recognized the pre-trial detention conditions inappropriate, i.e. recognized violation by it of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms in relation to almost every person in custody until the court verdict. This law (according to the explanatory note to the draft law) was intended to reduce such violation in time. In my opinion, these measures are quite insufficient for observation of Article 3 of the Convention by Ukraine.
Now, by adoption of the draft law No. 4032 the state seems to be saying: “Well, the suspects and the accused of grave and especially grave crimes may put up with inhuman conditions”. It was before the court brought in the verdict of guilty. Does it comply with the Convention and case law of the European Court? It does not comply even more.
Why the criterion of gravity of alleged crime was chosen? For example, the legislation on amnesty, in particular, the Law of Ukraine “On amnesty in Ukraine” establishes more individualized criteria – considers repeated relapse into crime, punitive measure, elements of crime especially dangerous for the society, etc.
Will the draft law No. 4032 reach the goal to decrease overpopulation of the pre-trial detention facility as stated in the explanatory note? Most of the detainees are the accused who were previously convicted for repeated robberies (Article 186(2)), theft with penetration (Article 185(3)) and robberies (Article 187). Now they will not be subject to recount “day for two”.
Thus, who will the draft law No. 4032 apply to if detention is not frequently applied to the suspects of crimes of small and medium gravity?
Apparently, the suspects who according to Article 176(5) of the Code of Criminal Procedure of Ukraine may be subjected only to detention without bail – Article 110(1) (“Separatism”), Article110-2(1) (“Financing separatism”), Article 258-1(1) (“Involvement in acts of terrorism”), Article 258-2 (“Public calls to commit acts of terrorism”), Article 260(1) (“Creation and participation in the illegal paramilitary units”) – all these are crimes of medium gravity.
Strange incentives, do not you find?
Taking into account Article 5(4) of the Criminal Code of Ukraine on retroactive effect of a milder law, the draft law No. 4032 will actually work only for “newcomers” who were detained after its entry into force. It will be impossible to avoid miscarriages of justice”.