Provisional arrest

Ukraine

Code of Criminal Procedure of Ukraine 2012 (2015)

Section II

INSTITUTING CRIMINAL PROCEEDINGS, INQUIRY, AND PRE-TRIAL INVESTIGATION

Chapter 10

INQUIRY

Article 106. Apprehension of the suspect by inquiry agency

Inquiry agency may apprehend a person suspected of having committed a crime for which confinement can be imposed only if one of the following grounds is present:
1) a person has been caught during the commission of crime or immediately after it has been committed;
2) eyewitnesses, including victims, expressly state that the given person is the perpetrator of crime;
3) obvious traces of crime have been found at the person concerned or his/her clothes, in his/her home.

With other particulars giving grounds for suspicion of the commission of crime present, the person concerned may be apprehended only if this person tried to escape or if he/she does not have a place of permanent residence, or if the personality of the suspect has not been established.

Inquiry agency is required to draw up a record of every apprehension, such record stating grounds, motives, date, hour, year, month, place of apprehension, explanations of the apprehended person, time when the record of explanation to the suspect, as prescribed in paragraph 2 of Article 21 of the present Code, of his/her right to have a visit of a defense counsel upon apprehension was drawn up.

The record is signed by the officer who drew it up and the apprehended person.

A copy of the record with the list of rights and duties is immediately handed over to the apprehended person and sent to the prosecutor. Records which gave ground for the apprehension are also sent to the prosecutor upon request of the latter.

The inquiry agency promptly notifies apprehension of the persons suspected of having committed a crime to one of his/her relatives while apprehension of an officer who is on active list of an intelligence agency of Ukraine in his/her line of duty is also immediately reported to the appropriate intelligence agency.

Inquiry agency within seventy two hours after apprehension:
1) releases the apprehended person – if suspicion of having committed a crime has not been confirmed, time-limit established by law expired or apprehension was conducted contrary to the first and second paragraphs of the present Article;
2) releases the apprehended person and impose on him/her a measure of restraint other than custody;
3) brings the apprehended person to judge and requests the latter to impose a measure of restraint in the form of custody.

In case of challenging apprehension before court, the apprehended person’s complaint is immediately sent to court by the head of the place of custody pending trial. The judge considers such complaint concurrently with inquiry agency’s request to impose a measure of restraint. If complaint was filed after the measure of restraint has been imposed, it is considered by judge within three days after its receipt. If the request was not received or when the complaint was received after expiration of seventy two hours after the apprehension, the judge considers the complaint within five days from its receipt.

The complaint is considered in compliance with requirements set forth in Article 165-2 of the present Code. Following consideration of the complaint, the judge takes decisions on the legality of apprehension or satisfies the complaint and finds apprehension illegal. A copy of such decision is sent to the prosecutor, inquiry agency, the apprehended person, and the head of the place of custody pending trial.

Prosecutor, the person in whose respect the decision was taken or his/her defense counsel or legal representative may challenge judge’s decision by way of appeal within seven days from the day on which such decision has been taken. Filing the appeal does not affect execution of court’s decision.

The suspect may not be detained for more than seventy two hours.

If judge’s decision to place the apprehended person in custody or to release him/her does not reach the place of custody pending trial within time-limit prescribed by law, the head of the place of custody pending trial releases the apprehended person and draws up an appropriate record thereof and notifies the official or agency which conducted apprehension thereof.

Section II

INSTITUTING CRIMINAL PROCEEDINGS, INQUIRY, AND PRE-TRIAL INVESTIGATION

Chapter 13

MEASURES OF RESTRAINT

Article 155. Taking in custody

Taking in custody as a measure of restraint is imposed in cases related to crimes punishable with deprivation of liberty for more than three years. In exceptional cases, this measure of restraint may by ordered in cases related to crimes punishable with deprivation of liberty for less than three years.
(Paragraph 2 of Article 155 is omitted by Law No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001 ).
Persons in whose respect taking in custody is imposed as a measure of restraint are kept in places of detention pending trial, i.e. pre-trial detention centers. In some cases, these persons may be kept in places for apprehended persons.
Places of detention pending trial for servicemen in whose respect taking in custody is imposed as a measure of restraint shall be military detention facilities of the Military Justice Service of the Armed Forces of Ukraine or pre-trial detention centers. Servicemen are kept
in such centers or military detention facilities of the Military Justice Service of the Armed Forces of Ukraine upon investigator’s decision. In some cases, servicemen may be kept in places for apprehended persons.
In places for apprehended persons, those taken in custody may be kept for not more than three days. If delivery of imprisoned persons in pre-trial detention center or military detention facility of the Military Justice Service of the Armed Forces of Ukraine is impossible within this time limit because of the long distance or lack of appropriate roads, they may be kept in places for apprehended persons up to 10 days.
If taking in custody as a measure of restraint is imposed on the person who has committed a crime during serving his/her sentence in a penitentiary institution, such person may be kept in the disciplinary isolation ward or sweat cell of the penitentiary institution.
Procedure for preliminary imprisonment is prescribed by Law of Ukraine “On preliminary imprisonment” (3352-12) and the present Code.
(Article 155 as amended by virtue of the Decrees of the Presidium of the Verkhovna Rada of 10.09.62, No 117-VIII ( 117-08 ) of 30.08.71, No 1898-VIII ( 1898-08 ) of 23.07.73, No 3130-VIII ( 3130-08 ) of 14.10.74, No 1851-IX ( 1851-09 ) of 23.03.77, No 6834-X ( 6834-10 ) of 16.04.84, by Laws No 2468-XII ( 2468-12 ) of 17.06.92, No 2935-XII ( 2935-12 ) of 26.01.93, No 282/95-ВР ( 282/95-ВР ) of 11.07.95, No 210/98-ВР ( 210/98-ВР ) of 24.03.98, No 1945-III ( 1945-14 ) of 14.09.2000, No 2533-III
2533-14 ) of 21.06.2001 – effective from 29.06.2001, No 488-IV ( 488-15 ) of 06.02.2003, No 743-IV (743-15 ) of 15.05.2003, No 2377-IV ( 2377-15 ) of 20.01.2005 ).


Article 156. Custody periods

Custody at the stage of pre-trial investigation may not last more than two months. Whenever it is impossible to complete investigation of a case within time-limit prescribed in paragraph 1 of the present Article and there are no grounds for revocation or substitution of this measure of restraint for a lighter one, custody may be extended:
1) up to four months – upon motion agreed with the prosecutor who supervises legality of proceedings conducted by inquiry and pre-trial investigation agencies, or by such prosecutor himself/ herself or by the judge of the court which made the decision to impose the measure of restraint;
2) up to nine months – upon motion agreed with the Deputy Prosecutor General of Ukraine, prosecutor of the Autonomous Republic of Crimea, oblast, cities of Kyiv and Sevastopol and prosecutors assimilated to them, or by such prosecutor himself/ herself in cases related to crimes of grave and especially grave severity, by the justice of the Court of Appeals;
3) up to eighteen months – upon motion agreed with the Prosecutor - General of Ukraine, his/her deputy or by such prosecutor himself/ herself in very complicated cases related to crimes of grave and especially grave severity, by a justice of High Civil and Criminal Court of Ukraine.
In every case, when it is impossible to complete full investigation of the case within time-limits referred to in the first and second paragraphs of the present Article and if there are no grounds for the substitution of the measure of restraint, the prosecutor who observes legality of proceedings in the case concerned may give his/her consent to refer the case to court in terms of charges proved. If so, as long as crimes and episodes of criminal activities which have not been investigated are concerned, the case is subject to disjoinder and is conducted according to regular procedure under the requirements stipulated in Article 26 of this Code.
A custody period is computed since taking in custody or, if apprehension of a suspect preceded taking in custody, since apprehension. The time a person stays in a psychiatric institution for in-hospital expert examination is credited to custody period. Whenever a person is re-taken in custody in the same case, as well as in connection with the case which has been disjoined from, or joined to, his/her case, or if new charges have been brought, the custody period includes previous custody period.
Custody periods at the stage of pre-trial investigation terminate the day on which the court has received the case. Whenever the prosecutor withdraws the case from court under Article 232 of the present Code, duration of these periods is renewed starting the day on which the prosecutor has received the case.
Records of a criminal case in which investigation has been completed should be produced to the accused that is committed to custody and his/her defense counsel at least one month before the expiration of the maximum custody period specified in the second paragraph of the present Article.
If records of the criminal case were produced to the accused and his/her defense counsel in disrespect of the one month time-limit before the expiration of the custody period as prescribed in the second paragraph of the present Article, after its expiration, the accused is subject to be promptly released. In such a case, the accused and his/her defense counsel
are entitled to review records of the case.
If records of the criminal case were produced to the accused and his/her defense counsel within one month time-limit, before the expiration of the custody period, but this time was insufficient for reviewing records of the case, the said custody period may be extended by a judge of the Court of Appeals upon investigator’s motion as agreed with the Prosecutor General of Ukraine or his/her deputy, or upon motion of this prosecutor or his/her deputy. If several accused who are kept in custody are involved in the case, and if the time-limit referred to in the sixth paragraph of the present Article is insufficient for at least one of them for reviewing records of the case, the said motion may be introduced in respect of the accused or several accused who have already reviewed records of the case unless such measure of restraint as custody is necessary in their respect and unless grounds for
imposing another measure of restraint exist.
If the court reminds the case to the prosecutor for supplementary investigation, custody period of the accused is computed since the case has been received by the prosecutor and it may not exceed two months. The said period is extended further with consideration of the time the accused was kept in custody before the case was referred to court, according to the procedure and within the limits prescribed in the second paragraph of the present Article.
Whenever a custody period as a measure of restraint referred to in the first and second paragraphs of the present Article has expired, and if this period has not been extended as prescribed in the present Code, the inquiry agency, investigator, prosecutor is required to immediately release the person from custody.
The chief of the place of detention pending trial is required to promptly release from custody the accused if the detention facility has not received, as of the day of expiration of custody periods referred to in the first, second, and sixth paragraphs of the present Article, the judge’s decision on the extension of custody periods. In such a case, he forwards an appropriate notice to the official or agency conducting proceedings in the case and to the appropriate prosecutor who supervises the investigation.

(Article 156 as amended by virtue of the Decrees of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84, No 8595-XI ( 8595-11 ) of 29.12.89, as revised by Law
No 1960-XII ( 1960-12 ) of 10.12.91, as amended by Laws No 2857-XII ( 2857-12 ) of 15.12.92, No 3351-XII ( 3351-12 ) of 30.06.93; as revised by Law No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001; as amended by Law No 658-IV ( 658-15 ) of 03.04.2003, No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001, No 2453-VI
( 2453-17 ) of 07.07.2010 – changes to the procedure of execution of power by the Supreme court of Ukraine and High Civil and Criminal Court of Ukraine come into force after High Civil and Criminal Court of Ukraine starts its work – from 01.11.2010)


(Article 157 is omitted by Law No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001)


Article 158. Enforcement of the decision to commit to custody as a measure of restraint

Decision to commit to custody as a measure of restraint is enforced by the agency which imposed this measure of restraint. If necessary, the agency which imposed this measure of restraint may assign execution of this decision to Interior agencies. One copy of the judge’s decision or court’s ruling is forwarded together with the arrested person to the place of detention pending trial for execution.

(Article 158 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84, by Law No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001)


Article 159. Taking care of underage children of the arrested person

If a person taken into custody has underage children who are thus left without care, investigator is required to promptly make a submission to the Service in charge of juveniles so that the latter takes necessary measures to commit the said juvenile children to the care of relatives or to place them in a child care institution.
The investigator informs the prosecutor and the arrested person on measures taken and attaches a copy of such submission to records of the case.

(Article 159 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 117-VIII (
117-08 ) of 30.08.71, by Law No 2670-III ( 2670-14 ) of 12.07.2001, No 609-V ( 609-16 ) of 07.02.2007).


Article 160. Protection of prisoner’s property

When imprisoning a suspect or the accused, investigator is required to take measures to protect the property and home of prisoner if the property and home remain without care.


Article 161. Notice of custody

Investigator is required to promptly notify the spouse or any other relative and the place of employment of the suspect or the accused that he/she has been committed to custody and the place where he/she is kept.
Where the accused is an alien, the decision to arrest is sent to the Ministry of Foreign Affairs of Ukraine.

(Article 161 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84).


Article 162. Visits to the arrested person

Visits of relatives or other persons to the arrested person may be allowed by the official or agency conducting proceedings in the case. Visits may last from one to four hours. A visit may be allowed once per month.
The issues related to visits of relatives or other persons to a person in whose respect detention or extradition arrest is imposed as a measure of restraint is considered by an agency conducting extradition inspection.

(Article 162 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 117-VIII ( 117-08 ) of 30.08.71, by Law No 488-IV (488-15) of 06.02.2003, No 2286-VI
( 2286-17 ) of 21.05.2010).

Section II

INSTITUTING CRIMINAL PROCEEDINGS, INQUIRY, AND PRE-TRIAL INVESTIGATION

Chapter 13

MEASURES OF RESTRAINT

Article 165-2. The way in which a measure of restraint is ordered

If the inquiry agency, investigator finds that probable cause exists to believe that grounds for ordering a measure of restraint in the form of custody exist, he/she submits an appropriate motion to court. Prosecutor may enter such motion either. When deciding this matter, the prosecutor shall have the duty to review all records of the case which give grounds for committing to custody, verify how legally proofs were obtained, as well as how sufficient such proofs are for the accusation.

The motion should be considered within seventy two hours after the suspect or accused has been apprehended.

If the motion aims at taking into custody a person who is at large, judge may authorize, in his/her decision, apprehending the suspect, accused and his/her bringing to court under guard. In this case, the apprehension may not exceed 72 hours; and, if a person is outside the settlement in which the court operates – the period of detention may not exceed 48 hours since delivering the person concerned into this settlement.

Having received the motion, the judge, reviews records of criminal case as submitted by the inquiry, investigator, prosecutor, questions the suspect or the accused, if necessary takes explanations from the person who conducts proceedings in the case, hears opinion of the prosecutor, defense counsel if he/she has appeared, and thereafter takes a decision:
1) to deny imposing the measure of restraint if there no grounds for ordering such measure of restraint;
2) to order the measure of restraint in the form of custody against the suspect, accused. The court may take a decision on imposing custody as a measure of restraint in the absence of the concerned person only it the person is put on the international wanted list. In such cases, the court decides on ordering the measure of restraint in the form of custody or denies to impose such measure after a concerned person has been apprehended and within 48 hours from the moment of brining the person into court and in presence of the concerned person, and issues a corresponding ruling.

Section II

INSTITUTING CRIMINAL PROCEEDINGS, INQUIRY, AND PRE-TRIAL INVESTIGATION

Chapter 13

MEASURES OF RESTRAINT

Article 165-3. The way in which periods of custody are extended

With sufficient grounds absent for alteration of the measure of restraint or if it is impossible to complete the investigation of the case in terms of charges proved, the investigator, upon agreement with the appropriate prosecutor, or the prosecutor himself/ herself applies to court for the extension of custody. The motion states reasons for the extension of custody, circumstances and facts to be established, proofs confirming that the crime has been committed by the person kept in custody and substantiates the necessity of maintaining this measure of restraint.

Motion to extend custody shall be filed with court:
1) not later than five days before expiration of custody period if the custody is to be extended for up to four months;
2) not later than fifteen days before expiration of custody period if the custody is to be extended for up to nine months;
3) not later than twenty days before expiration of custody period if the custody is to be extended for up to eighteen months;
4) not later than five days before expiration of the maximum custody period if the custody is to be extended for the accused and his/her defense counsel to review records of the criminal case.

Having received the motion, the judge reviews records of the criminal case, if necessary interviews the accused, the person who conducts proceedings in the case, hears opinion of the prosecutor, defense counsel if he/she has appeared, and thereafter takes a decision, with sufficient grounds present therefor, on the extension of custody, except as referred to in Article 156, seventh paragraph, of the present Code, or dismisses the motion.

The prosecutor, suspect, accused, his/her defense counsel, or legal representative may appeal against judge’s decision within 3 day after it has been rendered. The appeal does not affect execution of the judge’s decision. Decisions of a judge of Court of Appeals or a justice of the Supreme Court of Ukraine may not be challenged, and the prosecutor may not challenge such decisions.

Section IX

SURRENDER OF THE PERSON (EXTRADITION)

Chapter 37

SURRENDER OF THE PERSON (EXTRADITION)

Article 462. Temporary arrest

The temporary arrest for 40 days or another established by the corresponding international treaty of Ukraine term is applied against the detained person who has committed a crime outside of Ukraine till the receipt of request on surrender of such person.

If the maximum term of temporary arrest provided by paragraph 1 of this article, expires, and the request on surrender of such person is not received, the person shall be immediately released from arrest.

The body of inquiry, which has detained the person, files upon the consent of the public prosecutor to court (located in a region of detention) a petition on application of temporary arrest. The public prosecutor has the right to file such petition.

The petition is attached with:
1) the report of detention of the person;
2) documents containing the data on commitment by the person of a crime in the territory of foreign state and establishing a preventive measure against such person by the competent body of foreign state;
3) documents confirming identity of the detained person.

Petition shall be considered within seventy two hours from the moment of detention of the person.

Considering a petition the judge establishes the identity of the detained person, proposes him to make the statement, checks out existence of the documents provided by subparagraph 2 of paragraph 3 of this article, hears the opinion of the public prosecutor, other participants and passes resolution on:
1) application of temporary arrest;
2) refusal in application of temporary arrest if for its choosing there are no bases. The resolution of the judge can be appealed by the public prosecutor, the person against whom temporary arrest is applied, his defender or the lawful representative before the court of appeal within three days from the date of passing of the resolution. Appeal against the resolution of the judge does not cease entry into force of such resolution and its execution. The ruling of the court of appeal is not subject to appeal; it can not be appealed by cassation petition of the public prosecutor.

Discharge of the person from temporary arrest in connection with untimely receipt by the central body of request on surrender does not interfere with application to such person of extradition arrest in case of reception subsequently of such request.

In case of receipt of the request on surrender of the person (extradition) before the
termination of term of temporary arrest established by the court, the resolution of the judge on application of temporary arrest becomes invalid from the moment of passing by the court of ruling on application extradition arrest against this person.

Section IX

SURRENDER OF THE PERSON (EXTRADITION)

Chapter 37

SURRENDER OF THE PERSON (EXTRADITION)

Article 463. Extradition arrest

After receipt of request of the competent body of foreign state on surrender of the person by order (application) of the central body, the public prosecutor files petition on extradition arrest of such person to court in which jurisdiction the person is holding in custody.

Besides the petition the following documents are submitted to court:
1) a copy of request of the competent body of foreign state on surrender of the person (extradition), certified by the central body;
2) documents on citizenship of the person;
3) available materials of extradition check.

Materials, submitted to the court, shall be translated into state language or other language provided by the international treaty of Ukraine.

After reception of petition the judge establishes identity of the person, proposes him to make the statement, checks out request on surrender and available materials of extradition check, hears the opinion of the public prosecutor, other participants and passes resolution on:
1) application extradition arrest;
2) refusal in application of extradition arrest if for its choosing there are no bases. Considering the petition the judge does not examine question on culpability and does not check legality of the procedural decisions passed by the competent bodies of foreign state in the case against the person the request on surrender is received for.

The resolution of the judge can be appealed by the public prosecutor, the person against whom temporary arrest is applied, his defender or the lawful representative before the court of appeal within three days from the date of passing of the resolution. Appeal against the resolution of the judge does not cease entry into force of such resolution and its execution. The ruling of the court of appeal is not subject to appeal; it can not be appealed by cassation petition of the public prosecutor.

Extradition arrest is applied to the decision of a question on surrender of the person (extradition) and his actual transfer, but cannot be more than eighteen months. Within this term the judge of jurisdiction the person is holding in custody checks out existence of the bases for further holding of the person in custody or for discharging of such person upon the petition of the public prosecutor at least once in two months.

Upon the complaint of the person against whom temporary arrest is applied, his defender or the lawful representative the judge of jurisdiction the person is holding in custody checks out existence of the bases for discharging of such person not more than once in a month.

If the maximum term of extradition arrest provided by paragraph 7 of this article expires, and a question concerning surrender of the person (extradition) and its actual surrender is not solved by the central body, the person shall be immediately discharged.

Discharging of the person from extradition arrest by the court does not interfere with its reapplication for the purpose of actual surrender of the person to foreign state for execution of the decision on surrender except as otherwise provided by the international treaty of Ukraine.

In case of discharging of the person by the court, the public prosecutor in oblast or his deputy by agreement with the corresponding central body passes ruling on application of other necessary measures aimed at prevention of flight of the person and providing of his surrender.

Such measures shall be sufficient to guarantee the possibility of execution of decision on surrender of the person (extradition), and can provide, in particular, bail, establishment of restrictions for movement of the person and the control over the place of stay of such person. Application of bail and establishment of restrictions for movement of the person are carried out according to the procedure provided by articles 981, 151 and 154-1 of this Code, taking into account features of this title.

The public prosecutor in oblast or his deputy notifies the person against whom resolution is passed, his defender or the lawful representative on passing the resolution.

The public prosecutor in oblast or his deputy can be charged by body of inquiry with execution of resolution.

Rome Statute

Article 92 Provisional arrest

1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91.

2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain:

(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;

(b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime;

(c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and

(d) A statement that a request for surrender of the person sought will follow.

3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.

4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.