Committee on Enforced Disappearances
Twenty-seventh session
Geneva, 23 September-4 October 2024
Item 6 of the provisional agenda
Consideration of reports of States parties under article 29 (1) and additional information under article 29 (4) of the Convention
Replies of Ukraine to the list of issues in relation to its report submitted under article 29 (1) of the Convention *
[Date received: 8 August 2024]
I.General information
Reply to paragraphs 1 to 3 of the list of issues (CED/C/UKR/Q/1)
Article 1 of the Law of Ukraine "On the Commissioner of the Verkhovna Rada of Ukraine on Human Rights" defines that parliamentary control over the observance of the constitutional rights and freedoms of man and citizen and the protection of the rights of everyone on the territory of Ukraine and within its jurisdiction is carried out on a permanent basis by the Commissioner of the Verkhovna Rada of Ukraine on Human Rights person (hereinafter referred to as the Authorized Person).
One of the goals of parliamentary control of the Commissioner is the improvement and further development of international cooperation in the field of protection of human and citizen rights and freedoms.
In addition, the Commissioner contributes to the implementation of diplomatic outreach measures aimed at a stop-effect for the Russian Federation (hereinafter - the Russian Federation), as well as the creation of conditions for the issuance of ICC warrants for the illegal deprivation of liberty of civilian victims of enforced disappearances against the guilty Russian officials.
After Ukraine's accession to the International Convention on the Protection of All Persons from Enforced Disappearances (Law of Ukraine "On Ukraine's Accession to the International Convention on the Protection of All Persons from Enforced Disappearances" dated 17.06.2015 No. 525-VIII), the Commissioner received 2,458 appeals in the interests of 1,967 persons , who became victims of enforced disappearances of Ukrainian citizens in the temporarily occupied territory of the Autonomous Republic of Crimea and certain districts of the Donetsk and Luhansk regions (hereinafter - TOT).
In the course of consideration of these appeals, the absolute majority of civilians detained by the Russian Federation should be considered as victims of enforced disappearances, since this includes arrest, detention, abduction or deprivation of liberty by state representatives or with their consent, as well as further concealment of the fact of deprivation of liberty or information about the fate of the disappeared.
The Russian Federation carried out and continues to carry out open deportation of Ukrainian citizens who were held in places of deprivation of liberty in the International Criminal Court, which according to paragraph 1 (d) of Article 7 of the Rome Statute (deportation or forcible transfer of the population) can be qualified as a crime against humanity.
The Russian Federation does not report all cases of detention of civilians and refuses to provide information about their whereabouts even to their closest relatives. This is enough to recognize a person as a victim of enforced disappearance.
The issue of the release of civilians deprived of their freedom as a result of armed aggression against Ukraine has been on the agenda since 2014, when the Russian armed forces annexed and occupied part of Ukrainian lands, began to illegally deprive the Ukrainian civilian population of their freedom and place them in places of deprivation of liberty on the border with Ukraine and in the Russian Federation.
The Commissioner's Secretariat is working to establish places of detention for civilians. In cooperation with other state bodies and non-governmental organizations that are part of the Working Group on the Protection of the Rights and Freedoms of Civilians (hereinafter - the Working Group) established at the Coordination Headquarters for the Treatment of Prisoners of War, chaired by the Representative of the Commissioner for Human Rights in the system of bodies of the security and defense sector, mechanisms are being developed to find and release civilians deprived of their personal freedom as a result of the armed aggression of the Russian Federation, who went missing in connection with the armed conflict, military operations, and the temporary occupation of the territory of Ukraine. Also, the work of the Working Group is aimed at ensuring the realization of the rights of civilians to medical care, decent conditions of detention, communication with relatives and processing of documents for returning to Ukraine during their stay in places of detention. According to the results of the working group, 10 civilians were returned on 06/28/2024.
Among other things, with the support and in cooperation with international legal institutions, as well as representatives of partner countries, the Commissioner systematically appeals to the Commissioner for Human Rights in the Russian Federation with calls for the Russian side to respect the rights and freedoms of Ukrainian citizens, as well as the release of all illegally detained persons. However, the Russian Federation's non-recognition of the facts of the illegal detention of civilians and systematic violations of their rights require the search for new levers of influence on the Russian Federation in order to ensure the observance of the rights of civilians on the ILO and in the Russian Federation.
In the international arena, the Commissioner constantly proposes the necessary steps for the release of civilians detained by representatives of the Russian Federation:
1. Approval by the countries of the world of a package of international sanctions and criminal prosecution based on the principle of universal jurisdiction against representatives of the Russian Federation, guilty of the illegal deprivation of liberty of civilians;
2. Implementation of measures of diplomatic influence, aimed at creating a stop-effect for the Russian Federation;
3. Issuance of a warrant by the International Criminal Court for the arrest of Russian representatives who are responsible for the enforced disappearance of Ukrainian civilians;
4. Granting full access to representatives of the International Committee of the Red Cross (hereinafter - the ICRC) to prisoners of war and civilians in the Russian Federation and on the ICRC.
In order to effectively fulfill the assigned tasks, it is necessary to involve more countries in order to increase the pressure on the Russian Federation, to find a sponsoring country, to give the ICRC and other international organizations full access to the imprisoned Ukrainians in the Russian Federation and at the International Criminal Court.
Reply to paragraph 4 of the list of issues
The Law of Ukraine of April 27, 2022 No. 2505- VIII "On the Legal Status of Persons Disappeared Under Special Circumstances" (hereinafter - the Law), in accordance with its preamble, defines the legal status of persons who have disappeared due to special circumstances, and provides legal regulation of public relations related to the acquisition of legal status of persons who have disappeared under special circumstances, with registration, tracing and social protection of such persons and their family members.
For the purposes of this Law, armed conflict, military operations, temporary occupation of a part of the territory of Ukraine, emergency situations of a natural or man-made nature are considered special circumstances.
According to the provisions of the first part of Article 1 of the Law, a person who has gone missing under special circumstances is a person who has gone missing in connection with an armed conflict, military operations, temporary occupation of a part of the territory of Ukraine, natural or man-made emergencies.
In accordance with Article 2 of the Law, the legal status of persons who have gone missing under special circumstances is determined by this Law and other laws of Ukraine, as well as international treaties of Ukraine, the binding consent of which has been given by the Verkhovna Rada of Ukraine.
In accordance with Article 3 of the Law, this Law regulates public relations related to the acquisition of legal status of persons who have disappeared under special circumstances, with registration, tracing and social protection of such persons and their family members.
The effect of this Law applies only to those cases of disappearance of missing persons that are connected with armed conflict, military operations, temporary occupation of part of the territory of Ukraine, emergency situations of a natural or man-made nature, including if a person disappeared under violent conditions.
II. Definition and criminalization of enforced disappearance (Articles 1–7)
Reply to paragraph 5 of the list of issues
In accordance with the provisions of Article 1 of the Law "On the Legal Status of Persons Disappeared Under Special Circumstances" (hereinafter - the Law), the Unified Register of Persons Disappeared Under Special Circumstances (hereinafter - the Register) is an electronic database designed for storage, protection, processing , the use and dissemination of information defined by this Law about persons who have gone missing under special circumstances, their unidentified remains, the presence or absence of a court decision to recognize persons who are missing, missing without notice or declared dead, as well as other data used to ensure the registration of persons , missing persons, with the aim of searching for them.
According to parts one and three of Article 12 of the Law, the Register is created to accumulate and centralize information and data about such persons, as well as record information necessary for their effective search.
According to clause 3 of Section I of the Regulation, the owner of the Register and the owner of the information processed in it is the state represented by the Ministry of Internal Affairs of Ukraine, which provides organizational, regulatory and legal support for the functioning of the Register and control over compliance with the requirements of the legislation for maintaining the Register.
According to Clause 6 of Section I of the Regulation, the structure of the Register consists of interconnected sections that contain:
Information about persons missing under special circumstances;
Information about unidentified bodies (remains) of deceased (deceased) persons and related things, documents.
The Register contains the following information about a person who has gone missing under special circumstances, in particular:
Surname, first name, patronymic (if available), photo;
Information about the date and place of birth, marital status, declared and actual place of residence of the person;
Details of identity documents, confirming Ukrainian citizenship or special status of a person;
Date, place (including with reference to the settlement, coordinates of disappearance), circumstances and time of the person's disappearance;
Information about the presence of criminal proceedings initiated due to the disappearance of such a person, or in which the victim is a person who has disappeared under special circumstances;
Other information that may contribute to the search for a missing person under special circumstances.
In particular, information on cases of enforced disappearance (arrest, detention, abduction by representatives of the aggressor state, etc.) and cases of disappearance in which not all the elements of Article 2 are present are entered into the accounts of persons who have disappeared under special circumstances contained in the Register. of the International Convention for the Protection of All Persons from Enforced Disappearances of December 20, 2006 (hereinafter referred to as the Convention). However, neither the Regulation nor the technical functionality of the Register provides for the possibility of obtaining structured statistical data according to this criterion, given that the Register indicates the status of a person: "missing", "captive" and "deceased", according to which it is possible to obtain differentiated data, and cases of enforced disappearance are accordingly covered by the status of missing.
Reply to paragraph 5 (a) of the list of issues
In accordance with the third part of Article 17 of the Law, the National Police of Ukraine and the bodies that carry out operational search activities defined by the Law of Ukraine "On operational investigative activities".
In accordance with the first part of Article 18 of the Law, an application to search for a person who has disappeared under special circumstances is submitted to the relevant territorial body of the National Police of Ukraine.
According to Clause 2 of Section II of the Regulation, in case of receiving information about the disappearance of a person under special circumstances or a request for a search for such a person, the National Police of Ukraine informs the Commissioner within three days from the moment of receiving such information or request through electronic information interaction with the Register.
In order to update information in the Register on a daily basis, the National Police of Ukraine provides basic information exchange in accordance with the Protocol of electronic information interaction of the Ministry of Internal Affairs of Ukraine and the National Police of Ukraine on the functioning of the Register, dated April 27, 2023, No. 1.
In this way, information about a missing person appears in the Register within one day.
In accordance with Article 18 of the Law, the information specified in the application for the search for a person missing under special circumstances must be entered in the Register in accordance with the procedure provided for by this Law, within 24 hours after the Commissioner receives information from the National Police of Ukraine about the disappearance of a person under special circumstances or information on receiving an application for the search of such a person.
According to the first part of Article 4 of the Law, a person acquires the status of having disappeared under special circumstances, from the moment of entering the information about him, contained in the statement about the fact of disappearance, into the Register, in accordance with the procedure provided for by this Law, and is considered to have disappeared missing under special circumstances, from the moment the applicant submits a statement about the fact of the person's disappearance.
Reply to paragraph 5 (b) of the list of issues
The law, in particular, provides for the Commissioner to receive information (including personal data) from state authorities through information interaction between the Register and other state information resources in electronic form by information and communication means using technical and cryptographic protection of information in accordance with the requirements of legislation on information protection.
According to Clause 1 of Section I of the Regulation, the Register is a functional subsystem of the unified information system of the Ministry of Internal Affairs of Ukraine (hereinafter referred to as the EIS of the Ministry of Internal Affairs of Ukraine).
Filling the Register is carried out using the information systems of the entities filling the Register by means of the central subsystem of the EIS of the Ministry of Internal Affairs or the system of electronic interaction of state electronic information resources.
According to Clauses 8 and 9 of Section II of the Regulations, the order of electronic information interaction between the subjects filling the Register and the Register holder is determined by joint legal acts of the subjects filling the Register and the Register holder.
The Register provides information interaction with registers, databases (banks) of data subjects filling the Register.
In accordance with the fourth paragraph of clause 2 of Section I of the Regulations, the subjects of the Register are the National Police of Ukraine, the Security Service of Ukraine, the National Guard of Ukraine, the Commissioner for Missing Persons under Special Circumstances, the Ministry of Defense of Ukraine, the Ministry of Health of Ukraine, The Office of the Prosecutor General, the State Migration Service of Ukraine, the Department for the Execution of Criminal Punishments, interregional administrations for the execution of criminal punishments of the Ministry of Justice, authorized bodies for probation, the State Judicial Administration of Ukraine, the State Service of Ukraine for Emergency Situations, the Ministry of Community Development, Territories and infrastructure of Ukraine, the State Border Service of Ukraine, the Pension Fund of Ukraine, the Main Intelligence Directorate of the Ministry of Defense of Ukraine, the Expert Service of the Ministry of Internal Affairs of Ukraine, local executive authorities.
The legal principles of processing human genomic information for the purpose of its state registration in Ukraine are defined by the Law of Ukraine dated July 9, 2022 No. 2391 ‑IX "On State Registration of Human Genomic Information", Article 1 of which, in particular, states thatThe electronic register of human genomic information (hereinafter - the Electronic Register) is an information and communication system that ensures the collection, registration, accumulation, storage, renewal, search, use and distribution (distribution, transmission) of human genomic information.
According to Clause 1 of Section I of the Regulation on the Electronic Register of Human Genomic Information, approved by Order No. 609 of the Ministry of Internal Affairs of Ukraine dated August 4, 2023, the Electronic Register of Human Genomic Information is a functional subsystem of the EIS of the Ministry of Internal Affairs.
State registration of genomic information is carried out for the purpose, in particular, of searching for missing persons and identification of unrecognizable human corpses, their remains and human body parts, which is held by the Ministry of Internal Affairs of Ukraine.
Currently, the process of setting up the organization of electronic information interaction between the Register and the Electronic Register is ongoing, however, taking into account that the specified direction depends on the technical capabilities of the relevant information resources of the subjects of electronic interaction, the tentative conclusion of the relevant agreement on information interaction is planned for December 2024 - early January 2025 year.
In accordance with the third paragraph of the second part of Article 17 of the Law, the central body of executive power, which ensures the formation and implementation of state policy in the field of health care, is assigned to the bodies authorized to register persons who have gone missing under special circumstances.
In accordance with the second clause of Section I of the Regulation, one of the subjects of filling the Register is the Ministry of Health of Ukraine.
In accordance with the provisions of clauses one and five of Chapter II of the Regulation, the Ministry of Health, as the subject of filling out the Register, ensures the entry of information on unidentified bodies (remains) of deceased (deceased) persons, missing under special circumstances, and related to them things; in case of impossibility of identification of unrecognizable bodies (remains) of persons, information that may contribute to the identification of the person, in particular the date and place of discovery of such remains, data of a complete postmortem examination, including special signs, age, physique, etc., clothing and personal belongings, samples and DNA profiles obtained in DNA laboratories are recorded by specialized institutions of the Ministry of Health of Ukraine and divisions of the Expert Service of the Ministry of Internal Affairs of Ukraine within the scope of competence defined by the legislation, and are entered in the appropriate section of the Register.
Reply to paragraph 6 of the list of issues
As of July 19, 2024, the Unified Register of Persons Disappeared Under Special Circumstances (hereinafter referred to as the Register) contains 52,067 register entries, of which 2,195 are related to unidentified bodies (remains) and 49,872 are related to persons who have disappeared due to special circumstances. circumstances, of which the search is ongoing for 42,745, and the search has been terminated for 7,127 (3,860 in connection with the discovery of a body, 3,267 in connection with establishing the location).
Reply to paragraph 6 (a) of the list of issues
Of the total number of persons who went missing due to special circumstances – 49,872, of which: military personnel – 40,447, and civilians, including those who were authorized to perform state functions, – 9,425; 3,733 – women and 46,139 – men; age category of which: less than 18 years - 2,159; 18-30 years old – 10,481; 30-40 ‑years old - 14,391; 40-50 years old – 14,416; more than 50 years - 8,425.
Reply to paragraph 6 (b) of the list of issues
Every person who is missing under special circumstances and in respect of whom there is no official confirmation by the aggressor state through the Central Tracing Agency of the International Committee of the Red Cross that he is in captivity, could potentially become a victim of enforced disappearance; currently, the number of such persons is 38,633 persons, whose fate as of now remains undetermined.
At the same time, the Register contains information on the number of persons who went missing under special circumstances, in respect of which a statement was submitted to the bodies of the National Police Service and the Security Service of Ukraine: in 2014 – 271; 2015 – 114; 2016 – 48; 2017 – 40; 2018 – 46; 2019 – 56; 2020 – 61; 2021 – 48; 2022 – 17,298; 2023 – 20,101; 2024 – 11,772. At the same time, the relatives of such missing persons, their commanders, acquaintances, etc., do not always immediately submit an application for the search of a person to law enforcement agencies.
In particular, the Register contains information about 1,022 persons who disappeared under special circumstances and in respect of whom a report has been submitted to law enforcement authorities and, accordingly, a pre-trial investigation is being carried out for the fact of a criminal offense provided for in Article 146-1 (Enforced disappearance) of the Criminal Code of Ukraine. At the same time, 2,381 persons were reported to have committed a criminal offense under Article 438 (Violation of the Laws and Customs of War) of the Criminal Code of Ukraine, which in most cases, according to the actual circumstances of the offense, is also related to the enforced disappearance of persons.
At the same time, it is not considered possible to provide structured statistical indicators from the Register according to the requested criteria, namely gender identity, sexual orientation, nationality, ethnic origin and religious affiliation, since neither the Regulations nor the technical capabilities of the Register provide for such a division of missing persons by special circumstances, according to the specified criteria.
Reply to paragraph 7 of the list of issues
In accordance with Article 7 of the Decree of the President of Ukraine dated 24.02.2022 No. 64/2022 "On the introduction of martial law in Ukraine" and Article 6 of the Decree of the President of Ukraine dated 23.02.2022 No. 63/2022 "On the introduction of a state of emergency in certain regions of Ukraine", the Ministry of Foreign Affairs is responsible the body that notifies the UN Secretary General and the Council of Europe about Ukraine's withdrawal from certain obligations specified in the International Covenant on Civil and Political Rights and the Convention on the Protection of Human Rights and Fundamental Freedoms in connection with the introduction of the above-mentioned conditions in Ukraine.
Directly sending relevant statements to the UN and the Council of Europe regarding withdrawal was carried out by the Ministry of Foreign Affairs by sending verbal notes, which are posted on the official websites of these international organizations. The main purpose of notification is that the waiver becomes public.
For reference:
“In the part of derogation from certain obligations under international treaties of Ukraine, we note that the derogation (derogation) concerns only the International Covenant on Civil and Political Rights (hereinafter - the Covenant) and the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter - the Convention), according to articles 4 and 15 of which, in times of war/emergency threatening the life of the nation, any High Contracting Party may take measures derogating from its obligations under these international treaties, only to the extent required by the urgency of the situation , and provided that such measures do not conflict with its other obligations under international law.
In the context of Article 7 of the Decree of the President of Ukraine dated 24.02.2022 No. 64/2022 "On the introduction of martial law in Ukraine" and Article 6 of the Decree of the President of Ukraine dated 23.02.2022 No. 63/2022 "On the introduction of a state of emergency in certain regions of Ukraine" 26.02.2022 by letter of the Ministry of Justice No. 23925/12.3.1/26-22 for further transmission to the Secretaries General of the United Nations and the Council of Europe, the Ministry of Foreign Affairs sent information regarding the withdrawal of Ukraine from certain obligations defined by the Covenant and the Convention in connection with the introduction of the above-mentioned conditions in Ukraine.
Directly sending relevant statements to the UN and the Council of Europe regarding withdrawal was carried out by the Ministry of Foreign Affairs by sending verbal notes, which are posted on the official websites of these international organizations. The main purpose of notification is that the waiver becomes public.
The Secretary General of the United Nations and the Secretary General of the Council of Europe are constantly informed about the continuation of retreats in view of the adoption of the decrees of the President of Ukraine on the extension of the martial law in Ukraine.
In view of the need for a periodic review of derogation measures, the Ministry of Justice, taking into account the position of the authorities concerned, prepared a draft of a revised notification on derogating from a number of obligations under the Covenant and the Convention, carried out in accordance with Art. 4 of the Covenant and Art. 15 of the Convention in connection with the introduction of martial law in Ukraine in accordance with the Decree of the President of Ukraine dated 24.02.2022 No. 64/2022 "On the introduction of martial law in Ukraine" (hereinafter - the Decree of the President) on 25.03.2024 by letter to the Ministry of Justice for further transmission to the General the secretaries of the UN and the Council of Europe of the Ministry of Foreign Affairs were sent information regarding the reduction of the derogation under a number of predefined articles of the Covenant and the Convention.
Deviation from obligations under Art. Art. 12, 17, 19, 21, 25 of the Covenant and Art. 8, 10, 11 of the Convention, Art. Art. 1, 2, 3 of the Additional Protocol, Art. 2 of Protocol No. 4 to the Convention has been extended. Deviation from obligations under Art. Art. 3, 8(3), 9, 13, 20, 22, 24, 26, 27 of the Covenant and Art. 4(3), 9, 13, 14, 16 of the Convention are repealed.
Also, the Ministry of Justice has prepared updated information on the deviation from the obligations under the Covenant and the Convention in connection with the possible application of the norms provided for in Art. 615 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the Criminal Code of Ukraine), taking into account the changes made to it by the Law of Ukraine dated 07.27.2022 No. 2462-IX.
The retreat was extended under Art. 2(3), 9, 14 and 17 of the Covenant, as well as Art. 5, 6, 8 and 13 of the Convention and supplemented by the statement that it is carried out without prejudice to the fundamental principles of fair trial and legal protection, including of the ne bis in idem principle.
The above information, taking into account Art. 7 of the Presidential Decree was sent to the Ministry of Foreign Affairs by letters dated February 8, 2024 No. 20979/12.3/26-24 and March 25, 2024 No. 45794/12.3/26-24 for further information to the Secretary General of the Council of Europe and the Secretary General of the United Nations.”.
Reply to paragraph 8 of the list of issues
At the moment, the Security Service of Ukraine (hereinafter referred to as the Security Service of Ukraine) has not identified facts of involvement of Ukrainian servicemen and law enforcement officers in the enforced disappearance of participants in the armed conflict, and relevant criminal proceedings are not being investigated by SBU investigators.
At the same time, in the course of the pre-trial investigation in criminal proceedings, the investigators of the Security Service of Ukraine established the facts of the organization by the military and political leadership of the aggressor state in the temporarily occupied territories of Ukraine and the Russian Federation of places of temporary and permanent detention of captured servicemen of the Defense Forces of Ukraine in violation of the provisions of the Geneva Convention on the Treatment of prisoners of war In particular , numerous facts of long-term detention by representatives of the aggressor country of captured servicemen of the Defense Forces of Ukraine in places that are not suitable for long-term detention of prisoners of war, with violation of the conditions of detention and the use of physical, psychological and sexual violence have been established.
Thus, investigators of the Security Service of Ukraine are conducting a pre-trial investigation in criminal proceedings on the suspicion of the head of the so-called "state government institution "Sukhodil Correctional Colony of the Department of Execution of Punishments of the Ministry of Internal Affairs of the Luhansk People's Republic" , which is part of the structure of the Federal Service of Execution of Punishments of the aggressor state, citizen of Ukraine Rudyak in the commission of the crime provided for in part 1 of Art. 438 of the Criminal Code of Ukraine, which, starting from the second half of June 2022 to the end of November 2022, Rudyak, with the aim of humiliating the prisoners of war servicemen of the Defense Forces of Ukraine, gave orders to the colony employees subordinate to him to systematically humiliate and torture our military personnel.
In addition, it was established that in the period from 2014, under the leadership of Pasichnyk as the head of the "MGB" and later as the head of the "LNR", a large number of murders, torture, hostage-taking, torture, intimidation of the population and other attacks on life or health were committed. innocent people in order to achieve criminal goals determined by the terrorist state.
It was established that on October 15, 2016, representatives of the so-called "Ministry of State Security" of the terrorist organization "LNR", acting deliberately on the orders of Pasichnyk, illegally kidnapped the judge of the Court of Appeal of the Luhansk Region V.V. Rudenko, illegally deprived him of his liberty and kept him in unbearable conditions in the basement premises for 9 months in order to obtain the latter's consent to a television interview with an anti-Ukrainian content.
In addition, during the investigation of the criminal proceedings on the suspicion of Palamarchuk, a citizen of the Russian Federation, in the commission of a criminal offense, provided for in Part 2 of Art. 28, Part 1 of Art. 438 of the Criminal Code of Ukraine established that Palamarchuk in February 2022, holding the position of the so-called "commandant" - head of the "garrison" of the Russian occupation troops, on the territory of the village of Lazurne of the Skadovsky district of the Kherson region in the premises of the "Chaika" boarding house, took part in the kidnapping and torture of the head of the Bekhter united territorial community of the Skadovsky district of the Kherson region, Mykhailo Ivanovich Burak, born on January 31, 1958.
In the course of the pre-trial investigation in the criminal proceedings, on the suspicion of an employee of the 9th Department of the Operational Information Department of the 5th Service of the FSB of the Russian Federation, Maksym Viktorovych Zhyvyla was charged with committing the crime provided for in Part 2 of Art. 28, Part 1 of Art. 438 of the Criminal Code of Ukraine. which were Lived by M.V. used physical and psychological pressure on them.
Reply to paragraph 9 of the list of issues
The Law of Ukraine dated July 12, 2018, No. 2505 "On the Legal Status of Persons Missing in Special Circumstances" (as amended) criminalizes such a socially dangerous act as enforced disappearance.
Article 146-1 of the Criminal Code of Ukraine (hereinafter - Criminal Code) establishes responsibility for enforced disappearance.
In particular, the first part of this article stipulates responsibility for the arrest, detention, kidnapping or deprivation of liberty of a person in any other form, committed by a representative of a state, including a foreign one, with the subsequent refusal to recognize the fact of such arrest, detention, kidnapping or deprivation of liberty of a person in in any other form or by hiding data about the fate of such a person or his whereabouts.
In addition, the Institute of the Commissioner of Persons Missing Under Special Circumstances was introduced in Ukraine, including with its regional representatives, and the Unified Register of Persons Missing Under Special Circumstances was created.
Resolution 68/262 of the UN General Assembly on the territorial integrity of Ukraine contains facts about gross violations of human rights in the Autonomous Republic of Crimea and the city of Sevastopol and other territories temporarily occupied by the Russian Federation as integral parts of the territory of Ukraine by the occupation authorities of the Russian Federation, in particular in the context of full-scale Russian aggression. At the disposal of the Commissioner, according to information from the Register, there is information (as of July 19, 2024) about 65 civilians who disappeared in such occupied territories (later partially de-occupied), respectively, they were persons who went missing under special circumstances, and in later - they were identified in corpses, in particular, their bodies were found in mass graves.
At the same time, we inform you that the National Police of Ukraine and the Security Service of Ukraine did not receive information about the disappearance of believers and clerics of the Ukrainian Orthodox Church, in particular Archpriest Victor Talk and Archimandrite Lavra.
Reply to paragraph 10 of the list of issues
Since the beginning of the armed aggression of the Russian Federation against Ukraine, the risk of Ukrainian citizens falling into a situation of human trafficking has increased.
Persons who found themselves in the temporarily occupied territories of the TOT (hereinafter - TOT) are the most vulnerable category for falling into the situation of human trafficking, as they can be used in an armed conflict, subjected to labor and other types of exploitation. The enslaved state of prisoners, threats, the use of psychological and physical violence, deprivation of food and water become prerequisites for their involvement in human trafficking.
In particular, the National Police receives letters from the National Social Service of Ukraine (hereinafter referred to as the National Social Service) regarding the processing of lists of orphans, children deprived of parental care (status lists) who were forcibly deported by the aggressor country to the territory of the Russian Federation, the Republic of Belarus or left in temporarily occupied territories.
As of July 18, 2024, the National Social Service received information about 3,699 children of the specified category, which are subject to verification.
According to the results of the verification of the mentioned facts, 2,277 persons were declared wanted by the territorial police bodies. Out of the total number, 2,248 children have been located. According to the data of wanted records, 1,451 remain unaccounted for.
During the past and this year, as a result of the Save Ukraine rescue missions, Ukraine returned 439 children illegally taken to the Russian Federation and temporarily occupied territories.
In addition, Ukraine launched an information campaign on the territory of Russia aimed at the return of deported children, which is carried out within the framework of the action plan approved by the President of Ukraine.
At the same time, in the period from 24.02.22 to 19.07.24, in the criminal proceedings related to the open military aggression of the Russian Federation against Ukraine, which are being investigated by the investigators of the Security Service of Ukraine, 274 facts related to the deportation and illegal transfer of our citizens were established, in which they were recognized as victims everything 5142 people, including 4855 children and 287 adult civilians.
According to the results of the investigation, the SBU investigators informed the Ukrainian citizen Yevgeny Vitaliyovych Balytskyi, the so-called "head of the military-civilian administration of the Zaporozhye region" of the criminal offense provided for in part 2 of Art. 28, Part 1 of Art. 438 of the Criminal Code of Ukraine, namely in the forced relocation of at least 50 protected persons from the temporarily occupied territory of the Zaporizhzhia region.
In addition, the Main Investigative Department of the SBU is conducting a pre-trial investigation in criminal proceedings on the facts of the forced transfer of Ukrainian children to the temporarily occupied territories of Ukraine during 2022-2024, their deportation to the Russian Federation, the Republic of Serbia, forced granting of Russian citizenship, transfer to Russian families for guardianship and adoption on the grounds of criminal offenses provided for in part. 1, 2 Art. 438 of the Criminal Code of Ukraine.
In the course of the pre-trial investigation, indisputable evidence of illegal activity was collected and a suspicion was reported under Part 2 of Art. 28 part 1 of Art. 438 of the Criminal Code of Ukraine:
To citizen of the Russian Federation Kastyukevich Ihor Yuriyovych ( deputy of the State Duma of the Federal Assembly of the Russian Federation ); tocitizens of UkraineIlmiyev Vadim Viktorovych ( head of the so-called "Department of Health Care of the Kherson Region of the Military-Civil Administration of the Kherson Region" ); TetyanaVasylivnaZavalska, ( actingchiefphysician of the statebudgethealthcareinstitution "Khersonskyoblastnoidomrebenka" illegally created by the occupation authorities ) , which OnSeptember 2, 2022, the forcibletransfer of 2 pupils of the KhersonOblastChildren'sHomethrough the temporarilyoccupiedterritories of Ukraineto the territory of the RussianFederationwasorganized and carriedout, and onOctober 21, 2022, the forcibletransfer of 46 pupilsbetween the territories of Ukrainetemporarilyoccupiedbythe RussianFederationwasorganized and carriedout. laterdeliveredto the temporarilyoccupiedterritory of the CrimeanPeninsula;
Citizens of the Russian Federation Lantratova Yana Valeriivna, ( deputy of the State Duma of the Federal Assembly of the Russian Federation) , citizens of the Russian Federation Varlamova Inna Hennadiivna, who organized and carried out on 02.09.2022 the forcible transfer of children from the KNP "Kherson Regional Children's House" through the temporarily occupied territories of Ukraine and the subsequent deportation of children to the territory of the Russian Federation;
Ukrainian citizen YevgeniaOlehivnaChernyshova, (the so-called rector of the state budget educational institution of higher education of the Kherson region "Kherson Agrarian University"), citizen of Ukraine Georgy AnatoliyovychTambovtsev, (the so-called deputy head of the Department of Youth Policy, Family and Sports of the military -civil administration of the Kherson region), who organized and carried out the forcible transfer of 15 pupils of the Novopetriv Special School of the Ministry of Education through the temporarily occupied territories of Ukraine, whose pupils were subsequently deported by unidentified persons to the city of Anapa, Russian Federation.
In order to establish the number of deported Ukrainian children, the Security Service of Ukraine, in cooperation with regional units of the National Police of Ukraine, is verifying the information received from the National Information Bureau regarding the possible transfer/deportation of 19,546 children from the Donetsk, Luhansk, Zaporizhzhia, Kherson, Mykolaiv, and Kharkiv regions, i.e. territories that were or remain temporarily occupied by the Russian Federation.
Based on the evidence obtained by the investigators of the Security Service of Ukraine, the International Criminal Court in the case of the illegal transfer and deportation of Ukrainian children by the Russian side issued an arrest warrant for Putin and the Russian President's Commissioner for Children, Maria Lvova-Belova.
In addition, the fact of forced relocation of Ukrainian citizens from the temporarily occupied territory of the Mykolaiv region by the military of the Don Cossack Brigade of the Russian Federation, which from June 2022 to February 2023 under the pretext of evacuation, forcibly relocated 14 local residents of the village of Pokrovske et al. Vasylivka of the Kinburn Peninsula in Mykolaiv Oblast to the occupied city of Simferopol, AR Crimea.
Reply to paragraph 11 of the list of issues
According to parts three and four of Article 12 of the Criminal Code of Ukraine (hereinafter referred to as the Criminal Code), a non-serious crime is an act (action or inaction) provided for by the Criminal Code, for the commission of which the main punishment is provided in the form of a fine in the amount of no more than ten thousand tax-free minimum incomes of citizens or deprivation of liberty for a period of no more than five years.
A serious crime is an act (act or inaction) provided for by the Criminal Code, for the commission of which the main punishment is prescribed in the form of a fine in the amount of no more than twenty-five thousand non-taxable minimum incomes of citizens or imprisonment for a term of no more than ten years.
Article 146 1 of the Criminal Code provides that the actions provided for in part one of this article are punishable by imprisonment for a term of three to five years, and the actions provided for in part two are punishable by imprisonment for a term of five to seven years.
In the context of measures taken to criminalize enforced disappearance as a crime against humanity in national legislation, it is noted in particular that the draft Law of Ukraine "On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine" is being considered by the Verkhovna Rada of Ukraine (reg. No. 7290 of April 15, 2022), which was developed by the Ministry of Justice of Ukraine with the aim of bringing the provisions of the Criminal Code into line with the norms of international law and ensuring criminal prosecution for international crimes (genocide, crime of aggression, crimes against humanity and war crimes).
Article 442of the Criminal Code in the wording of the aforementioned draft Law is designed to ensure the criminalization of crimes against humanity. The list of acts provided for by this article fully, in compliance with national legal techniques, provides for the content of Article 7(1) of the Rome Statute, the provision of which in modern international law is considered as a standard from the point of view of the normative characteristics of this crime under international law, which also establishes responsibility for crimes against humanity.
In the context of the issue of mitigating and aggravating circumstances, it is noted that in accordance with the second and third parts of Article 65 of the Criminal Code, a person who has committed a criminal offense must be given a punishment that is necessary and sufficient for his correction and prevention of new criminal offenses. A more severe type of punishment from among those provided for a committed criminal offense is prescribed only if a less severe type of punishment is insufficient to correct the person and prevent him from committing new criminal offenses.
The grounds for imposing a milder punishment than that provided for by the relevant article of the Special Part of the Criminal Code for a committed criminal offense are determined by Article 69 of the Criminal Code.
According to the first part of Article 66 of the Criminal Code, when imposing a punishment, mitigating circumstances are recognized: appearing with a confession, sincere remorse or active assistance in the detection of a criminal offense; voluntary compensation for the damage caused or elimination of the damage caused; provision of medical or other assistance to the victim immediately after the commission of a criminal offense; committing a criminal offense by a minor; commission of a criminal offense by a pregnant woman; committing a criminal offense as a result of a combination of serious personal, family or other circumstances; committing a criminal offense under the influence of threats, coercion or due to material, official or other dependence; commission of a criminal offense under the influence of strong emotional disturbance caused by cruel treatment, or such that degrades the honor and dignity of a person, as well as in the presence of a systemic nature of such treatment on the part of the victim; committing a criminal offense exceeding the limits of extreme necessity; performance of a special task to prevent or uncover the criminal activity of an organized group or criminal organization, combined with the commission of a criminal offense in cases provided for by the Criminal Code.
At the same time, the first part of Article 67 of the Criminal Code establishes that when imposing a punishment, aggravating circumstances shall include: repeated commission of a crime by a person and recidivism of crimes; commission of a criminal offense by a group of persons based on a prior conspiracy (part two or third of Article 28); committing a criminal offense on the basis of racial, national, religious enmity or discord or on the basis of gender; committing a criminal offense in connection with the victim's performance of an official or public duty; serious consequences caused by the crime; committing a criminal offense against an elderly person, a person with a disability or a person who is in a helpless state, or a person suffering from a mental disorder, in particular, mental retardation, has a mental disability, as well as committing a criminal offense against a minor child or in the presence of a child ; committing a criminal offense against a spouse or ex-spouse or another person with whom the offender is (was) in a family or close relationship; committing a criminal offense against a woman who was known to the perpetrator to be pregnant; committing a criminal offense against a person who is financially, professionally or otherwise dependent on the offender; committing a criminal offense using a minor or a person suffering from a mental illness or insanity; commission of a crime with particular cruelty; committing a crime using conditions of war or state of emergency, other extraordinary events; committing a crime in a generally dangerous way; committing a criminal offense by a person who is in a state of alcohol intoxication or in a state caused by the use of narcotics or other intoxicating agents.
Reply to paragraph 12 of the list of issues
In accordance with the second part of Article 146-1 of the Criminal Code, criminal liability is provided for the issuance of an order or order to commit the actions specified in the first part of this article, or the failure of the manager, who became aware of the actions specified in the first part of this article, to take measures for their termination and failure to notify the competent authorities about the crime.
III. Judiciary and cooperation in criminal cases (Articles 8–15)
Reply to paragraph 13 of the list of issues
Article 146-1 of the Criminal Code provides that the actions provided for in part one of this article are punishable by imprisonment for a term of three to five years, and the actions provided for in part two are punishable by imprisonment for a term of five to seven years.
Part one of Article 49 of the Criminal Code stipulates that a person is released from criminal liability if the following time periods have passed from the date of the commission of the criminal offense to the date of entry into force of the sentence: five years - in the case of a minor crime, except for the case provided for in paragraph 2 of this part; ten years - in case of committing a serious crime.
According to parts three and four of Article 12 of the Criminal Code, a non-serious crime is an act (action or omission) provided for by the Criminal Code, for the commission of which the main punishment is prescribed in the form of a fine in the amount of no more than ten thousand tax-free minimum incomes of citizens or imprisonment for a term of no more than five years.
A serious crime is an act (act or inaction) provided for by the Criminal Code, for the commission of which the main punishment is prescribed in the form of a fine in the amount of no more than twenty-five thousand non-taxable minimum incomes of citizens or imprisonment for a term of no more than ten years.
Part one of Article 80 of the Criminal Code stipulates that a person is released from serving a sentence if, from the date of entry into force of the indictment, it has not been executed within the following terms: five years - in the case of a sentence of imprisonment for a minor crime, as well as when sentenced to imprisonment for no more than five years for a serious crime; ten years - in the case of a sentence of imprisonment for a term of more than five years for a serious crime, as well as in the case of a sentence of imprisonment for a term of not more than ten years for a particularly serious crime.
Reply to paragraph 14 of the list of issues
In the part of the existing legislation regarding the competence of the state to exercise jurisdiction over enforced disappearance in the context of the implementation of clauses 1 and 2 of Art. 9 of the Convention states that persons who have committed criminal offenses on the territory of Ukraine are subject to criminal liability under the Criminal Code. A criminal offense is recognized as having been committed on the territory of Ukraine, if it was started, continued, completed or terminated on the territory of Ukraine. A criminal offense is recognized as having been committed on the territory of Ukraine, if its perpetrator or at least one of the accomplices acted on the territory of Ukraine (Article 6 of the Criminal Code - the validity of the law on criminal liability for a criminal offense committed on the territory of Ukraine).
Citizens of Ukraine and stateless persons permanently residing in Ukraine, who have committed criminal offenses outside its borders, are subject to criminal liability under the Criminal Code, unless otherwise provided by international treaties of Ukraine, the binding consent of which has been granted by the Verkhovna Rada of Ukraine. If the persons specified in the first part of this article have been punished outside of Ukraine for the committed criminal offenses, they cannot be held criminally liable in Ukraine for these criminal offenses (Article 7 of the Criminal Code - the validity of the law on criminal liability for criminal offenses committed citizens of Ukraine or stateless persons outside Ukraine).
Foreigners or stateless persons who do not permanently reside in Ukraine, who have committed criminal offenses outside its borders, are subject to criminal liability in Ukraine in cases provided for by international treaties or if they have committed grave or particularly grave crimes against the rights and freedoms of citizens of Ukraine provided for by the Criminal Code or the interests of Ukraine. Foreigners or stateless persons who do not permanently reside in Ukraine are also subject to liability in Ukraine according to the Criminal Code, if they committed outside Ukraine, in complicity with officials who are citizens of Ukraine, any criminal offense provided for in Articles 368, 368-3, 368-4, 369 and 369-2 of the Criminal Code, or if they offered, promised, gave an undue benefit to such officials, or accepted an offer, promise of undue benefit or received such a benefit from them (Article 8 of the Criminal Code - the validity of the law on criminal responsibility for criminal offenses committed by foreigners or stateless persons outside Ukraine).
In the part of the existing legislation regarding the competence of the state to exercise jurisdiction over the crime of enforced disappearance in relation to the extradition or transfer of a suspect to another state in the context of the implementation of clause 2 of Art. 9 of the Convention states that Article 10 of the Criminal Code of Ukraine regulates the issue of resolving the issue of criminal liability of persons who are subject to criminal liability under the laws of a foreign state and are on the territory of Ukraine, and the execution of sentences handed down by foreign courts or international judicial institutions, and provides for the following.
Citizens of Ukraine who have committed crimes outside Ukraine cannot be extradited to a foreign state for criminal prosecution and trial.
Foreigners and stateless persons who have committed crimes outside Ukraine and are on the territory of Ukraine may be extradited to a foreign state for criminal prosecution and trial.
Ukraine may take over criminal proceedings, in which the judicial authorities of a foreign state have not passed a verdict, against citizens of Ukraine and foreigners who have committed crimes outside Ukraine and are on the territory of Ukraine, but who cannot be extradited to a foreign state or whose extradition is refused, if the act , in connection with which the transfer of criminal proceedings is requested, is recognized as a crime in accordance with this Code.
Execution of a sentence of a foreign court or an international judicial institution in Ukraine is possible if the act, as a result of which the sentence was passed, is recognized as a criminal offense in accordance with this Code or would be a criminal offense if it was committed on the territory of Ukraine.
According to Clause 2, Part 1, Art. 541 of the Criminal Procedure Code of Ukraine extradition of a person (extradition) - extradition of a person to the state whose competent authorities are looking for this person for criminal prosecution or execution of a sentence. Extradition includes: an official request to establish the place of stay in the territory of the requested state of the person to be extradited, and the extradition of such a person; verification of circumstances that may prevent issuance; making a decision upon request; the actual transfer of such a person under the jurisdiction of the requesting state.
In accordance with Part 3 of Art. 589 of the Criminal Procedure Code of Ukraine, in case of refusal to extradite on the grounds of citizenship and refugee status or for other reasons that do not exclude criminal proceedings, at the request of the competent body of a foreign state, the Office of the Prosecutor General orders the conduct of a pre-trial investigation against this person in accordance with the procedure provided for by the Criminal Procedure Code of Ukraine.
In accordance with Part 1 of Art. 602 of the Criminal Procedure Code of Ukraine, the judgment of a court of a foreign state may be recognized and enforced on the territory of Ukraine in the cases and to the extent stipulated by an international treaty, the binding consent of which has been given by the Verkhovna Rada of Ukraine.
Judgments of foreign courts passed in absentia (in absentia), i.e. without the person's participation during the criminal proceedings, are not enforceable in Ukraine, except for cases when the convicted person was served with a copy of the judgment and given the opportunity to appeal it. A request for the execution of a judgment of a court of a foreign state may be refused if such execution contradicts Ukraine's obligations under Ukraine's international treaties.
Reply to paragraph 15 of the list of issues
For any person convicted of the crime of enforced disappearance and the independence and impartiality of courts, it is noted that paragraphs 1 - 4 of the first part of Article 7 of the Criminal Procedure Code stipulate that the content and form of criminal proceedings must comply with the general principles of criminal proceedings, which include, in particular, in particular, the rule of law, legality, equality before the law and the court, respect for human dignity.
The first part of Article 30 of the Criminal Procedure Code establishes that in criminal proceedings, justice is administered only by a court in accordance with the rules provided for by the Criminal Procedure Code.
In accordance with Articles 5 and 6 of the Law of Ukraine "On the Judiciary and the Status of Judges ", justice in Ukraine is administered exclusively by courts and in accordance with judicial procedures defined by law.
In administering justice, the courts are independent from any illegal influence. Courts administer justice on the basis of the Constitution and laws of Ukraine and on the principles of the rule of law.
Interfering with the administration of justice, influencing the court or judges in any way, disrespecting the court or judges, collecting, storing, using and disseminating information orally, in writing or in any other way with the aim of discrediting the court or influencing the impartiality of the court, calls for non-compliance court decisions are prohibited and result in liability established by law.
Pursuant to Article 48 of the said Law, a judge is independent from any illegal influence, pressure, or interference in his activities related to the administration of justice.
The judge administers justice on the basis of the Constitution and laws of Ukraine, guided by the principle of the rule of law. Interference in the activities of 2 judges in the administration of justice is prohibited and has the consequence of liability established by law.
The judge is not obliged to give any explanations regarding the substance of the cases pending before him, except for cases established by law.
A judge is obliged to contact the High Council of Justice and the Prosecutor General with a notification of interference in his activities as a judge in the administration of justice.
Bodies of state power, bodies of local self-government, their officials and employees, as well as natural and legal entities and their associations are obliged to respect the independence of the judge and not encroach on it.
The search for missing persons is one of the main powers of the police, which is provided for in Article 23 of the Law of Ukraine "On the National Police".
In addition, according to subparagraph 11 of paragraph 2 of Article 17 of the Law of Ukraine "On the Legal Status of Persons Disappeared Under Special Circumstances", the National Police is one of the central bodies of the executive power, authorized to register and search for persons who have disappeared due to special circumstances.
According to paragraph 3 of the mentioned article, the bodies authorized to search for persons who have gone missing under special circumstances, as well as to perform other functions related to the implementation of this Law, include the National Police of Ukraine and the bodies that carry out operational and investigative activities specified by the Law of Ukraine "On operative investigative activity".
According to Article 5 of the Law of Ukraine "On the National Police", the police in the course of its activities interacts with law enforcement agencies and other state authorities, as well as local self-government bodies in accordance with the law and other legal acts.
Thus, the National Police of Ukraine has established cooperation with representatives of the National Information Bureau, the Armed Forces of Ukraine and the Ministry of Health regarding the exchange of information about missing persons by conducting further checks to ensure the registration of such facts.
Reply to paragraph 16 of the list of issues
Removal of a person from office is one of the measures to ensure criminal proceedings provided for in Article 131 of the Criminal Procedure Code of Ukraine (hereinafter - the Criminal Procedure Code of Ukraine).
Accordingly, Art. 155 of the Criminal Procedure Code of Ukraine, the prosecutor, the investigator, in agreement with the prosecutor, has the right to apply to the investigating judge during the pre-trial investigation or to the court during the court proceedings with a request to remove the person from the position, in which the circumstances that give grounds to believe that the suspect's stay in the position are indicated in particular , the accused contributed to the commission of a criminal offense, or those that give grounds to believe that the suspect, the accused, while in office, will destroy or forge things and documents that are of essential importance for the pre-trial investigation, will influence witnesses and other participants in the criminal proceedings by illegal means, or will unlawfully obstruct the criminal proceedings in another way.
Mechanisms to ensure that law enforcement or security agencies do not participate in the investigation of a case of enforced disappearance, if one or more of their officials are suspected of involvement in the commission of a crime, are defined by Articles 216 (Investigation) and 218 (Place of pre-trial investigation) of the Criminal Procedure Code of Ukraine.
Reply to paragraph 17 of the list of issues
According to Clause 5 of the first part of Article 56 of the Criminal Procedure Code, during criminal proceedings, the victim has the right, if there are appropriate grounds, to provide security for himself, his close relatives or family members, property and housing.
Clause 3 of part six of Article 206 of the Criminal Procedure Code stipulates that if, during any court session, a person declares the use of violence against him during detention or detention in an authorized body of state power, a state institution (a body of state power, a state institution that is granted the right by law to detain persons), the investigating judge is obliged to record such a statement or accept a written statement from a person and take the necessary measures to ensure the safety of the person in accordance with the law.
Clause 6 of the first part of Article 303 of the Criminal Procedure Code establishes that such decisions, actions or inactions of the investigator, inquirer or prosecutor may be appealed during the pre-trial proceedings decisions, actions or inactions of the investigator, inquirer or prosecutor during the application of security measures - by persons to whom the measures may be applied security provided by law.
The grounds and procedure for applying security measures are defined by the Law of Ukraine "On Ensuring the Security of Persons Taking Part in Criminal Proceedings".
Reply to paragraph 18 of the list of issues
In terms of issues regarding extradition and extradition agreements and the application of any restrictions or conditions regarding legal aid in the context of the implementation of Articles 13, 14, 15, Clause 3 of Art. 25 of the Convention states that according to the criminal procedural legislation of Ukraine, the procedure for sending a request to another state, the procedure for consideration by an authorized (central) body of Ukraine of a request from another state or an international judicial institution for such assistance, and the procedure for executing such a request are determined by the Code of Criminal Procedure of Ukraine and current international treaties of Ukraine. In the absence of an international treaty of Ukraine, international legal assistance or other cooperation may be provided based on the request of another state or requested on the basis of reciprocity (Articles 543, 544 of the Criminal Procedure Code of Ukraine).
On the territory of Ukraine, in order to fulfill the request for the provision of international legal assistance, any procedural actions provided for by the Criminal Code of Ukraine or an international treaty may be carried out (Article 561 of the Criminal Code of Ukraine).
According to Art. 557 of the Criminal Procedure Code of Ukraine, the requesting party may be refused a request for legal assistance in cases stipulated by an international treaty of Ukraine. In the absence of an international treaty of Ukraine, the request must be refused if:
1. The execution of the request will contradict the constitutional principles or may harm the sovereignty, security, public order or other interests of Ukraine;
2. The request relates to an offense for which a decision has been made by a court in Ukraine against the same person, which has entered into force;
3. The requesting party does not ensure reciprocity in this area;
4. The request concerns an act that is not a criminal offense according to the law of Ukraine on criminal liability;
5. There are sufficient grounds to believe that the request is aimed at persecuting, condemning or punishing a person based on his race, skin color, political, religious and other beliefs, gender, ethnic and social origin, property status, place of residence, language or other characteristics;
6. The request concerns a criminal offense that is the subject of a pre-trial investigation or trial in Ukraine.
In the part of the issue of extradition, it is noted that the request of the competent body of a foreign state to extradite a person can be considered if, according to the law of Ukraine, at least one of the crimes in connection with which extradition is requested is punishable by imprisonment for a maximum term of less than one year or the person has been sentenced to imprisonment and the unserved term is at least four months (Part 2 of Article 573 of the Criminal Procedure Code of Ukraine).
According to Art. 589 of the Criminal Procedure Code of Ukraine, extradition of a person to a foreign state is refused if:
1. The person in respect of whom a request for extradition was received, according to the laws of Ukraine at the time of the decision on extradition (extradition), is a citizen of Ukraine;
2. The crime for which extradition is requested is not punishable by imprisonment under the law of Ukraine;
3. The statute of limitations provided for by the law of Ukraine for bringing a person to criminal responsibility or executing a sentence for the crime for which extradition is requested has expired;
4. The competent body of a foreign state did not provide, at the request of the central body of Ukraine, additional materials or data, without which it is impossible to make a decision on the request for extradition (extradition);
5. Surrender of a person (extradition) contradicts Ukraine's obligations under Ukraine's international treaties;
(5. - 1) There are reasonable grounds to believe that handing over a person (extradition) is contrary to the interests of Ukraine's national security;
6. There are other grounds stipulated by the international treaty of Ukraine.
A person who has been granted the status of a refugee, the status of a person in need of additional protection, or has been granted temporary protection in Ukraine cannot be extradited to the state from which he is recognized as a refugee, as well as to a foreign state where his health, life or freedom there is danger due to race, creed (religion), nationality, citizenship (citizenship), belonging to a certain social group or political beliefs, except for the cases stipulated by the international treaty of Ukraine.
In the case of refusal to extradite on the grounds of citizenship and refugee status or for other reasons that do not exclude criminal proceedings, at the request of the competent body of a foreign state, the Office of the Prosecutor General orders the conduct of a pre-trial investigation against this person in accordance with the procedure provided for by the Code of Criminal Procedure of Ukraine.
In the part of the issue of taking over criminal proceedings in Ukraine, it is noted that criminal proceedings, in which the judicial authorities of a foreign state have not passed a sentence, can be taken over by Ukraine under the following conditions: 1) the person who is brought to criminal responsibility is a citizen of Ukraine and resides in it territories; 2) the person who is brought to criminal liability is a foreigner or a person without citizenship and is in the territory of Ukraine, and his extradition is impossible according to the Code of Criminal Procedure of Ukraine or an international treaty of Ukraine or his extradition is refused; 3) the requesting state has provided guarantees that, in the event of a verdict being passed in Ukraine, the person charged with criminal liability will not be subject to state prosecution in the requesting state for the same criminal offense; 4) the act to which the request relates is a criminal offense under the law of Ukraine on criminal responsibility (Part 2 of Article 595 of the Criminal Procedure Code of Ukraine).
Criminal proceedings cannot be taken over if: 1) the requirements of the second part of Article 595 of the Criminal Code of Ukraine or an international agreement, the binding consent of which has been given by the Verkhovna Rada of Ukraine, have not been complied with; 2) a court has acquitted the same person in connection with the same criminal offense in Ukraine; 3) in connection with the same criminal offense in Ukraine, a court has passed a guilty verdict against the same person, according to which the punishment has already been served or is being served; 4) regarding the same person, in connection with the same criminal offense in Ukraine, criminal proceedings have been closed or he has been released from serving a sentence in connection with a pardon or amnesty; 5) proceedings regarding the declared criminal offense cannot be carried out due to the expiration of the statute of limitations (Article 596 of the Criminal Procedure Code of Ukraine).
In the part of the issue regarding the execution of judgments, it is noted that the judgment of a court of a foreign state can be recognized and executed on the territory of Ukraine in the cases and to the extent provided for by an international treaty, the consent of which has been given to the VRU.
When considering a request for the execution of a judgment of a court of a foreign state, the Ministry of Justice of Ukraine ascertains the existence of grounds provided for by an international treaty of Ukraine for its satisfaction. For this purpose, the Ministry of Justice of Ukraine may request the necessary materials and information in Ukraine or from a competent body of a foreign state.
Having established the compliance of the request for the recognition and enforcement of the judgment of the foreign court with the conditions stipulated by the international treaty of Ukraine, the Ministry of Justice of Ukraine sends to the court a petition for the recognition and enforcement of the judgment of the foreign court and transfers the available materials.
Judgments of foreign courts passed in absentia (in absentia), i.e. without the person's participation during the criminal proceedings, are not enforceable in Ukraine, except for cases when the convicted person was served with a copy of the judgment and given the opportunity to appeal it. A request for the execution of a judgment of a court of a foreign state may be refused if such execution contradicts Ukraine's obligations under Ukraine's international treaties.
In the cases provided for by an international treaty, the binding consent of which has been given by the VRU, if the sentence of a court of a foreign state provides for a punishment in the form of imprisonment, the Ministry of Justice of Ukraine sends a certified copy of the request provided for in this article to the prosecutor for an appeal to the investigating judge with a request for application preventive measure pending the decision on the execution of the judgment of the court of a foreign state (parts 1, 4, 5, 7, 9 of Article 602 of the Criminal Procedure Code of Ukraine).
When considering the request of the Ministry of Justice of Ukraine to enforce the judgment of the court of a foreign state, the court determines whether the conditions stipulated by the international treaty, the binding consent of which has been given by the Verkhovna Rada of Ukraine, or by this chapter, have been met. At the same time, the court does not verify the factual circumstances established by the judgment of the court of a foreign state, and does not resolve the issue of the person's guilt. If it is necessary to carry out an additional inspection, the court can issue a decision on postponing the review and obtaining additional materials.
Based on the results of the trial, the court issues a decision: 1) on the execution of the judgment of the court of a foreign state in full or in part. At the same time, the court determines what part of the punishment can be carried out in Ukraine, guided by the provisions of the Criminal Code of Ukraine, which provide for criminal liability for the crime in connection with which the sentence was passed, and decides on the application of a preventive measure until the decision enters into force; or 2) on refusal to execute the judgment of the court of a foreign state.
The period during which the person was in custody in Ukraine in connection with the consideration of the request for the execution of the sentence of the court of a foreign state is included in the total term of serving the sentence. In the event of a decision on the execution of a judgment of a court of a foreign state, the court may simultaneously make a decision on the selection of a preventive measure against a person (parts 3-7 of Article 603 of the Criminal Procedure Code of Ukraine).
The decision on the execution of the judgment of the court of a foreign country is applied for execution in accordance with the Code of Criminal Procedure of Ukraine. The Ministry of Justice of Ukraine informs the requesting party about the results of the execution of the judgment of the court of a foreign state (Article 604 of the Criminal Code of Ukraine).
For reference:
“Regarding international treaties of Ukraine on international cooperation during criminal proceedings”.
Information on Ukraine's current bilateral and multilateral international treaties on legal assistance in civil and criminal cases (not only regarding crimes of enforced disappearances, but regarding any crimes) in relations with 195 states (separately by state) is posted on the official website Ministry of Justice of Ukraine at the link: http://surl.li/rysean .
Since the entry into force of the International Convention for the Protection of All Persons from Enforced Disappearance (September 13, 2015) for Ukraine, the following international treaties on extradition (extradition) have been concluded between Ukraine and other member states of the Convention, which apply to all crimes:
On a bilateral level:
Agreement between Ukraine and the Democratic Socialist Republic of Sri Lanka on extradition of offenders (date of conclusion 25.06.2016);
Agreement between Ukraine and the Republic of Argentina on the extradition of offenders (August 6, 2018);
Agreement between Ukraine and the Republic of Kazakhstan on extradition (October 29, 2018);
Agreement between Ukraine and the Kingdom of Morocco on legal assistance in criminal cases and extradition (October 22, 2019);
At the multilateral level (Ukraine has ratified the following multilateral international treaties on extradition):
Convention on Extradition (Organization of American States) (October 18, 2022);
Third Additional Protocol to the European Convention on Extradition of Offenders (June 7, 2017);
The fourth additional protocol to the European Convention on the Extradition of Offenders (June 7, 2017).
IV.Measures to prevent enforced disappearances (Articles 16–23)
Reply to paragraph 19 of the list of issues
In the part of the issue of extradition (extradition) of criminals from Ukraine to foreign countries, it is noted that in accordance with Article 25 of the Constitution of Ukraine, a citizen of Ukraine cannot be expelled from the borders of Ukraine or extradited to another state.
In accordance with Part 2 of Art. 589 of the Criminal Procedure Code of Ukraine, a person who has been granted the status of a refugee, the status of a person in need of additional protection, or has been granted temporary protection in Ukraine cannot be extradited to the state from which he is recognized as a refugee, as well as to a foreign state where his health , life or freedom is threatened by danger on the grounds of race, creed (religion), nationality, citizenship (citizenship), belonging to a certain social group or political beliefs, except for the cases stipulated by the international treaty of Ukraine.
In accordance with Part 3 of Art. 589 of the Criminal Procedure Code of Ukraine, in case of refusal to extradite on the grounds of citizenship and refugee status or for other reasons that do not exclude criminal proceedings, at the request of the competent body of a foreign state, the Office of the Prosecutor General orders the conduct of a pre-trial investigation against this person in accordance with the procedure provided for by the Criminal Procedure Code of Ukraine.
A person for whom the issue of extradition to a foreign country is being considered has the right: 1) to know in connection with which criminal offense the request for his extradition (extradition) was received; 2) to have a defense attorney and see him under conditions that ensure confidentiality of communication, for the presence of a defense attorney during interrogations; 3) in the case of detention - upon notification of close relatives, family members or other persons about the detention and place of stay; 4) participate in court consideration of issues related to her detention and request for her extradition; 5) read the extradition request or receive a copy of it; 6) to appeal the decision on detention, on the satisfaction of the request for extradition (extradition); 7) to express his opinion regarding the request for extradition (extradition) at the court hearing; 8) at any time before making a decision on its extradition (extradition), give consent to extradition (extradition) in order to apply the procedure of extradition (extradition) in a simplified manner; 9) at the same time as giving consent to surrender (extradition), refuse to apply the special rule regarding the limits of criminal responsibility (Part 1 of Article 581 of the Criminal Procedure Code of Ukraine).
The central authorities of Ukraine regarding extradition (extradition), unless otherwise stipulated by an international treaty of Ukraine, are the Office of the General Prosecutor and the Ministry of Justice of Ukraine, respectively. The Office of the Prosecutor General is the central body of Ukraine regarding the extradition (extradition) of suspects accused in criminal proceedings during the pretrial investigation, and the Ministry of Justice of Ukraine regarding the extradition (extradition) of defendants convicted in criminal proceedings during court proceedings or the execution of a sentence (part 1-3 of Article 575 of the Criminal Procedure Code of Ukraine).
The central body of Ukraine notifies the competent body of a foreign state about its decision, as well as the person in respect of whom it was made. In the case of a decision on extradition (extradition), such a person is given a copy of it. If the specified decision is not appealed to the court within ten days, the actual extradition of this person to the competent authorities of a foreign state is organized. A decision to extradite a person (extradition) cannot be made if such a person has submitted an application to recognize him as a refugee or a person in need of additional protection, or has used, in accordance with the law, the right to appeal the decision regarding the specified statuses, before the final consideration of the application, in order, established by the legislation of Ukraine. Information about the person's submission of the specified applications or appeals against the relevant decisions is not provided to the foreign state that sent the request (Part 2-4 of Article 590 of the Criminal Procedure Code of Ukraine).
According to Art. 591 "Procedure for appeal of a decision on the extradition of a person (extradition)" of the Criminal Procedure Code of Ukraine a decision on the extradition of a person (extradition) may be appealed by the person in respect of whom it was made, his defender or legal representative to the investigating judge, within whose territorial jurisdiction such a person is detained. If a preventive measure not related to detention is applied to a person, a complaint against the decision to extradite such a person (extradition) may be submitted to the investigative judge within whose territorial jurisdiction the relevant central body of Ukraine is located.
If a person in custody files a complaint against the extradition decision, the authorized official of the place of detention immediately sends the complaint to the investigating judge and informs the relevant regional prosecutor's office about it.
The review of the complaint is carried out by the investigating judge within five days from the day of its receipt in court. The trial is conducted with the participation of the prosecutor who conducted the extradition check, the person in respect of whom the extradition decision was made, his defense counsel or legal representative, if he participates in the proceedings. When considering a complaint, the investigating judge does not examine the issue of guilt and does not check the legality of procedural decisions made by the competent authorities of a foreign state in the case of the person for whom extradition (extradition) has been requested. Based on the results of the review, the investigating judge issues a decision, which: 1) leaves the complaint unsatisfied; 2) satisfies the complaint and cancels the decision on extradition.
The decision of the investigating judge may be challenged in the appeal procedure by the prosecutor, the person against whom the decision was made, his defense attorney or legal representative. Filing an appeal against the decision of the investigating judge stops its entry into legal force and its execution. The decision of the appellate court can be appealed in the cassation procedure only by the prosecutor on the grounds of incorrect application by the court of the norms of international treaties of Ukraine, if the cancellation of the decision on extradition (extradition) prevents further proceedings against the person whose extradition was requested by a foreign state.
For the purpose of actual transfer of the person in respect of whom a decision on extradition (extradition) has been made, the central body of Ukraine, after this decision enters into force, issues appropriate instructions (sends an appeal) to the competent authorities of Ukraine. (Part 1 of Article 593 of the Criminal Procedure Code of Ukraine).
Regarding the issue of the transfer of convicted foreign citizens from Ukraine to further serve their sentence in the state of which they are citizens, it is noted that in accordance with the first part of Article 607 of the Criminal Code of Ukraine, the issue of the transfer of persons sentenced to imprisonment by the courts of Ukraine to serve their sentence in the states, whose citizens they are, is decided by the Ministry of Justice of Ukraine.
According to the first part of Article 605 of the Criminal Code of Ukraine, the grounds for consideration of the issue of the transfer of a convicted person to serve a sentence are a request from an authorized (central) body of a foreign state, an appeal by the convicted person, his legal representative or close relatives or family members, as well as other circumstances provided for a law of Ukraine or an international treaty, the consent of which is binding has been given by the Verkhovna Rada of Ukraine.
According to parts one-three of Article 606 of the Criminal Procedure Code of Ukraine, a person convicted by a court of Ukraine may be transferred to serve a sentence in another state under the following conditions: 1) if this person is a citizen of the state where the sentence is executed; 2) if the verdict has entered into legal force; 3) if at the time of receiving the transfer request, the convicted person must serve a sentence for at least six months or if he has been sentenced to imprisonment for an indefinite period; 4) if the convict agrees to the transfer or, taking into account his age or physical or mental condition, the legal representative of the convict agrees; 5) if the criminal offense, as a result of which the sentence was passed, is a crime according to the legislation of the state of execution of the sentence or would be a crime if committed on its territory, for the commission of which a penalty of imprisonment may be imposed; 6) if the property damage caused by a criminal offense has been compensated, and if any - also procedural costs; 7) if the state of passing the sentence and the state of execution of the sentence agree to the transfer of the convicted person.
Before deciding on the transfer of a convicted person to serve a sentence from Ukraine to a foreign state, the latter must provide guarantees that the convicted person will not be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
The consent of the convicted person or his legal representative must be expressed in writing with awareness of all the legal consequences of such consent. The convicted person or his legal representative has the right to receive legal assistance in the form of legal advice regarding the consequences of his consent. The consent of the convicted person is not required, if at the time of the resolution of the issue in accordance with the provisions of this chapter, he is in the territory of the state of his citizenship.
The Ministry of Justice of Ukraine may refuse to hand over a convicted person in case of non-compliance with at least one of the conditions provided for by parts one and three of Article 606 of the Criminal Code of Ukraine (part 4 of Article 606 of the Criminal Code of Ukraine).
A convicted person who consented to transfer to a foreign country for further serving of sentence may refuse such transfer at any time before crossing the state border of Ukraine. In the case of receiving information about such a refusal, the Ministry of Justice of Ukraine immediately stops consideration of the issue of transfer or, in appropriate cases, takes measures to stop the transfer (Part 7 of Article 606 of the Criminal Procedure Code of Ukraine).
Reply to paragraph 20 of the list of issues
According to the first part of Article 37 of the Law of Ukraine "On the National Police", the police is authorized to detain a person on the grounds, in the manner and for the time period determined by the Constitution of Ukraine, the Criminal Procedure Code of Ukraine (hereinafter - the Criminal Procedure Code of Ukraine) and the Code of Ukraine on Administrative Offenses, as well as other laws of Ukraine.
In order to prevent violations of criminal procedural legislation during the detention of persons suspected of committing crimes, the selection of a preventive measure in the form of detention and compliance with the established terms of detention, on October 1, 2018, the Ministry of Internal Affairs of Ukraine and the Ministry of Justice of Ukraine issued Order No. 806 /3105/5 "On the approval of the Instruction on measures to comply with the requirements of the law in the case of detention without a warrant of an investigating judge, a court of persons suspected of committing a crime, and the selection of preventive measures for suspects - detention during a pre-trial investigation", which is registered with the Ministry of Justice of Ukraine on October 22, 2018 under No. 1190/32642.
In accordance with the provisions of the Criminal Procedure Code of Ukraine, the investigators ensure clarification of the suspects' rights "upon the first request to have a defense attorney and meet with him before the first interrogation in compliance with the conditions that ensure the confidentiality of communication, as well as after the first interrogation - to have such meetings without limiting their number and duration; on the defense counsel's participation in the interrogation and other procedural actions; on the refusal of the defense counsel at any moment of the criminal proceedings; to obtain legal aid of a defender at the expense of the state in cases provided for by the Code of Criminal Procedure of Ukraine and by the law regulating the provision of free legal aid, including in connection with the lack of funds to pay for it.".
On March 21, 2024, the Verkhovna Rada of Ukraine adopted Law of Ukraine No. 3623- IX "On Amendments to the Criminal Procedure Code of Ukraine on Strengthening the Effectiveness of the Functioning of the Institute of Officials Responsible for the Stay and Ensuring the Rights of Detainees", which includes the duties of the person responsible for stay and ensuring compliance with the rights of detainees, including conducting a survey regarding the circumstances of detention, the use of coercive measures by an authorized official, conducting a personal search and confiscation of property, notifying the detainee of the grounds for detention and his rights, notifying third parties of the fact of detention, the state of health of the detainee, and also in the case of detection of violations of the rights of the detained person, facts of torture, cruel or inhumane treatment of him, to immediately take measures to stop them and to report such facts to the head of the body, which includes the division of the pre-trial investigation body, and to notify the prosecutor in writing.
The National Police and the Security Service of Ukraine have no information on the detention in secret places of deprivation of liberty, including in Kharkiv, between 2014 and 2016 of detainees accused of crimes related to the armed conflict in eastern Ukraine.
At the same time, the National Police of Ukraine and the Security Service of Ukraine are investigating numerous facts of the functioning of torture camps and places of illegal detention of citizens in the temporarily occupied territory of Ukraine.
To date, only the National Police of Ukraine has identified 101 places in the de-occupied territories of Sumy, Chernihiv, Kyiv, Kharkiv, Donetsk, Kherson, and Mykolaiv regions, as well as in the occupied territories of Donetsk, Zaporizhia, and Kherson regions (66 in de-occupied territories and 66 in occupied territories). 35) in which the Russians illegally detained/are detaining and torturing citizens.
Based on these facts, only the investigators of the National Police of Ukraine initiated (or investigated) 60 criminal proceedings (21 - Kharkiv (1 - GSU), 18 - Kherson, 8 - Donetsk (3 - GSU), 5 - Zaporizhzhia, 3 - Kyiv (1 - GSU) ), 3 - Chernihiv region, 2 - Sumy region), of which 25 criminal proceedings were transferred to the investigative bodies of the Security Service of Ukraine (10 - Kherson region, 6 - Kharkiv region, 4 - Zaporizhia region, 2 - Sumy region and Chernihiv region, 1 - Kyiv region).
In 35 criminal proceedings, the pre-trial investigation is currently carried out by the investigators of the National Police.
Reply to paragraph 21 of the list of issues
Article 59 of the Constitution of Ukraine guarantees everyone the right to professional legal assistance. In cases provided by law, this assistance is provided free of charge.
The content of the right to free legal aid, the grounds and procedure for providing such aid, the subjects of the relevant right, are determined by the Law of Ukraine "On Free Legal Aid" (hereinafter - the Law).
One of the principles on which the state policy in the field of providing free legal aid in Ukraine is based is the availability of such aid for all categories of persons who have the right to receive it (Article 5 of the Law).
Today, all persons under the jurisdiction of Ukraine have the right to free primary legal assistance, which includes such types of legal services as: provision of legal information, consultations and clarifications on legal issues; drawing up statements, complaints and other legal documents; assistance in ensuring access to secondary legal aid and mediation (Article 8 of the Law).
The list of subjects entitled to free secondary legal assistance (Defense; representation of interests in courts, other state bodies; drafting of procedural documents) is defined by the article Yes, currently the right to free secondary legal assistance is available to the following persons:
To whom administrative detention or administrative arrest was applied;
Who, in accordance with the provisions of criminal procedural legislation, are considered detainees;
In respect of which a preventive measure in the form of detention was chosen;
In criminal proceedings in respect of which, in accordance with the provisions of the Criminal Procedure Code of Ukraine (hereinafter referred to as the Criminal Procedure Code of Ukraine), the defense counsel is engaged by an investigator, prosecutor, investigating judge or court to perform the defense as assigned or conduct a separate procedural action.
The mechanism of early access of detained persons to free secondary legal aid is determined by the Procedure for informing centers for the provision of free legal aid about cases of detention, administrative arrest or the application of a preventive measure in the form of detention (hereinafter - the Procedure for informing), approved by the resolution of the Cabinet of Ministers of Ukraine dated December 28, 2011, year No. 1363.
For reference:
“In accordance with the provisions of the Information Procedure, immediately after the actual detention of a person, the subjects of information submission (police authorities and other authorities authorized to carry out detention) notify the regional/interregional center for the provision of free legal aid by telephone or fax - Center) information about the person who was detained.
Within one hour from the moment of registration of such a notification, the Center appoints a lawyer to provide free secondary legal assistance to the detained person by issuing him a corresponding mandate. Within an hour of receiving the mandate, the appointed lawyer arrives at such a person to conduct a confidential meeting with him.
It should be noted that the reception and processing of reports on the detention of persons is carried out 24 hours a day; in all cases, lawyers are appointed to detained persons regardless of any influence from law enforcement and judicial authorities; lawyers must arrive to detained persons immediately (within an hour, and in exceptional cases - within six hours from the moment of issuing the order).
In addition, the Notification Procedure provides that the detained person, his close relatives or family members can report the detention to the center independently. Also, the subject of the Center's notification is the Human Rights Commissioner of the Verkhovna Rada of Ukraine.
In the period from 2013 to June 2024, the Centers issued 992,401 orders to appoint a lawyer to detained persons, of which 891,080 were orders to appoint a defense attorney to detained persons for committing criminal offenses and 101,321 were orders to appoint a lawyer to persons for committing administrative offenses and application of administrative arrest.”.
The procedure for ensuring the right of the suspect, the accused to defense is determined by the provisions of the Code of Criminal Procedure of Ukraine and the Law.
According to Article 49 of the Criminal Procedure Code of Ukraine, the engagement of a defense attorney by an investigator, prosecutor, investigating judge or court to provide defense by appointment is carried out by entrusting the relevant body (institution), authorized by law to provide free legal aid, to appoint a lawyer and ensure his arrival at the times specified in the resolution (resolution) time and place for participation in criminal proceedings.
In accordance with Article 19 of the Law, in the case of receiving a resolution of an investigator, investigator, prosecutor, a decision of an investigating judge, a court on the involvement of a defense attorney to provide defense as assigned or to conduct a separate procedural action of the persons specified in clauses 7, 8 of the first part of Article 14 of the Law, the Center shall must immediately make a decision on providing free secondary legal aid.
According to statistical data, in the period from 2013 to June 2024, the Centers issued 513,380 orders for the provision of free secondary legal assistance to persons in criminal proceedings in respect of which, in accordance with the provisions of the Criminal Procedure Code of Ukraine, the defender is engaged by an investigator, prosecutor, investigating judge or court to provide defense as assigned.
Also, according to Article 14 of the Law, the subjects of the right to free secondary legal aid are:
Sentenced to punishment in the form of life imprisonment, imprisonment for a certain period, detention in a disciplinary battalion of military personnel or restriction of freedom;
Other vulnerable categories of the population, in particular people with low income; children; internally displaced persons; victims of human trafficking; victims of criminal offenses against sexual freedom and sexual integrity, torture or ill-treatment during hostilities or armed conflict; persons who, according to the Law of Ukraine "On Social and Legal Protection of Persons Deprived of Personal Freedom as a Result of Armed Aggression against Ukraine, and Members of Their Families" have been deprived of personal freedom as a result of armed aggression against Ukraine, etc.
To obtain appropriate legal services, a person must contact the nearest point of access to free legal aid (legal aid office) with an application and documents confirming that he belongs to one of the categories of persons defined by Article 14 of the Law.
Based on the results of consideration of such an appeal, the center will make a decision to provide the person with free secondary legal assistance and will appoint a lawyer and authorize an employee of the center to protect his rights and legal interests.
The system of free legal aid carries out systematic work in the direction of increasing the level of legal awareness of individuals regarding their basic rights and social guarantees, the procedure for their implementation and protection in case of violation, including the right to free legal aid.
Regarding citizens of Ukraine illegally detained in the temporarily occupied territories of Ukraine, the Russian Federation, we note that their rights to inform a family member or other chosen person about their detention, the right to a lawyer, are not respected and not guaranteed. Relatives of many imprisoned persons still do not know where their relatives are being held, this applies to persons in the TOT, as well as those who were taken from the TOT to an unknown direction in the Russian Federation.
Reply to paragraph 22 of the list of issues
In the part of the question regarding the right of persons to appeal to the court in the context of the implementation of sub-clause of clause 2 of Art. 17 of the Convention states that Article 24 of the Criminal Procedure Code (CPC) provides for the right to appeal procedural decisions, actions or inaction. Everyone is guaranteed the right to appeal procedural decisions, actions or inactions of the court, investigating judge, prosecutor, investigator in the manner prescribed by the Code of Criminal Procedure.
The right to review a verdict, a court decision concerning the rights, freedoms or interests of a person by a higher-level court in accordance with the procedure provided for by the Criminal Procedure Code is guaranteed, regardless of whether such a person participated in the trial.
According to Article 206 of the Criminal Procedure Code, every investigating judge of a court within whose territorial jurisdiction a person in custody is located has the right to issue a resolution obliging any state authority or official to ensure that the rights of such a person are respected.
If the investigating judge receives information from any sources that creates a reasonable suspicion that within the territorial jurisdiction of the court there is a person deprived of liberty in the absence of a court decision that has entered into force, or has not been released from custody after posting bail in the established Code of Criminal Procedure according to the procedure, he is obliged to issue a resolution obliging any state authority or official in whose custody the person is being held, to immediately deliver this person to the investigating judge to find out the reasons for the deprivation of liberty.
The investigating judge is obliged to release the person deprived of liberty, if the state authority or official in whose custody this person is kept does not provide a court decision that has gained legal force or does not prove the existence of other legal grounds for depriving the person of liberty.
Regardless of the presence of a request from the investigator, the prosecutor, the investigating judge is obliged to release the person, if the state authority or official, in whose custody the person was kept, does not prove:
1. The existence of legal grounds for detaining a person without a decision of an investigating judge or court;
2. Not exceeding the maximum term of detention;
3. No delay in bringing the person to court.
If, during any court session, a person declares that violence was used against him during detention or detention in an authorized body of state power, a state institution (a body of state power, a state institution authorized by law to detain persons), the investigating judge shall must record such a statement or accept a written statement from a person and:
1. Ensure an urgent forensic medical examination of the person;
2. Instruct the relevant body of pre-trial investigation to conduct a study of the facts stated in the person's statement;
3. Take the necessary measures to ensure the safety of the person in accordance with the law.
The investigating judge is obliged to act in accordance with the procedure provided for in part six of this article, regardless of the presence of a person's statement, if his appearance, condition or other circumstances known to the investigating judge give grounds for a well-founded suspicion of a violation of the requirements of the law during detention or detention in an authorized state body government, state institution.
The investigating judge has the right not to take the actions specified in part six of this article, if the prosecutor proves that these actions have already been taken or are being taken.
The investigating judge is obliged to take the necessary measures to provide the person who is deprived of his liberty with a lawyer and to postpone any proceedings in which such a person participates for the time necessary to provide the person with a lawyer, if he wishes to engage a lawyer or if the investigating judge decides, that the circumstances established during the criminal proceedings require the participation of a defense attorney.
According to Article 208 of the Criminal Procedure Code, an authorized official who has detained a person must immediately inform the detainee in a language understandable to him of the grounds for detention and of what crime he is suspected of committing, as well as explain the right to have a defense attorney, receive medical assistance, give explanations, testimony or not to say anything about the suspicion against him, immediately inform other persons about his detention and whereabouts in accordance with the provisions of Article 213 of the Criminal Procedure Code, demand verification of the validity of the detention and other procedural rights provided for by the Criminal Procedure Code.
In turn, the Russian Federation does not report all cases of detention of civilians in the temporarily occupied territories of Ukraine, refuses to provide information about their whereabouts even to their closest relatives. This leads to a violation of their rights, as they are deprived of the opportunity to exercise their right to a defense attorney in the cases incriminated against them and the right to meet their humanitarian needs.
With such actions, the Russian Federation once again demonstrates its contempt for the norms of international humanitarian law, which complicates the work of establishing the location of civilians who suffered as a result of the armed aggression of the Russian Federation against Ukraine.
Reply to paragraph 23 of the list of issues
According to the Decree of the Cabinet of Ministers of Ukraine of September 6, 2017 No. 608-r "Some issues of accounting of convicts and persons taken into custody", the Government supported the proposal of the Ministry of Justice of Ukraine regarding the introduction of record-keeping of convicts and persons taken into custody by creating a Unified Register of Convicts and Persons , taken into custody (hereinafter – the Register), and the Ministry of Justice of Ukraine is designated as its holder.
For reference:
“The purpose of creating the Register is, in particular, to ensure record keeping of convicts and persons taken into custody throughout the territory of Ukraine, prompt obtaining of information about convicts and persons taken into custody.
Pursuant to the aforementioned order of the Cabinet of Ministers of Ukraine, the Ministry of Justice of Ukraine issued order No. 2023/5 dated June 26, 2018 "On approval of the Procedure for the formation and maintenance of the Unified Register of Convicts and Persons Taken into Custody", registered in the Ministry of Justice of Ukraine on July 2, 2018 under No. 762/32214 (hereinafter referred to as the Procedure), which defines the procedure for forming, maintaining and using the information of the Register.
The order establishes that the Register is an information and communication system that ensures the collection, accumulation, protection, accounting and processing of information about convicts and persons taken into custody.
Clause 1 of Section III of the Procedure stipulates that the basis for entering into the Register information about convicts, persons taken into custody, and subjects of probation are court decisions, acts of pardon, acts of bodies and institutions for the execution of punishments, authorized bodies on probation issues.
The basis for entering information on persons convicted of criminal offenses against the sexual freedom and sexual integrity of a minor into the Unified Register of Persons Convicted of Crimes against the Sexual Freedom and Sexual Inviolability of a Minor , which is one of the modules of the Register (hereinafter referred to as the "ERZSN"), is a conviction of the court, which has entered into legal force and contains a decision to include information about the accused of committing a criminal offense against the sexual freedom and sexual integrity of a minor in the Criminal Code of Ukraine in accordance with the sixteenth paragraph of paragraph 2 of part four of Article 374 of the Criminal Procedure Code of Ukraine.
In accordance with paragraph 2 of Chapter III of the Procedure, one registration card is created for one person in the Register. Each registration card is assigned a unique number.
Clause 3 of Section III of the Procedure specifies that the following information shall be entered into the Register, in particular: general data, including surnames, first names and patronymics (if available), if necessary - additionally in English; date of birth (number, month, year); citizenship (information about lack of citizenship); about the death of a person; data on the accusation: the date of the person's arrest and the name of the body that carried out the arrest; the date of application of the preventive measure in the form of detention and the name of the body that applied the preventive measure (if any); the type and duration of the preventive measure (if any); articles (parts / clauses of the article) of the Criminal Code of Ukraine (and/or the law on criminal responsibility of a foreign state), under which a person is accused; the date and number of the court decision on the preparation of the pre-trial report (if available); about criminal records (in chronological order), which reflect, in particular, the date of the court decision and the name of the court that issued it; the date of entry into force of the court decision; articles (parts / clauses of the article) of the Criminal Code of Ukraine (and/or the law on criminal responsibility of a foreign state), according to which the person was convicted; on serving a sentence and release: the type of institution for the execution of sentences, determined in accordance with the procedure established by law, the date, the number of the protocol and the name of the commission; the date and reason for the convict's release from punishment and its serving; data on the movement of convicts, persons taken into custody, and subjects of probation; data on changes in conditions of detention; data on movement in cells, departments of the social and psychological service and structural divisions of the institution of execution of punishments.
Information from the Register, current on the date and time of its provision, is provided free of charge in the form of a paper extract by applying to the institution of execution of punishments / remand prison (item 1 of Section V of the Procedure).
Clause 6 of Section I of the Procedure establishes the entities that have access to the Register within the limits of competence defined by law, namely: judges, heads of pre-trial investigation bodies, heads of prosecutors' offices, prosecutors, investigators, investigators, and other authorized persons of the National Police of Ukraine and of the State Bureau of Investigation, detectives of the National Anti-Corruption Bureau of Ukraine and the Bureau of Economic Security of Ukraine, members of the High Council of Justice, disciplinary inspector of the High Council of Justice, authorized person of the secretariat of the High Council of Justice, members and authorized employees of the secretariat of the High Qualification Commission of Judges of Ukraine, authorized persons of the State Border Service of Ukraine, Security Service of Ukraine.
Access to the Register of the specified subjects is carried out free of charge using access identifiers provided by the Register administrator on the basis of relevant contracts, as well as using a qualified electronic signature compatible with the Register software.
In accordance with the first and third parts of Article 91 of the Criminal Code of Ukraine, the admission of convicts to correctional and educational colonies is carried out by the administration of the colonies in accordance with the procedure established by the regulations of the Ministry of Justice of Ukraine.
A personal file is kept on each person sentenced to imprisonment, as well as an information card, which contains information: about his person; about the crime committed by him and the name of the court that issued the sentence; about the day and time of his arrival and release from the colony.
According to the provisions of subsections 2, 4-5 of clause 4 of section I of the Instructions on the work of departments (groups, sectors, senior inspectors) for monitoring the execution of court decisions of penal institutions and remand detention facilities, approved by the order of the Ministry of Justice of Ukraine dated June 8, 2012 No. 847/ 5, registered in the Ministry of Justice of Ukraine on June 14, 2012 under No. 957/21269 (as amended by the order of the Ministry of Justice of Ukraine of June 17, 2021 No. 2206/5) (hereinafter - the Instruction), departments (groups, sectors, senior inspectors) of the implementation control of court decisions of penal institutions and pretrial detention centers of the State Criminal Enforcement Service of Ukraine (hereinafter referred to as the unit) carry out personal and quantitative accounting of convicts (persons taken into custody), prepare reports on their number, composition and movement; keep records, form and store personal files of convicts (persons taken into custody) who are held in an institution (pre-trial detention center); perform the functions of registrar of the Unified register of convicts and persons taken into custody.
Subitem 3 of Clause 2 of Chapter 1, Clause 3 of Chapter 2 of Section II of the Instructions establishes that when accepting convicts (persons taken into custody) to the institution, employees of the unit are obliged to enter information about each admitted convict (person taken into custody) into the log accounting for the movement of convicts (persons taken into custody, prisoners of war) and registration of personal files of convicts (persons taken into custody).
In accordance with the provisions of the order of the Ministry of Justice of Ukraine dated December 13, 2019, No. 73/5-DSK, registered with the Ministry of Justice of Ukraine on December 20, 2019, under No. 1262/34233, the names of all convicts (persons taken into custody) who arrived at the SIZO are entered in the daily record of records delivered to the pretrial detention center.
Keeping records of convicts (persons taken into custody) is carried out in accordance with Section III of the Instructions.
In accordance with points 1–3, 10 of chapter 1 of section III of the Instructions, subdivisions of institutions keep records of convicts (persons taken into custody): personal: according to the personal file of the convicted (person taken into custody); by account card ; quantitative: according to the record book of the movement of convicts (persons taken into custody) and registration of personal files of convicts (persons taken into custody).
Subdivisions of the pretrial detention center keep records of convicts (persons taken into custody): personal: according to the personal file of the convict (person taken into custody); according to the alphabetical card of form No. 1, which is provided for by the Instruction on operational reference and dactyloscopic accounting; quantitative: based on daily accounting information delivered to the pre-trial detention center; according to the record of the movement of convicts (persons taken into custody) and registration of personal files of convicts (persons taken into custody).
Subdivisions of institutions (pretrial detention centers) carry out, within their competence, entering or editing information about convicts (persons taken into custody) into the Unified Register of Convicts and Persons Taken into Custody, in accordance with the Procedure for the Formation and Maintenance of the Unified Register of Convicts and Persons Taken into Custody, approved by order of the Ministry of Justice of Ukraine dated June 26, 2018 No. 2023/5, registered in the Ministry of Justice of Ukraine on July 2, 2018 under No. 762/32214.
Convicts (persons taken into custody) who were transferred to other places of punishment, died, were released, escaped from the institution (SIZO), voluntarily left the place of restraint, are removed from the personal and quantitative records in the subdivision of the institution (SIZO).
Convicts (persons taken into custody) who are sent for treatment to health care institutions, or who have received permission to leave the institution for a short time, are not removed from the records.
According to Clause 1 of Chapter 2 of Section III of the Instructions for Controlling Timely Release, as well as Excluding Time Limits for Consideration of the Submission of Materials to the Court on Conditional Early Release from Serving a Sentence (Articles 81, 107 of the Criminal Code of Ukraine), Substitution of a Life Sentence deprivation of liberty for punishment in the form of imprisonment for a certain period of time, replacement of the unserved part of the sentence with a milder one (Article 82 of the Criminal Code of Ukraine), transfer of convicts to a social rehabilitation (social adaptation) department or regarding the transfer of convicts on the grounds established by paragraphs one and two of part first article 101 of the Criminal Code of Ukraine, changes in the conditions of detention of convicts to life imprisonment on the grounds established by the second and third parts of article 1511 of the Criminal Code of Ukraine, for each convict who arrived at the institution, a convict's control-term card is filled out.
A control-term card file is made up of such cards. In December of each year, cards for convicts who are to be released in the following year are removed from it, and they are placed separately by the date of the end of the sentence (month and day).
In case of transfer of the convict for further serving of sentence to another institution, his release or death, the convict's control-term card is removed from the card file and added to his personal file.
Paragraphs 1, 2 of Chapter IV of the Instructions establish that the personal file of convicts (persons taken into custody) is the main accounting document of the convicted (person taken into custody). It consists of two parts, is placed in a cover and is completed with documents certifying the person, confirming the legality and the process of keeping him in an institution (pre-trial detention center), as well as release from it. The list of documents attached to the personal file of the convicted person (person taken into custody) is noted in the description, which is kept separately for the first and second parts of the case.
One volume of the personal file of a convicted person (a person taken into custody) may contain no more than 250 sheets. If the number of sheets exceeds 250 sheets, the next volume is formed.
The following documents are attached to the first part of the personal file of the convicted person (a person taken into custody): a court verdict that has entered into force, other court decisions; orders of the Ministry of Justice of Ukraine on the execution of decrees of the President of Ukraine regarding pardons; decisions of the central commission, central commissions regarding institutions of the central and southern regions, interregional commission; a copy of the dismissal certificate; a copy of the person's death certificate.
The second part of the personal file of the convicted person (the person taken into custody) is accompanied by documents that reflect the process of their detention in the pretrial detention center and serving their sentence in the institution.
Other documents relating to a specific person are also attached to the personal file of the convicted person (person taken into custody).
In addition, in accordance with clauses 1, 4 of Chapter VII of the Instructions, after receiving information about the death of a convict (a person taken into custody), the unit, together with the unit of social, educational and psychological work, immediately based on the information available in the personal file of the convicted (person taken into custody) ) about close relatives of the deceased, take measures to notify one of them of the death by any means of communication, and together with the medical department (paramedic station, hospital) take measures to submit the necessary documents for registration of the fact to the state registration body of acts of civil status death.
The following shall be attached to the personal file of the convicted person (person taken into custody) who has died: a copy of the document testifying to the notification (notification) of the death to close relatives (if they exist) and to the state registry of civil status acts, a copy of the death certificate , the act of handing over the body of a deceased convict (a person taken into custody), the act of an accident (if the death occurred as a result of an accident), materials of an official investigation, the act of a forensic medical expert on the autopsy of a corpse, a document on the transfer of belongings, money and valuables of a convict ( of a person taken into custody) to the heirs (for state income or for destruction by court order), as well as the burial certificate, which states: date, month, year of burial, number of sector (plot), row and grave, surname, first name , patronymic (if available), date, month, year of birth and death, date and who issued the death certificate, burial permit number.”.
Reply to paragraph 24 of the list of issues
Ukraine, as a state party to the Convention, during 2022-2024, together with international partners, organized and held a significant number of trainings, seminars and conferences, the purpose of which was to study the provisions of International Humanitarian Law, discuss problematic issues of its application in the minds of the international armed conflict between the Russian Federation and Ukraine. These classes are currently held both on the territory of Ukraine and on the territory of European countries. In the current year 2024, one class was held with ICRC representatives, and three more are planned.
V.Measures to protect and guarantee the rights of victims of enforced disappearance (Article 24)
Reply to paragraph 25 of the list of issues
The criminal procedural legislation of Ukraine does not operate with the concept of "victim".
At the same time, it is noted that the first part of Article 55 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the Criminal Code of Ukraine) establishes that a "victim" in criminal proceedings can be a natural person to whom moral, physical or property damage was caused by a criminal offense, a legal entity to whom a criminal offense property damage was caused, as well as the administrator of the bond issue, who, in accordance with the provisions of the Law of Ukraine "On Capital Markets and Organized Commodity Markets", acts in the interests of the owners of bonds, to whom property damage was caused by a criminal offense.
On January 12, 2023, the Verkhovna Rada of Ukraine adopted Law of Ukraine No. 2858-IX "On Amendments to the Criminal Procedure Code of Ukraine Regarding the Protection of the Rights and Legal Interests of a Child in the Event of Detention or Detention of His Parents or Other Legal Representatives", which established that the authorized official who, on the basis of the decision of the investigating judge, the court on the authorization of detention, detained a person, is obliged to immediately notify the presence of a child in the custody of the detained person who remains without care, the body of guardianship and care at the place of such a child for adoption necessary measures regarding the temporary placement of a child (part nine of Article 191 of the Criminal Procedure Code), which is aimed at comprehensive consideration and unwavering observance of the rights and interests of a child who is dependent on a person against whom a preventive measure in the form of detention is already being applied.
Regarding the issue of the rights of victims of enforced disappearance, in addition to the "right to review the materials of criminal proceedings", it is noted that in accordance with parts one to four of Article 56 of the Criminal Procedure Code, during criminal proceedings, the victim has the right to:
1. To be informed about their rights and obligations provided for by the Code of Civil Procedure;
2. To know the essence of the suspicion and accusation, to be informed about the selection, change or cancellation of the measures to ensure the criminal proceedings and the end of the pre-trial investigation in relation to the suspect, the accused;
3. Submit evidence to the investigator, prosecutor, investigating judge, court;
4. File objections and motions;
5. If there are appropriate reasons - to ensure safety for oneself, close relatives or members of one's family, property and housing;
6. Give explanations, statements or refuse to give them;
7. Appeal the decision, actions or inaction of an investigator, prosecutor, investigating judge, court in the manner provided by the Code of Criminal Procedure;
8. To have a representative and at any moment of the criminal proceedings to refuse his services;
9. To give explanations and testimony in his native language or another language that he is fluent in, to use the services of an interpreter free of charge at the expense of the state, if he does not speak the state language or the language in which criminal proceedings are conducted;
10. For compensation for damage caused by a criminal offense in the manner prescribed by law;
11. Get acquainted with the materials that directly relate to the criminal offense committed against him, in the manner prescribed by the Code of Criminal Procedure, including after opening the materials in accordance with Article 290 of the Code of Criminal Procedure, as well as get acquainted with the materials of the criminal proceedings that directly relate to the criminal offense committed against him, in case of closure of this proceeding;
12. Use technical means in compliance with the requirements of the Code of Civil Procedure in conducting procedural actions in which he participates. The investigator, prosecutor, investigating judge, court has the right to prohibit the victim from using technical means during a separate procedural action or at a certain stage of criminal proceedings for the purpose of not disclosing data that contain a secret protected by law or relate to the intimate aspects of a person's life, which is ruled on (decided ) reasoned resolution (resolution);
13. Receive copies of procedural documents and written notices in cases provided for by the Code of Civil Procedure;
14. Exercise other rights provided for by the Code of Civil Procedure.
During the pre-trial investigation, the victim has the right to:
1. For immediate acceptance and registration of a statement about a criminal offense, recognition of it as a victim;
2. Receive a document confirming its acceptance and registration from the authorized body to which he submitted the application;
3. Submit evidence to support your statement;
4. Participate in investigative (search) and other procedural actions, during which ask questions, submit comments and objections regarding the procedure for conducting the action, which are entered in the protocol, as well as get acquainted with the protocols of investigative (search) and other procedural actions, performed with his participation;
5. To receive copies of materials directly related to the criminal offense committed against him, after the pre-trial investigation.
During court proceedings in any instance, the victim has the right:
1. Be informed in advance about the time and place of the trial;
2. Participate in court proceedings;
3. Participate in the direct examination of evidence;
4. Support the prosecution in court in case the prosecutor refuses to support the state prosecution;
5. To express one's opinion when deciding the question of imposing a punishment on the accused, as well as to express one's opinion when deciding the question of applying coercive measures of a medical or educational nature;
6. Get acquainted with court decisions, the log of the court session and the technical record of the criminal proceedings in the court;
7. Appeal court decisions in accordance with the procedure provided for by the Code of Civil Procedure.
At all stages of criminal proceedings, the victim has the right to reconcile with the suspect, the accused and conclude a reconciliation agreement. In the cases provided for by the Law of Ukraine on Criminal Responsibility and this Code, reconciliation is the basis for closing criminal proceedings.
Reply to paragraph 26 of the list of issues
According to the provisions of Article 127 of the Criminal Code, the suspect, the accused, as well as with his consent, any other natural or legal person has the right at any stage of the criminal proceedings to compensate the damage caused to the victim, the territorial community, the state as a result of a criminal offense.
Damage caused by a criminal offense or other socially dangerous act can be recovered by a court decision based on the results of consideration of a civil claim in criminal proceedings.
Damage caused to the victim as a result of a criminal offense shall be compensated to him at the expense of the State Budget of Ukraine in the cases and in the manner prescribed by law.
In accordance with the first, fifth and sixth parts of Article 128 of the Criminal Code, a person who has suffered property and/or moral damage as a result of a criminal offense or other socially dangerous act has the right to file a civil lawsuit against the suspect during criminal proceedings before the trial begins. the accused or to a natural or legal person who, according to the law, bears civil responsibility for the damage caused by the actions of the suspect, the accused or an unconvinced person who committed a socially dangerous act.
A civil lawsuit in criminal proceedings is considered by a court according to the rules established by the Criminal Procedure Code. If procedural relations arising in connection with a civil lawsuit are not regulated by the Code of Criminal Procedure, the norms of the Civil Procedure Code of Ukraine shall apply to them, provided that they do not contradict the principles of criminal justice.
Refusal of a claim in civil, economic or administrative proceedings deprives the civil plaintiff of the right to present the same claim in criminal proceedings.
At the same time, we note that Article 1 of the Law of Ukraine "On the Procedure for Compensation for Damage Caused to a Citizen by Illegal Actions of Bodies Carrying Out Operative-Investigative Activities, Pre-Trial Investigation Bodies, Prosecutor's Office and the Court" specifies that, in accordance with the provisions of this Law, damages caused to a citizen as a result of:
1. Illegal conviction, illegal notification of suspicion of a criminal offense, illegal arrest and detention, illegal search, seizure, illegal seizure of property, illegal suspension from work (position) and other procedural actions during criminal proceedings, which restrict the rights of citizens;
2. Illegal application of administrative arrest or correctional works, illegal confiscation of property, illegal imposition of a fine;
3. Illegal conduct of operative investigative activities provided for by the laws of Ukraine "On operative investigative activities", "On organizational and legal bases of combating organized crime" and other acts of legislation.
In the cases specified in the first part of this article, the damage caused shall be compensated in full, regardless of the fault of the officials of the bodies carrying out operational and investigative activities, pre-trial investigation, the prosecutor's office and the court.
In the context of the issue of compensation for victims of violent crimes, it is noted that the Ministry of Justice has developed draft Laws of Ukraine "On Compensation for Victims of Violent Criminal Offenses", "On Amendments to the Code of Ukraine on Administrative Offenses and the Criminal Procedure Code of Ukraine on Ensuring the Mechanism for Compensation for Damages" victims of violent criminal offenses".
On June 5, 2024, the draft Laws were considered at the Government Committee on Economic, Financial and Legal Policy, Fuel and Energy Complex, Strategic Industries and Law Enforcement Activities (the draft acts are being finalized taking into account the comments made during the above meeting).
After the adoption of the above-mentioned implementing bills, a draft law "On Ratification of the European Convention on Compensation for Damages to Victims of Violent Crimes" will be prepared.
Reply to paragraph 27 of the list of issues
In accordance with Article 10 of the Law "On the Legal Status of Persons Disappeared Under Special Circumstances" (hereinafter - the Law) , the Commissioner is an official of the central executive body (Ministry of Internal Affairs of Ukraine), which implements state policy in the field of compliance with the norms of international humanitarian law throughout the territory of Ukraine, which is entrusted with the authority to coordinate the search for persons who have disappeared under special circumstances, and to resolve other issues related to this.
In connection with this, the Commissioner interacts with state authorities, auxiliary bodies and services established by the President of Ukraine, temporary consultative, advisory and other auxiliary bodies established by the Cabinet of Ministers of Ukraine, local self-government bodies, public associations, trade unions, organizations employers, relevant bodies of foreign states and international organizations, as well as with enterprises, institutions and organizations regarding the search for persons missing under special circumstances; carries out coordination of the activities of such subjects in the search for persons who have gone missing under special circumstances.
The Commissioner and the Office for Missing Persons under Special Circumstances, the Ministry of Internal Affairs (Secretariat of the Commissioner) organize the exchange of information that can facilitate the search for persons missing under special circumstances, between the Commissioner and state bodies authorized to register and/or search for them, as well as monitoring the implementation of measures to search for persons who have disappeared under special circumstances, with a request from the relevant territorial body of the National Police of Ukraine for information on the results of the implementation of such measures at any stage of their implementation based on a request from the applicant or on their own initiative.
In connection with this, monitoring and analysis of social networks, messengers and various Internet resources is systematically carried out for the purpose of searching for and identifying persons who have gone missing under special circumstances.
As of July 22, 2024, as of July 22, 2024, according to the results of the monitoring and analysis of revealed information, 437 missing servicemen were identified who were captured by the aggressor state, and information about their captivity was established for the first time by the Commissioner and employees of the Authority (Secretariat of the Commissioner).
In connection with that, in order to update the data on the specified persons, namely regarding their stay in captivity, the relevant information was sent to:
Of the state enterprise "Ukrainian National Center for Peacebuilding", which belongs to the sphere of administration of the Ministry for Reintegration of Temporarily Occupied Territories, which performs the functions of the National Information Bureau in accordance with the Geneva Conventions on the Treatment of Prisoners of War and on the Protection of the Civilian Population in Time of War of August 12, 1949;
National Police of Ukraine;
Of the United Center for the Coordination of Search and Release of Prisoners of War, Persons Illegally Deprived of Liberty as a Result of Aggression Against Ukraine atSecurity Service of Ukraine;
Coordinating Staff on the Treatment of Prisoners of War;
At the same time, in the course of ongoing monitoring, identifying and analytical information (photo and video footage of capture) was added to the Register for 881 accounts of persons who went missing under special circumstances.
In addition, the Commissioner submitted applications to the law enforcement authorities regarding the search for a person, violations of the laws and customs of war, in particular regarding the facts of enforced disappearance, in respect of 105 persons, a pre-trial investigation was initiated against 51 persons, in relation to the others, the application was attached to the already initiated criminal proceedings, and in some cases, criminal offenses in such criminal proceedings, on the basis of the Commissioner's statement, were reclassified under Article 438 of the Criminal Code of Ukraine, i.e. under the facts of violation of the laws and customs of war.
One of the main powers of the Commissioner provided for in Article 11 of the Law is to communicate with the relatives of persons who have disappeared under special circumstances and to provide them with information on the status of the search and its results within the limits set by the law; and also taking measures to ensure that the next of kin and/or family members of persons missing under special circumstances are provided with the necessary information regarding the identification report or the results of the investigation into the disappearance of the person.
As a rule, relatives of persons who have gone missing under special circumstances contact the Commissioner or the Office (Secretariat of the Commissioner) in written or oral forms, in particular to make an appointment for a personal appointment. For the most part, relatives of persons who have gone missing under special circumstances, first of all seek to receive information about the location of the missing person and about the measures taken to find or identify him and, accordingly, the results of such measures.
Therefore, depending on the form of application, relatives are informed in written or verbal form.
At the same time, the Commissioner cannot publicize the data obtained as a result of investigative actions or investigative activities. After all, in accordance with the requirements of Article 222 of the Criminal Code of Ukraine, the information of the pre-trial investigation can be disclosed only with the written permission of the investigator or prosecutor and to the extent that they consider possible. Illegal disclosure of pre-trial investigation information entails criminal liability established by law.
National legislation, namely the Law, provides, in particular, the right of close relatives and family members of persons missing under special circumstances to receive: reliable information about the whereabouts of a person missing under special circumstances, the circumstances of his/her death, place of burial (if known); from state authorities authorized to register and/or search for persons who have gone missing under special circumstances, information on the progress and results of their search in the manner established by the Law (Part 3, Article 6 of the Law). This, in turn, ensures the implementation of Article 24 of the Convention.
The bodies authorized to search for persons who have gone missing under special circumstances, as well as to perform other functions related to the implementation of this Law, include the National Police of Ukraine and the bodies carrying out operational and investigative activities, defined by the Law of Ukraine "On Operational search activity".
That is why, in order to obtain more detailed information about the state of the pre-trial investigation in criminal proceedings by victims (victims), which are mostly recognized as relatives of missing persons under special circumstances, it is necessary to contact the investigator who conducts the pre-trial investigation or the prosecutor who conducts procedural supervision in compliance with the laws during the pre-trial investigation (to submit a request for familiarization with the materials of the pre-trial investigation in criminal proceedings).
In May, the Working Group on the Protection of the Rights and Freedoms of Civilians began its work, which functions within the scope of the activities of the Coordination Headquarters on the Treatment of Prisoners of War. One of the tasks of the subgroup responsible for the release and return of civilians is the search and verification of civilians. For this purpose, all available resources are being mobilized to confirm the fact of being in captivity of civilians who were deported or forcibly relocated to the territory of the Russian Federation, have disappeared, and also to establish their location. All possible sources of information are also taken into account, involved and consolidated, including eyewitness accounts, information from local authorities, documentation and confirmation from international organizations, and other available sources of information.
Number of mass burials
Currently, SBU investigators are conducting a pre-trial investigation in a number of criminal proceedings on the veils of discovery of burials of corpses in the territory of:
Sviatohirsk, Kramatorsk district, Donetsk region;
Lyman, Kramatorsk district, Donetsk region;
with. Novoselivka of Lymansk OTG of Kramatorsk district of Donetsk region;
with. Drobysheve of Limas'ka OTG of Kramatorsk district of Donetsk region;
with. Yarova of Limas'ka OTG of Kramatorsk district of Donetsk region.
In total, the corpses of about 100 people belonging to civilians of the specified settlements were discovered. Most of them have traces of gunshot or mine-explosive injuries. The time and circumstances of the death of persons are being established.
Reply to paragraph 28 of the list of issues
In accordance with Article 1 of the Law "On the Legal Status of Persons Disappeared Under Special Circumstances" (hereinafter - the Law) , the Unified Register of Persons Disappeared Under Special Circumstances (hereinafter - the Register) is an electronic database designed for storage, protection, processing , the use and dissemination of information defined by this Law about persons who have gone missing under special circumstances, their unidentified remains, the presence or absence of a court decision to recognize persons who are missing, missing without notice or declared dead, as well as other data used to ensure the registration of persons , missing persons, with the aim of searching for them.
In understanding the requirements of this Law, the identification of the bodies (remains) of deceased (deceased) persons should be understood as a set of expert (laboratory) research measures aimed at reliably establishing the identity of an unidentified body. At the same time, any information and/or data about a missing person that can contribute to determining his whereabouts, identifying unidentified remains, determining the place of burial or the location of the remains of a deceased person are recognized as information that can facilitate the search for a missing person under special circumstances.
According to Article 21 of the Law, reliable information about the death of a person is the results of analysis and comparison of information on the recovery of human remains provided by search teams, postmortem information on such remains provided by the forensic medical examination bureau, information on DNA profiles and results of DNA matching provided by DNA -laboratories, with information known about a missing person under special circumstances. This information is contained in the Comprehensive Identification Report.
At the same time, in accordance with Article 22 of the Law, information on unidentified remains, obtained as a result of identification, is entered in the section of the Register containing information on unidentified remains and related items.
In case of impossibility of identification of human remains, information that may contribute to its implementation, in particular, date and place of discovery of human remains, data of a full postmortem examination, including special features, age, physique, etc., clothing and personal belongings, DNA samples and profiles obtained in DNA laboratories, is fixed within the competence defined by the legislation, by the central body of executive power, which ensures the formation and implementation of state policy in the field of health care, and by the relevant divisions of the Ministry of Internal Affairs of Ukraine, and is entered into the Register.
According to the Law of Ukraine "On State Registration of Human Genomic Information" (hereinafter referred to as the Law), which entered into force on November 5, 2022, and the Resolution of the Cabinet of Ministers of Ukraine No. 978 dated August 29, 2023, the implementation of the procedures for state registration of human genomic information provided for by the Law is ensured. for the identification of unrecognizable human corpses, their remains and parts of the human body. The Regulation on the Electronic Register of Human Genomic Information, approved by the Order of the Ministry of Internal Affairs of August 4, 2023, No. 639, regulates the creation and operation of the Electronic Register of Human Genomic Information (hereinafter - the Register), the administrator of which is the State Research Expert Forensic Center of the Ministry of Internal Affairs of Ukraine.
State registration of human genomic information in terms of identification of unrecognizable human corpses, their remains, and parts of the human body involves entering the following categories of genomic information (DNA profiles) into the Register for further search, namely:
Close relatives of missing persons (biological father, mother, in their absence - children, and in the absence of children - brothers, sisters or other biological relatives on the maternal or paternal line);
Unidentified corpses of people, their remains and parts of the human body, the information on the discovery of which is entered in the Unified Register of Pre-Trial Investigations or reflected in the resolution on the initiation of the pre-trial investigation issued in accordance with the procedure provided for in Article 615 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the Criminal Procedure Code of Ukraine);
From previously selected biological samples of missing persons, or biological material from the personal belongings of missing persons, information about which is entered in the Unified Register of Pretrial Investigations or is reflected in the resolution on the initiation of a pretrial investigation issued in accordance with the procedure provided for in Article 615 of the Criminal Procedure Code of Ukraine.
The specified categories of human genomic information (DNA profiles) are in the process of a permanent search for the subject of kinship between them, and in the event of such coincidences, the pre-trial investigation bodies are informed, which initiated the appointment and conduct of the relevant forensic molecular genetic examinations.
The further mechanism of identification of unidentified corpses takes place exclusively on the grounds and in the order determined by the Criminal Procedure Code of Ukraine, pre-trial investigation bodies, the prosecutor's office and the court.
In accordance with paragraph 5 of the Procedure for the transfer and repatriation of bodies (remains) of persons killed (deceased) in connection with armed aggression against Ukraine, approved by Resolution No. 698 of the Cabinet of Ministers of Ukraine dated June 17, 2022, unidentified bodies (remains) of persons killed (deceased) in connection with armed aggression against Ukraine, are subject to identification in accordance with the Law.
In accordance with Article 8 of the Law of Ukraine "On the State Registration of Human Genomic Information", in the event of the introduction of martial law, the selection of biological material is carried out in a mandatory manner from military personnel, police officers, members of the rank and file of the civil defense service, as well as members of voluntary formations of territorial communities.
Currently, such a mechanism is already being implemented. This, in turn, contributes to the acceleration of the identification process of unidentified bodies (remains) that died (died) as a result of armed aggression against Ukraine and makes it impossible for close relatives of a person who has gone missing under special circumstances to retraumatize, due to the absence of the need to provide their biological samples.
Reply to paragraph 29 (a) of the list of issues
In accordance with Clause 4 of the Regulations on the Commissioner for Issues of Persons Disappeared Under Special Circumstances, approved by Resolution No. 511 of the Cabinet of Ministers of Ukraine dated April 29, 2022, the authorized person is appointed to the position and dismissed from the position by the Cabinet of Ministers of Ukraine at the request of the Minister of Internal Affairs.
Articles 11, 18 and 19 of the Law, Clause 7 of the Regulation on the Commissioner for Issues of Persons Missing in Special Circumstances, approved by Resolution No. 511 of the Cabinet of Ministers of Ukraine dated April 29, 2022, define the powers of the Commissioner, namely:
Interaction with state authorities, auxiliary bodies and services formed by the President of Ukraine, temporary consultative, advisory and other auxiliary bodies formed by the Cabinet of Ministers of Ukraine, local self-government bodies, public associations, trade unions, employers' organizations, relevant bodies of foreign states and international organizations, as well as with enterprises, institutions and organizations regarding the search for persons missing under special circumstances;
Receiving information (including personal data) within the limits of the powers specified by this Law from state authorities, including through information interaction between the Unified Register of Persons Disappeared Under Special Circumstances and other state information resources in electronic form by means of information and communication with using technical and cryptographic means of information protection in accordance with the requirements of the legislation on information protection;
Preparation and submission to the responsible body of the executive power of analytical materials and proposals regarding measures to improve the system of searching for persons who have disappeared under special circumstances, including projects of strategic and programmatic documents of the Cabinet of Ministers of Ukraine on the specified issues, as well as action plans;
Preparation of recommendations to state authorities regarding the fulfillment of Ukraine's international obligations regarding persons who have disappeared under special circumstances;
Participation in the development of projects of normative legal acts on the search for persons who have disappeared under special circumstances and their legal status;
Processing of information that may contribute to the search for missing persons under special circumstances;
Organization of information exchange, which can facilitate the search for persons who have disappeared under special circumstances, between the Commissioner and state bodies authorized to register and/or search for them;
Generalization of the received information, which may contribute to the search for a missing person under special circumstances, and its transfer to the relevant authorities of the National Police, which the applicant is informed about;
Facilitating the return of the body (remains) and personal belongings of a person who has gone missing under special circumstances to his relatives;
Communicating with relatives of persons who have disappeared under special circumstances and providing them with information on the status of the search and its results within the limits set by the law;
Taking measures to ensure that close relatives and/or family members of persons who have disappeared under special circumstances are provided with the necessary information regarding the identification report or the results of the investigation into the person's disappearance;
Monitoring the implementation of measures to search for persons who have gone missing under special circumstances and requesting information from the relevant National Police bodies on the results of such measures at any stage of their implementation based on a request from the applicant or on their own initiative;
Initiation of the formation of expert and working groups, commissions, involvement of specialists, including foreign ones, in solving issues that belong to his competence;
Drawing up protocols on administrative offenses provided for by Article 188 - 51 of the Code of Ukraine on Administrative Offenses, and determining authorized persons of the Commissioner's Secretariat to draw up such protocols.
In addition, the project of the Law on Amendments to Article 11 of the Law of Ukraine "On the Legal Status of Persons Disappeared Under Special Circumstances", registered in the Verkhovna Rada of Ukraine on March 19, 2024 (reg. No. 11093), in particular, provides for the empowerment of the Commissioner, respectively to which in order to obtain information that may contribute to the search for a missing person under special circumstances, the Commissioner has the right to communicate with persons who may possess such information and, with their consent, to receive written or oral explanations.
Reply to paragraph 29 (b) of the list of issues
The National Police of Ukraine is directly involved in the search for persons, in particular those who have disappeared under special circumstances.
In order to ensure a proper search, operational units of the National Police Agency open investigative cases, carry out investigative measures, while investigators of the National Police Agency or the SBU at the same time investigate relevant criminal proceedings on the facts of the disappearance of missing persons under special circumstances.
There are no such search groups within the Ministry of Internal Affairs and, accordingly, in the Department (Secretariat of the Commissioner), since the Resolution of the Cabinet of Ministers of Ukraine dated September 12, 2023 No. 975 "Issue of determining the powers of certain bodies in the field of compliance with the norms of international humanitarian law throughout the territory of Ukraine" for the period of war state and within one year from the date of its termination or cancellation, the Central Department of Civil-Military Cooperation of the General Staff of the Armed Forces carries out the authority to form and coordinate the work of search groups to search for persons who have gone missing under special circumstances (humanitarian missions).
Today, within the structure of the Central Directorate of Civil-Military Cooperation of the General Staff of the Armed Forces, search and evacuation groups of the humanitarian mission of the Armed Forces of Ukraine have been created, whose activities are aimed at searching for persons who have gone missing under special circumstances, their remains, searching for and fixing the places of unaccounted-for burials, carrying out exhumation (exhumation) of bodies (remains) of deceased (deceased) persons and their transportation (evacuation) to state specialized institutions or places of final burial.
Also, local administrations have special groups that carry out a humanitarian mission, the purpose of which is to recover the bodies (remains) of persons who died (killed) in connection with armed aggression against Ukraine.
Reply to paragraph 29 (c) of the list of issues
The Commissioner has the right to consider all cases of missing persons who disappeared under special circumstances (in connection with armed conflict, military operations, temporary occupation of part of the territory of Ukraine, natural or man-made emergencies). All other cases of disappearance of missing persons do not fall under the competence of the Commissioner and, accordingly, are not considered (coordinated) by him. This is provided for by national legislation, in particular the Law. In connection with that, the Commissioner did not and should not have taken any measures aimed at ensuring that the Commissioner could consider all cases of missing persons, regardless of the circumstances of the disappearance.
Reply to paragraph 29 (d) of the list of issues
During the course of activities, the Commissioner has formed the set of resources necessary for the effective performance of his powers, in particular:
The staff of the Office for Issues of Persons Missing Under Special Circumstances (Secretariat of the Commissioner for Issues of Persons Missing Under Special Circumstances) was formed: by order of the Ministry of Internal Affairs of Ukraine dated August 25, 2023, No. 708, the Office (Secretariat of the Commissioner) was established in the structure of the Ministry of Internal Affairs 36 full-time civil service positions;
15 regional representative offices of the Commissioner were established (in such cities as: Vinnytsia, Zaporizhzhia, Dnipro, Kropyvnytskyi, Lutsk, Lviv, Odesa, Rivne, Slovyansk, Mykolaiv, Sumy, Kharkiv, Chernihiv, Ivano-Frankivsk, Kyiv region and Kyiv) in order to carry out proper communication with close relatives and family members of persons who have gone missing under special circumstances throughout the territory of Ukraine;
Since October 1, 2023, the hotline of the Commissioner for Missing Persons under Special Circumstances (16-98) has been established and started to be contacted by close relatives and family members of persons who have disappeared under special circumstances, with the aim of providing them with advice and information clear; the number of calls as of July 19, 2024, is 21,114;
Commissioners and employees of the Office (Secretariat of the Commissioner) have access to: the Register of defenders of Ukraine who are held captive by the aggressor state of state - owned enterprises and the "Ukrainian National Center for Peacebuilding", which belongs to the sphere of administration of the Ministry of Reintegration of Temporarily Occupied Territories, which performs the functions of the National Information Bureau in accordance with the Geneva Conventions on the Treatment of Prisoners of War and on the Protection of the Civilian Population in Time of War of August 12, 1949 ; databases of the Coordinating Headquarters on the Treatment of Prisoners of War. The process of setting up the organization of electronic information interaction of the Register with: the Register of Insured Persons of the State Register of Mandatory State Social Insurance (Pension Fund of Ukraine), the State Register of Civil Status Acts of Citizens (Ministry of Justice of Ukraine) and the Unified State Demographic Register (State Migration Service of Ukraine) is ongoing.
The Ministry of Internal Affairs of Ukraine, whose official is the Commissioner and which includes the Office (Secretariat of the Commissioner) has fully provided the necessary conditions for the effective implementation of powers in the field of coordinating the search for persons who have gone missing under special circumstances. In addition, thanks to established cooperation with Chemonics International Inc. / The "Partnership for a Strong Ukraine" Foundation's level of material, technical and software support (in terms of OSINT software products) of the Office (Secretariat of the Commissioner) is sufficient.
Negotiations are ongoing with the International Commission on Missing Persons (hereinafter - ICMS) regarding the adoption of best practices for the operation of the Integrated Data Management System (Integrated Data Management System) ICZB, which is a database with analytical capabilities, to the Unified Register of Persons Disappeared Under Special Circumstances.
Due to the successful cooperation with the International Committee of the Red Cross, a number of relevant trainings and exercises were conducted at the initiative of the latter's employees with the involvement of the Management (Secretariat of the Commissioner), as well as material and technical support.
Thus, the Commissioner and his team have the necessary and sufficient resources for the effective implementation of their powers assigned by the state.
Reply to paragraph 29 (e) of the list of issues
In the event, for example, of a lack of proper communication by relatives of such persons who have disappeared, with certain bodies or with the command of the military unit in which the serviceman was on duty, the Commissioner establishes (restores) this relationship between them. At the same time, if necessary, at the request of such persons, certain problematic issues that may arise are resolved. The Commissioner, in this case, is a kind of arbiter between relatives of missing persons under special circumstances and all national institutions.
The commissioner and his team established proper interaction and exchange of information with such bodies and institutions as:
On matters of exchange of information on prisoners of war and civilians (in particular, regarding which there is a fact of confirmation by the aggressor state through the Central Agency for Tracing of the International Committee of the Red Cross) - Coordinating Headquarters for the Treatment of Prisoners of War; the state enterprise "Ukrainian National Center for Peace Building", which belongs to the sphere of administration of the Ministry for the Reintegration of the Temporarily Occupied Territories, which performs the functions of the NIB; United Center for the Coordination of Search and Release of Illegally Deprived Persons as a Result of Aggression against Ukraine;
On matters of investigation of criminal proceedings on the facts of disappearance of persons - the National Police of Ukraine, the Security Service of Ukraine, the State Bureau of Investigation;
On matters of conducting forensic examinations, in particular forensic examinations - the Ministry of Health of Ukraine, including the Main Bureau of Forensic Examinations of the Ministry of Health of Ukraine;
On issues of whether the DNA profile of a biological sample has been placed in the Central Record of Human Genetic Characteristics / Electronic Register of Human Genomic Information ; have matches been established according to the Central Record of Human Genetic Traits / Electronic Register of Human Genomic Information - the Expert Service of the Ministry of Internal Affairs of Ukraine, which is a research institution that is part of the Ministry of Internal Affairs (the institutions of the Expert Service of the Ministry of Internal Affairs of Ukraine that carry out forensic expert activities are the State Scientific - Research Expert Forensic Center of the Ministry of Internal Affairs of Ukraine and Regional Research Expert Forensic Centers of the Ministry of Internal Affairs of Ukraine);
On issues of the formation and activity of search groups regarding the search for persons who have disappeared under special circumstances, their remains, the search and recording of the burial places of such persons, the removal of the bodies (remains) of deceased (deceased) persons and the removal of their remains - Central Department of Civil-Military Cooperation General Staff of the Armed Forces of Ukraine;
On issues of support and coordination of assistance to the population affected by the armed conflict - Coordination Center for the support of the civilian population under the oblast, district, Kyiv and Sevastopol city state (military) administrations;
As well as established cooperation with international partners: the International Committee of the Red Cross, the International Commission on Missing Persons, the International Foundation "Partnership for a Strong Ukraine".
Reply to paragraph 29 (f) of the list of issues
At the momentthe transfer of powers from the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine to the Ministry of Internal Affairs of Ukraine to coordinate the search for persons missing under special circumstances and solving other related issues in accordance with the Law of Ukraine "On the Legal Status of Persons Missing Under Special Circumstances" (September 2023) the former Commissioner, who was an official of the Ministry of Reintegration, granted the status of a person missing under special circumstances to 9,500 persons, as evidenced by information from the Register.
Reply to paragraph 30 of the list of issues
The law defines the rights of persons who have gone missing under special circumstances, including those persons who were authorized to perform state functions, namely:
For a person who has gone missing under special circumstances, the place of work and the position held are preserved, but not more than until the moment when he is recognized as missing or declared dead in accordance with the procedure established by law;
Has all the rights guaranteed by the Constitution and laws of Ukraine, and also has the right to a comprehensive investigation into the circumstances of her disappearance and to establish her whereabouts;
The rights and interests of a person who has gone missing under special circumstances, as well as his property, are subject to protection until the search for him is terminated in accordance with the procedure provided for by this Law, or he is declared dead in accordance with the law;
The acquisition of the legal status of a person who has disappeared under special circumstances does not change his marital status until the moment of dissolution of the marriage at the request of the second spouse due to the recognition of the person as missing or until the moment when such a person is declared dead;
If a person who disappeared under special circumstances is declared dead, but his remains have not been found, the search shall not be stopped until his whereabouts, burial place or the location of the remains of such a person are established;
In the event that a person who has gone missing under special circumstances on the territory of Ukraine is a citizen of another state, the National Police of Ukraine is obliged to inform the authorized bodies of the state of which such a person is a citizen of the fact of his disappearance and the results of his search in accordance with the procedure established by law;
Human remains must be identified and buried in individually marked graves in designated and registered burial sites in accordance with ritual (religious) rites;
For a person authorized to perform the functions of the state, who has disappeared under special circumstances, the place of work, the position held and the average salary at the enterprise, institution, organization, regardless of subordination, but no more than until the moment when such a person is declared dead in the order established legislation;
Persons who went missing under special circumstances during military service are provided with the guarantees provided for by the Law of Ukraine "On Social and Legal Protection of Servicemen and Members of Their Families" and other acts of Ukrainian legislation;
Payments within the limits of average earnings in the cases provided for in Article 9 of the Law are made at the expense of the state budget in accordance with the Procedure for the payment of average earnings to persons authorized to perform state functions who have disappeared under special circumstances, approved by the resolution of the Cabinet of Ministers of Ukraine dated May 22, 2019 No. 433.
The law also defines the rights of close relatives and family members of persons who have disappeared under special circumstances, in particular:
The guarantees stipulated by the Law of Ukraine "On Social and Legal Protection of Servicemen and Members of Their Families" and other acts of Ukrainian legislation are provided;
Have the right to receive reliable information about the whereabouts of a person who has gone missing under special circumstances, the circumstances of his death (death), the place of burial (if it is known);
Have the right to social protection in accordance with the procedure established by the legislation of Ukraine;
From the moment of entering data on a person who has disappeared under special circumstances, guardianship of the property of such a person may be established in the Register in accordance with the procedure provided for by the Civil Code of Ukraine (on the basis of a court decision to recognize a natural person as missing, the notary at his last place of residence describes the property belonging to him property and establishes guardianship over it).The guardian over the property of a person who has disappeared under special circumstances manages this property, and also ensures the fulfillment of the obligations of such a person at the expense of this property;
If the dependents of the person who went missing under special circumstances were adults who, due to their health, cannot independently exercise their rights and fulfill their duties, guardianship is established over such persons;
Disabled family members of a person who has gone missing under special circumstances are granted a survivor's pension, regardless of the length of the insurance period. At the same time, children are awarded a pension in connection with the loss of a breadwinner, regardless of whether they were dependent on a breadwinner;
For a special period, women and men whose close relatives (husband, wife, son, daughter, father, mother or biological (full-blood) brother or sister) died or went missing during the implementation of security measures are not subject to conscription for military service during mobilization national security and defense, repelling and deterring armed aggression of the Russian Federation in the Donetsk and Luhansk regions, as well as during the provision of national security and defense, repelling and deterring armed aggression against Ukraine during martial law;
Payment of financial support to the families of servicemen captured or held hostage, as well as interned in neutral states or missing (Decree of the Cabinet of Ministers of Ukraine No. 884 dated November 30, 2016, which approved the relevant Payment Procedure for relatives of such persons). Since military personnel receive payments in the amount of official salary at the last place of service, salary according to military rank, seniority allowances, other monthly additional types of monetary support of a permanent nature and other types of monetary support taking into account changes in years of service and norms of monetary support.
The operation of the telephone "hotline" of the Ministry of Internal Affairs of Ukraine (1536) is also ensured, which, in particular, is addressed by close relatives and family members of persons who have gone missing under special circumstances in order to provide them with consultations and explanations; the National Guard of Ukraine ensures the operation of the "hotline"(044) 249 27 82 and call centers for appeals by family members of military personnel of NSU on matters of prisoners of war, dead and missing under special circumstances; on the same issues, the State Border Service of Ukraine ensures the operation of the telephone hotline "Trust" (0 800 218 808).
VI.Measures to protect children from enforced disappearance (Article 25)
Reply to paragraph 31 of the list of issues
According to Article 146-1 The Criminal Code of Ukraine (CC) provides for criminal liability for enforced disappearance, namely:
“Arrest, detention, abduction or deprivation of liberty of a person in any other form, committed by a representative of the state, including a foreign one, with subsequent refusal to recognize the fact of such arrest, detention, abduction or deprivation of liberty of a person in any other form or concealment of data about the fate of such a person or place of residence.”.
Issuance of an order or order to commit the actions specified in the first part of this article, or failure by the manager, who became aware of the actions specified in the first part of this article, by his subordinates to take measures to stop them and not notify the competent authorities about the crime.
According to Article 146 of the Criminal Code, criminal liability is provided for illegal deprivation of liberty or abduction of a person.
The same acts committed against a minor or for selfish motives, against two or more persons or by a group of persons with prior collusion, or in a manner dangerous to the life or health of the victim, or accompanied by infliction of physical suffering on him, or with the use of weapons, or carried out for a long time.
Article 150 of the Criminal Code defines the punishment for the exploitation of a child who has not reached the age at which employment is permitted by law, through the use of his laborand the same actions committed against several children or if they caused significant harm to the child's health, physical development or educational level, or combined with the use of child labor in harmful production.
Article 149 of the Criminal Code provides criminal liability for human trafficking, as well as recruiting, moving, hiding, transferring or receiving a person, committed for the purpose of exploitation, with the use of coercion, kidnapping, deception, blackmail, material or other dependence of the victim, his vulnerable state or bribery of a third person who controls the victim to obtain consent for his exploitation. And acts against a minor or against several persons, or repeatedly, or with a prior conspiracy by a group of persons, or an official using an official position, or combined with violence that is not dangerous to the life or health of the victim or his relatives, or with a threat the use of such violence.
Actions provided for in part one or two of this article, committed against a minor by his parents, adoptive parents, guardians or custodians, or committed against a minor, or by an organized group, or combined with violence dangerous to the life or health of the victim or his relatives, or with the threat of using such violence, or if they caused serious consequences.
Human exploitation in this article should be understood as all forms of sexual exploitation, use in the porn business, forced labor or forced provision of services, slavery or practices similar to slavery, servitude, involvement in debt bondage, removal of organs, conducting experiments on a person without his consent , adoption for profit, forced pregnancy or forced abortion, forced marriage, forced involvement in begging, involvement in criminal activities, use in armed conflicts, etc.
Liability for recruiting, moving, hiding, transferring or receiving a minor or a minor under this article occurs regardless of whether such actions were committed using coercion, abduction, deception, blackmail or the vulnerable state of the specified persons or with the use or threat of use of violence, use of official position, or by a person on whom the victim was financially or otherwise dependent, or bribery of a third person who controls the victim, to obtain his consent to the exploitation of a person.
Article 358 of the Criminal Code defines responsibility for forging a certificate or other official document issued or certified by an enterprise, institution, organization, citizen-entrepreneur, notary, state registrar, subject of state registration of rights, a person authorized to perform state functions regarding registration of legal persons, natural persons - entrepreneurs and public organizations, by a state executor, private executor, auditor or other person who has the right to issue or certify such documents, and who grants rights or exempts from obligations, for the purpose of using it by a forger or other person or sale of such a document, as well as production of forged seals, stamps or forms of enterprises, institutions or organizations regardless of the form of ownership, other official seals, stamps or forms with the same purpose or their sale.
Compilation or issuance by an employee of a legal entity, regardless of the form of ownership, who is not an official, compilation or issuance by a private entrepreneur, auditor, expert, appraiser, lawyer, notary, state registrar, subject of state registration of rights, a person authorized to perform functions of the state regarding the registration of legal entities, natural persons - entrepreneurs and public formations, by a state executor, a private executor or another person who carries out professional activities related to the provision of public or administrative services, knowingly forged official documents that testify to certain facts that have legal significance or grant certain rights or exempt from obligations, forgery for the purpose of use or sale of certificates, other official documents drawn up in the form prescribed by law and containing the requisites provided for by law, production of forged official seals, stamps or forms for the purpose of their sale or their sale or sale of knowingly forged official documents, including a person's personal documents and the use of a knowingly forged document.
For a long time, the Russian Federation has been violating the rights of civilians who ended up in the Free State by forcibly moving them within the borders of the Free State or deporting them to the Russian Federation, the Republic of Belarus (hereinafter - Belarus).
The leadership of the Russian Federation justifies such actions as "evacuation from dangerous areas", although they have nothing to do with evacuation. Mass deportation and targeted abduction of Ukrainian children is a planned genocidal policy of the Russian Federation towards the Ukrainian people.
The fact of the deportation of Ukrainian children to the Russian Federation was recognized at the UN level, in particular in the resolution of the General Assembly, which defined the need for the immediate release and return of all imprisoned, forcibly displaced and illegally deported civilians, including children.
In the annual report "Children and Armed Conflict", the UN Secretary General noted in the summer of 2023 that the UN confirmed the transfer of 46 children to the Russian Federation from areas of Ukraine that are partially or were under the temporary military control of the Russian Federation, including children forcibly separated from their parents, children, removed from schools and institutions without the consent of guardians. The fact of deportation of Ukrainian children was recognized by the European Parliament, as well as PACE.
On March 17, 2023, the International Criminal Court (hereinafter - the ICC) issued an arrest warrant for V. Putin, the President of the Russian Federation, and M. Lvova-Belova, the Commissioner for Children's Rights under the President of the Russian Federation. The Pretrial Investigation Chamber of the ICC believes that there are sufficient grounds to claim that each suspect is responsible for the war crime of illegal deportation of the population and illegal transfer of the population from the Soviet Union to the Russian Federation, which caused harm to children.
Thus, in the report of the OSCE Mission on the "Moscow Mechanism" presented in April 2023, dedicated to the issue of the deportation of children in the context of human rights violations and the humanitarian consequences of the Russian Federation's aggressive war against Ukraine, it is noted that as of February 24, 2022, many Ukrainian children ended up in the TOT, and also deported to the Russian Federation.
According to the "Children of War" state portal, as of 12/31/2023, 19,546 children were deported to the Russian Federation, the Republic of Belarus or were forcibly transferred to the TOT, including, according to the NIB, 3,780 orphans and children deprived of parental care. In 2023, the number of people deported to the Russian Federation, Republic of Belarus or forcibly relocated to the temporarily occupied territories of Ukraine increased by 5,670.
This, in particular, is confirmed by the fourth report of the OSCE Office for Democratic Institutions and Human Rights (ODIHR), which covers events from June 1 to November 30, 2023. Most of the provisions of the document are based on the testimony of witnesses interviewed by the Bureau of Witnesses (91 people). In particular, the report states that Ukrainian children continue to be forcibly transferred to and from the TOT to the Russian Federation and the Republic of Belarus. At the same time, the report emphasized that the authorities of both countries continue to deny their involvement in illegal actions, instead claiming that they are saving children from the conflict, publicly thanking and celebrating the actions of those who participated in it.
During 2023, the Commissioner received 163 appeals regarding the return of 347 children to the territory controlled by Ukraine. With the assistance of the Commissioner's Secretariat, a guardian/custodian was appointed for 16 children for their return to the territory controlled by Ukraine.
In total, according to data posted on the Children of War portal, the Ukrainian side managed to return 388 children to Ukraine.
The authorized person, in accordance with his competence, together with the responsible state bodies and public organizations, take measures for the return of deported children.
The Commissioner is actively involved in the implementation of measures for the return of Ukrainian children. The Commissioner is part of the team of implementers of the Preventive Plan to stop and prevent gross violations of children's rights during the armed conflict in Ukraine.
BRING KIDS BACK UA - a Ukrainian Action Plan created at the initiative of the President of Ukraine in 2023, which unites the efforts of all authorities of Ukraine and other countries (Canada, Qatar, the Netherlands, Germany), was developed for the return of Ukrainian children from deportation and forced displacement. international and non-governmental organizations.
As part of this Action Plan, an International Expert Group has been formed, which includes influential international experts who will be agents of the implementation of the advocacy efforts of Ukraine and its partners.
As part of the implementation of the mentioned Action Plan and with the assistance of the partner country, Qatar, in particular the Minister of State for International Cooperation of the Ministry of Foreign Affairs of Qatar, Lolwa Al-Khater, the Commissioner's Secretariat assisted in the return of 36 children to the territory under the control of the Government of Ukraine.
Also, Qatar supports the process of rehabilitation and restoration of returned children and their family members on the territory of Qatar.
The Commissioner administers the activities of the International Coalition for the Return of Ukrainian Children, which was created as a result of the first founding meeting in Kyiv on December 8, 2023. The Coalition presented 10 key areas in which work should be carried out by both Ukrainian authorities and Coalition partners, namely:
Facilitating the return of children
1. Implementation of strategic advocacy campaigns to increase global attention and attract support from the international community to the work of the Coalition;
2. Identifying and locating illegally deported and forcibly displaced children;
3. Development of mechanisms for the return of illegally deported and forcibly displaced children in accordance with the provisions of international law, human rights standards and taking into account the best interests of the child;
4. Implementation of diplomatic efforts and negotiations with the Russian Federation;
Physical return of children
5. Assistance in the preparation and issuance of documentation to establish the identity of children and family members, including documents required for crossing the border;
6. Physical return (construction of routes, logistics, transportation) of illegally deported and forcibly displaced children to Ukraine;
Reintegration and psychosocial support
7. Facilitating the reunification of returned children with their families or their placement in family forms of upbringing;
8. Reintegration of children into the community, provision of appropriate humanitarian, medical and psychological assistance to children and their families;
Guarantees of non-repetition in the future
9. Ensuring access to justice for child victims and witnesses of crimes;
10. Bringing to justice those who organized the illegal deportation and forced transfer of Ukrainian children in accordance with the norms of international law and the decisions of international judicial institutions.
Reply to paragraph 32 of the list of issues
Currently, the Russian Federation does not foresee the possibility of repatriation of minor orphans and children deprived of parental care. Moreover, children from this category are at the greatest risk of becoming victims of forced transfer to Russian families and imposed citizenship of the Russian Federation, which accompanies the process of transfer to guardianship and/or adoption.
A separate problematic issue is the identification and return of children deported and adopted by Russians during 2014–2021, in particular those who, due to the temporary occupation, did not have Ukrainian identity documents.
Adoption of Ukrainian children without the consent of their country of origin is a violation of Ukrainian and international legislation.
However, according to the information presented in the Report on the activities of the Commissioner under the President of the Russian Federation for the rights of the child M. Lvova-Belova in 2022 (hereinafter - the Report), more than 380 orphans from Donbas were "placed under the care" of Russian families living in 19 regions of the Russian Federation.
Taking into account the rule on the preservation of the secret of adoption, which is provided for in Article 139 of the Family Code of the Russian Federation, the number of child victims of forced transfer to Russian families may be much higher.
On the Internet pages of Russian high-ranking officials, messages are posted about the placement of Ukrainian orphans, children deprived of parental care, relocated to the Russian Federation.
The Secretariat of the Commissioner to the Main Investigative Department of the Security Service of Ukraine, the Office of the Prosecutor General, the State Enterprise "Ukrainian National Center for Peacebuilding" sends information about the forced transfer or deportation of Ukrainian children from the temporarily occupied territory of Ukraine, which appears in the mass media, for the purpose of verification and application necessary response measures.
The information presented in the requests is the subject of a pre-trial investigation in the criminal proceedings initiated on 03/21/2022 under Part 1, Part 2 of Art. 438 of the Criminal Code of Ukraine on the facts of the illegal transfer of Ukrainian children to the temporarily occupied territory of Ukraine and their subsequent deportation to the Russian Federation, the Republic of Belarus, as well as the forced granting of Russian citizenship to them and their subsequent transfer to the custody and adoption into the families of Russian citizens.
Currently, the pre-trial investigation is ongoing, the necessary measures are being taken to identify Ukrainian children and persons involved in their transfer to the temporarily occupied territory of Ukraine, and their deportation to the Russian Federation and the Republic of Belarus.
It is worth noting that the forced removal of children falls under the characteristics of three articles of the Rome Statute of the International Criminal Court (6-8):
1. Genocide in the form of forced transfer of children from one human group to another;
2. A crime against humanity in the form of deportation or forced displacement of the population;
3. A war crime in the form of illegal deportation or transfer or illegal deprivation of liberty.
The processes of forced relocation, deportation and subsequent placement of Ukrainian children with Russian families began after the armed aggression of the Russian Federation against Ukraine in 2014.
According to the information provided by the Prosecutor's Office of the Autonomous Republic of Crimea and Sevastopol from 30.03.2023, for the period from October to November 2014, according to the official information of the so-called "Ministry of Education, Science and Youth of the Republic of Krym" through the "Train of Hope - Crimea" program, there was 12 children aged from 10 months to 8 years were adopted by families from Moscow, Belgorod, the Republic of Adygea, Krasnodar Krai and Voronezh Region.
The letter also states that in the period from 2015 to 2017, more than 1,900 children from the Autonomous Republic of Crimea were adopted, transferred to foster families in the Russian Federation. Currently, the fate of these children remains unknown.