Information for U.S. Citizens Arrested in Ukraine

This page contains information about the Ukrainian criminal justice system.  Although believed to be generally accurate, neither the Department of State, its Diplomatic and Consular Missions, nor its employees accept any responsibility for the accuracy of the information contained herein.  U.S. citizens should not rely solely on this information, but should direct specific questions regarding Ukrainian criminal procedures to a qualified attorney licensed to practice law in Ukraine.

We must emphasize that changes in the Criminal Code, the Code of Criminal Procedure, and the regulations of any specific jail or prison may substantially limit the rights and privileges afforded to a U.S. citizen incarcerated in Ukraine.  It is the job of the incarcerated U.S. citizen’s attorney to keep him/her abreast of any changes.  This page was prepared solely as a guide to assist U.S. citizents in understanding the laws and procedures governing the Ukrainian legal and penal systems.  In particular, please note the following:

  1. The judicial system and personal rights one enjoys in the United States do not apply abroad.
  2. A U.S. citizen or national is entitled to claim consular protection abroad, regardless of evidence of guilt, the nature of the alleged crime, or the status of the citizen.
  3. Actions that can be taken on the arrestee’s behalf by U.S. Consular Officers include provision of needed consular services such as Emergency Medical/Dietary Assistance (EMDA), or administration of a trust fund in a timely and efficient manner.

All persons (excluding diplomats) staying in Ukraine (including transit zones at airports) permanently or temporarily are subject to Ukrainian laws.  They can be sued, tried and fined or sentenced in Ukrainian courts.  The Ukrainian government takes its laws and regulations very seriously, perhaps even more so when a foreigner is involved.

Investigations can be conducted by the Ministry of Internal Affairs (MVS), the Security Service of Ukraine (SBU), prosecutor’s offices, military detachment chiefs, prison or jail wardens, customs authorities, the fire control administration, border guard authorities, ship captains (when an incident takes place on the high seas), polar station directors (if transportation between the polar station and local law enforcement institutions is not available), and the tax police.

Ukraine and the United States do not have an extradition treaty.  Foreigners who commit serious crimes in Ukraine are, as a rule, tried and sentenced in Ukraine.

However, both countries are signatories to the Council of Europe’s Convention on the Transfer of Sentenced Persons.  This Convention provides for the transfer of prisoners serving a sentence in one country to their home country if certain conditions are met.  Please see the full text of the Convention or consult your attorney for more information.

A U.S. passport does not entitle the bearer to any special privileges or preferential treatment.  In spite of what you may have heard, neither the United States Government nor its representatives, such as U.S. Consular Officers, can get incarcerated U.S. citizens out of jail or prison.  The U.S. Citizen Services (ACS) Unit of the U.S. Embassy plays a protective role for U.S. citizens detained in Ukraine in ensuring that their fundamental human rights are respected and basic needs are met.  One of the main goals of ACS is to protect imprisoned U.S. citizens from any mistreatment from the side of both cellmates and prison authorities.

ACS and the State Department assist imprisoned U.S. citizens to contact people they desire and to stay in touch with their families and friends.  In cooperation with the family and friends of the arrested U.S. citizen, ACS appeals to prison authorities to arrange for supplemental food deliveries, as well as English language reading materials.  ACS will devote all possible efforts to work with prison doctors to ensure that prisoners receive adequate medical attention and treatment.  ACS staff can also serve as liaison between the prisoner and his/her lawyer.

The principal purposes of consular visits to an incarcerated U.S. citizens are:

To monitor the physical and mental well-being of incarcerated U.S. citizens or nationals;

To ensure that U.S. citizen or national inmates are being treated humanely in accordance with applicable agreements and commonly accepted international standards;

While the term “international standards” is subject to individual government’s interpretations, there are guidelines established by the UN, including:

  • Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment ;
  • Standard Minimum Rules for the Treatment of Prisoners ;
  • Principles of Medical Ethics …; and
  • Rules for the Protection of Juveniles Deprived of their Liberty .
    NB: Remember that these standards are only recommendations.  They do NOT have the strength of international law.

To ascertain if U.S. citizen prisoners may need emergency medical care;

To monitor whether attorneys retained by U.S. citizen inmates are in contact with them and rendering appropriate and adequate counsel and other legal services;

To keep up-to-date on the prisoners’ situations, so in turn Consular Officer can keep the Department of State, relatives and members of Congress informed;

To keep prisoners updated on any developments that may relate to their cases such as information obtained from defense counsels, prosecutors, judges, and any developments on the status of bilateral treaties relating to prisoner matters;

To identify and gain access to any other U.S. citizens or nationals whose arrest and imprisonment have not been reported by local officials or other sources;

To deliver medical or supplementary diet assistance under the EMDA program or funds received via OCS Trust;

To impress upon host country prison directors that the U.S. Government is sincerely interested in the welfare of its incarcerated citizens or nationals, regardless of the charges against them;

To nurture and maintain rapport and cooperative relationships with host country prison directors, law enforcement officials, prosecutors, etc.; and

To reassure the prisoners that the U.S. government has a sincere interest in their physical and emotional well being.

Ukraine is a successor to the 1964 Bilateral Consular Convention between the Soviet Union and the United States.  According to the Convention, Ukrainian authorities must notify the Embassy of the detention of a U.S. citizens within 72 hours of his or her detention.  The Embassy must be granted access to an imprisoned U.S. citizen within 96 hours after detention.  However, many Ukrainian government agencies appear to be unaware of this Convention and its provisions, which might cause additional delays in access.

At the initial visit the Consular Officer will provide the prisoner with a list of attorneys practicing in the area.  It should be noted that the Embassy is prohibited by law from recommending or endorsing particular firms, nor can legal advice be given.  The Embassy is concerned that the prisoner has a fair trial under Ukrainian law.

The Privacy Act of 1974 (Public Law 93-579) was enacted by Congress to protect you against unauthorized disclosure of information.  Therefore, if the prisoner wishes the Consular Officer to notify  his or her family and/or friends of the arrest, and at a later date, the status of the case, the prisoner must provide authorization by signing a Privacy Act waiver form.  ACS staff will notify only those individuals whom the prisoner specifies by name on the release form.

The Department of State is charged with the welfare and protection of U.S. citizens overseas.  To enable the Department to protect your legal and human rights, the ACS Unit sends regular telegraphic reports to Washington, D.C. regarding details of an arrest, the status of a trial or appeal, the prisoner’s health, anticipated date of release, and so forth.  Consular files are compiled primarily for the purpose of providing protection and assistance to U.S. citizens overseas, and not for law enforcement reasons.  However the Department of State can disclose information, which is a matter of public record, to other government agencies that have a legitimate interest on a need to know basis.  The Department of Justice and the Drug Enforcement Agency are two such agencies.

Thus, if the Department of State’s records on an individual seem to reasonably relate to law enforcement purposes in the U.S. or if there is knowledge that a prisoner is a fugitive from justice in the U.S., the appropriate law enforcement agency may be notified.  U.S. citizens who are arrested, convicted and imprisoned abroad are not liable for prosecution for the same crime upon return to the U.S. unless an outstanding U.S. arrest warrant exists.

Arrest records in Ukraine are a matter of public record.  The Department of State has no control in those cases where Ukrainian authorities pass information directly to their U.S. counterparts such as FBI.  Similarly, the Department of State has no control over the dissemination of information by Interpol.

Any person including foreigners has the right to be represented by an attorney-at-law, which may be either a private or a state attorney.  If you intend to employ a private lawyer, it is advisable to do so as early as possible.  A lawyer can be retained personally by the client (the accused), through his or her legal representative, or through other people appointed by the client.  In case of a lengthy absence of the chosen lawyer, the investigator and the court can suggest another lawyer be appointed by the accused, or even appoint one through the local Board of Lawyers.  The accused can change lawyers at any stage of judicial proceedings.  The Embassy has a list of lawyers practicing in Ukraine from which one can choose.  Prisoners’ attorneys are their primary source of advice.  Please note that Ukrainian lawyers practice law differently than U.S. lawyers.  Ukrainian lawyers may seem to be not very proactive, and inclined to discuss only certain things with the client. The role of a defense attorney in the Ukrainian judicial process is a more restricted one than in the United States.  A Ukrainian lawyer is not as active in court as an U.S. lawyer, due to the prominent role of the presiding judge.

Legal services are at the prisoner’s expense.  The State Department cannot provide funds for retaining a lawyer, but will contact the prisoner’s family and/or friends in the U.S. or anywhere else to request their financial assistance.

Legal fees are negotiated by the prisoner and his attorney.  Ukrainian criminal attorneys’ charges in Kyiv can climb up to $100-200 a day.  Alternatively, the client and attorney can agree to a fixed price for legal services regardless of how time consuming the proceedings are expected to be.  Normally, in both cases attorneys will request a down-payment from their clients at the beginning of the proceedings and will account for it at their conclusion.  Sometimes lawyers charge extra money for case-related expenses, for example telephone conversations with the prisoner’s relatives/friends, copy services, and taxi services.

A prisoner can demand to have his attorney present at every interrogation conducted by the investigator.  During the investigation stage, a prisoner might be interrogated quite often by the investigator assigned to the case, or not at all.  Technically a defense lawyer has a right to be present for any official interrogation, although in practice the opportunity is often overlooked.

 Under law a prisoner can hire any private interpreter or request the Ukrainian authorities to appoint one.  He/she can waive this right and use his/her Ukrainian/Russian language skills.  Due to the poor quality of court appointed interpreters, individuals relying on an appointed interpreter are often confused and frustrated during court proceedings.  An appointed translator can be replaced at the prisoner’s request.  On the other hand, the prosecution may not agree with the prisoner’s choice and require him to get another translator.  Usually, well-regarded private simultaneous translators in Kyiv charge not less than $15-20 an hour. 

Detention and arrest (remand) are regulated by the Ukrainian Code of Criminal Procedures.  A person who is detained is taken to the nearest police (militia) station in the area in which the offense or crime was allegedly committed or in which the person was seized.  The detainee must be informed of the reason for their detention.  At the police station the detainee is questioned in the presence of any two available witnesses.  A person can remain under detention for a period of up to three days.  The case investigator can request extension of this initial detention from the prosecutor’s office for a total period of up to ten days.  After this period detainee must be either formally charged in court or released.

If the detainee is charged with a crime, a judge determines whether the person is remanded into custody (i.e. “arrested”), released on bail, released into someone else’s custody,  or released on self-recognizance with or without conditions.

Under the Criminal Procedure Code of Ukraine, pre-trial investigation is limited to two months.  However, investigator can request an extension of this term from the regional prosecutor’s office or court for up to and additional four months.  Extensions beyond four months must be approved by the Prosecutor General of Ukraine, his deputies or judges of courts of higher jurisdiction.

By the time of trial, if a prisoner has not already retained a private lawyer, a state lawyer would be appointed to defend him/her free of charge.  A Ukrainian trial in general is a dramatically different affair than a U.S. court proceeding in terms of the roles of the actors involved.  Defendants in Ukraine are often called as the first “witness” in a criminal case and given ample opportunity to speak, to interrogate witnesses themselves, and to protest statements by witnesses, the prosecution or even challenge/recuse the judge for valid reasons.

There is no jury as in the U.S.  Instead, there is a presiding judge and two assistants (narodni zasedateli).  The latter cannot make decisions but rather advise the judge on rulings.  Prisoners should not expect the court hearings to start at the time they were scheduled.  Sessions are often delayed for one or two hours.  Among the most often of the mentioned reasons are judges’ illnesses, involvement in a different case, etc.  Another reason, odd as it might seem, is the court authorities’ lack of information whether the prisoner is brought to the court at all.

Trials are usually public.  Tape-recording and videotaping is usually allowed.  Anyone over 16 is allowed into the courtroom.  The judge and the assistants come in last.  Everybody must stand up when they enter.  Court records must be maintained by the court clerk in the course of the whole court hearing.  The hearing proceeds as follows:

  • Presiding judge first announces which case will be heard.
  • Court clerk informs the judge if the prosecutor, the accused, defense attorney, plaintiff, translators, experts and witnesses are present and reasons for absence (if applicable) of any of them.
  • Presiding judge explains to the translator their rights and responsibilities.
  • Presiding judge directs the witness(es) to leave the court room until the time of their testimony.
  • Presiding judge confirms the accused’s bio-data, place of residence, occupation, education, and marital status. Further, he asks if and when the accused was given the indictments, judge’s orders (if applicable) and plaintiff’s statements (if applicable).
  • Presiding judge announces the names of all the participants in the hearing.
  • Presiding judge explains to the accused their rights for a change of venue, prosecutor, court clerk, expert and translator.
  • Presiding judge explains to the plaintiff (if applicable) his rights.
  • Presiding judge explains to the expert (if applicable) his rights.
  • Presiding judge asks if the participants in the trial have any submissions. He can accept or dismiss them, or order them to be submitted later in the course of the trial.
  • In case of absence of one or more of the witnesses, the presiding judge, with the consent of the prosecutor and the accused, can waive their appearance and use their written statements instead.
  • The actual trial begins with the presiding judge reading the indictment.
  • Upon finishing it the judge asks how the defendant pleads.
  • The presiding judge discusses the succession of witness examinations with the prosecutor, the accused and their attorneys.
  • Witness examinations.
  • Prosecutor’s statement.
  • Attorney’s statement.
  • The final statement of the accused.
  • The judges retire from the courtroom to deliberate on their final verdict, which typically takes anywhere from several minutes to several hours.

Once the trial has started it usually continues without delay provided that all the witnesses are present.  The case cannot be transferred to another judge or delayed because of the judge’s involvement in another trial.

The end of the trial is the judge’s verdict read aloud after all participants of the hearing have spoken.  There are different scenarios based on the judge’s decision.  If a person is acquitted, he/she can be released right away in the courtroom.  If the decision is “guilty,” the prisoner is sent to prison to serve the remainder of the sentence minus any time served in pre-trial detention.

The defendant has the right to appeal the judge’s decision within 15 calendar days after the last day of the trial.  If the prisoner acquitted and is released in court, often he/she must stay in Ukraine until the end of the 15-day appeal period.  If no appeal is filed, the paperwork is completed on the 15th day, i.e. the judge puts the final signature on the appropriate document.

Even if accused is acquitted by the court, prosecutors can file an appeal with the Appeals Court.  Appeals on the decisions of the courts of “first jurisdiction” are filed with the regional courts of appeal.  Appeals courts can overrule the decision of the lower courts, return the case for additional investigation, return the case to the lower court (but with a different judge) for another hearing, or rule on the substance of the case.

Appeals on decisions of the Appeals Courts are filed with the relevant panel of the Supreme Court of Ukraine.  Usually, a panel of three Supreme Court judges reviews the case and decides whether the case is to be returned to the lower (Appeals) court, be heard by the Supreme Court, or be thrown out of the Supreme Court (this effectively means that the decision of the previous court is upheld without review).  All decisions of the Supreme Court are final and cannot be appealed or reviewed.

The following is an excerpt from the Department of State’s Human Rights Report for Ukraine 2008 available at the Department of State’s official website http://www.state.gov/ :

“Prison and Detention Center Conditions”

Prison and detention center conditions generally did not meet international standards; the government permitted visits by independent human rights monitors. According to NGOs, conditions in prisons remained poor but continued to improve slowly as a result of reforms in the penal system. Human rights groups continued to call for introducing full civilian oversight over the SPD by subordinating it to the Ministry of Justice and for the establishment of mobile monitoring groups to visit prisons, similar to those that visit police temporary holding facilities. According to the UHHRU, the absence of rigorous and impartial public oversight in SPD controlled facilities allowed serious problems such as beatings and unhealthy and unsafe living conditions. Human rights lawyer Arkadiy Bushchenko stated that the SPD relied on violence and cruelty to resolve violence among prisoners.

According to the SPD, as of October 1, 146,827 persons were detained in 184 facilities under its control. The SPD confirmed that in 2007, 729 individuals died while in custody, including those in pretrial detention facilities. Illness caused 673 of the deaths, while 54 resulted from suicide and two were homicides. The PGO reported that 397 prisoners died in the first six months of the year in SPD controlled facilities for convicted prisoners. Suicides accounted for 21 of these deaths.

As of November, authorities held almost 210,000 persons in police controlled facilities, 197,400 of whom were held in temporary holding facilities. Human rights organizations asserted that conditions in police temporary holding facilities and pretrial detention facilities were harsher than in low and medium security prisons. They were sometimes overcrowded or lacked adequate sanitation and medical facilities. The deputy head of the Cabinet Ministry’s Department on Law Enforcement and Justice Bodies, Tetyana Viktorova, stated that the government was concerned by the increase in the death rates in both prisons and pretrial detention facilities.

On December 10, Gazeta 24 reported that the SPD’s deputy chief Natalia Kalashnik believed that 88 percent of the country’s pretrial detention facilities were unsuitable for long term detention.

The SPD continued to deny allegations of the illegal use of force against prisoners. On August 27, deputy SPD head Mykola Iltyai told journalists that force was applied in cases specified by the law, such as when a prisoner tries to commit suicide or attacks prison personnel or fellow inmates.

Overcrowding and poor conditions in pretrial detention exacerbated the problem of tuberculosis (TB) among prisoners. Prison officials stated that mandatory screening of all new inmates for the disease reduced infection rates, and human rights organizations considered the presence of x ray machines in several prison facilities to be a positive development. According to the Web portal, Ukrprison, as of August, 149 TB infected inmates were isolated from the general population in a pretrial detention facility in Donetsk, with only one doctor to treat them. The SPD confirmed that in the first nine months of the year, 1,124 individuals in custody, 813 of them in correctional colonies and 311 in pretrial facilities, had an active form of TB.

Specialized medication was frequently not available for HIV infected prisoners. According to HRW’s annual report, there was no medication assisted treatment in prisons, which meant that drug users were forced to suffer from abrupt withdrawal when taken into custody.

Human rights groups claimed that authorities inappropriately used prisoners as laborers, failed to compensate them adequately for their work, and forced them to work in dangerous and unhealthy conditions.

The government permitted prison visits by human rights observers. Mobile monitoring groups, made up of representatives from human rights NGOs and interior ministry personnel, continued to visit police temporary holding facilities during the year. Human rights NGOs called for the establishment of similar mobile monitoring groups to visit prisons, run by the SPD. The SPD stated that it did not refuse visit requests by human rights organizations and that it cooperated with international and local NGOs. Prisoners and detainees were permitted to file complaints with the ombudsman concerning their conditions in custody, but human rights organizations noted that prison officials continued the practice of censoring or discouraging complaints. By law the prosecutor’s and ombudsman’s offices were obliged to disclose the names of inmates who filed complaints to the bodies against which they were filed, such as the SPD, subjecting the petitioners to possible reprisals from prison administrators.”

The internal rules any specific jail or correction institution are determined by Ukrainian law and regulations and, among other things, determine the number, size and content of parcels a prisoner is permitted to receive,  and the number and length of visits, mailings and phone calls the prisoner can make or receive.  In general, regulations are more permissive at lower security facilities.

In general, most prisoners can send and receive mail, receive short-term visitors and have long-term (up to three days) “stay-in” visits from close relatives (parents, spouses, and children).  These rights can be abridged by the prison administration if the prisoner has broken prison rules and/or is in solitary confinement.

In general, prisoners receive medical attention from the prison doctor.  In serious cases, they are transferred to a special security wing of an ordinary hospital for the length of their treatment.

Prisoners are allowed to maintain an account with the prison administration where they or others can deposit money.  A prisoner can spend this money to procure basic food and toiletry items at the prison store.

Please consult your attorney for more information regarding specific prison rules.