Period of detention of accused in POW camp is not a pre-trial detention and is not counted as time served - SC CrimCC

This conclusion was reached by the Criminal Cassation Court of the Supreme Court following the consideration of case No. 461/8598/23.

In this criminal case, the prosecutor argued that the appellate court had wrongly counted the time the convict had spent in a prisoner of war camp as part of his sentence, since the convict had not been subject to any preventive measure and had not been held in a pre-trial detention centre.

When overturning the decision of the court of appeal and ordering a retrial in the court of appeal, the Supreme Court noted that the places of detention of persons who have been chosen for preventive detention or who are subject to temporary or extradition detention, as provided for in part 1 of Article 4 of the Law of Ukraine "On Pre-Trial Detention", are the pre-trial detention centres of the State Criminal Enforcement Service of Ukraine, Brig of the Military Law Enforcement Service of the Armed Forces of Ukraine. In certain cases, determined by the need to conduct investigative actions, these persons may be held in temporary detention facilities. Thus, the concept of pre-trial detention is clearly defined in the current legislation of Ukraine and does not provide for its arbitrary interpretation.

At the same time, the accused was not subjected to a pre-trial restraint in the form of detention and was not held in a pre-trial detention centre or a temporary detention facility. He was captured by the Ukrainian Armed Forces during hostilities in the vicinity of Donetsk region and held in a prisoner of war camp in accordance with the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. Such detention was not related to the convict's criminal offences, and he was notified of suspicion while he was already in the POW camp.

Resolution of the Criminal Cassation Court of the Supreme Court of 19 September 2024 in case No. 461/8598/23 (proceedings No. 51-2167км24) - https://reyestr.court.gov.ua/Review/121847606.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.