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Publication date: 03.04.2024
In modern society, ensuring the rule of law and effective functioning of justice is one of the key prerequisites for stability and security. One of the instruments that serve these goals is the application of precautionary measures in criminal proceedings. Achieving a balance between protecting the rights of suspects and defendants and the need to ensure societal security is a complex task that requires careful consideration of all circumstances of the case. In this article, we will examine the main aspects of applying precautionary measures in accordance with the Ukrainian Criminal Procedure Code.
Precautionary Measures, Their Types, Purpose, and Grounds for Application
In criminal proceedings, precautionary measures are an important instrument aimed at maintaining the rule of law, preventing evasion of responsibility, and ensuring the procedural interests of participants in criminal proceedings. They can be applied during the investigation, transfer of the case to court, as well as during the trial of a criminal case in court.
The exhaustive list of precautionary measures is defined by the Criminal Procedure Code of Ukraine, which includes: personal obligation, personal bail, bail, house arrest, and detention. Their purpose is to ensure public safety, preserve evidence, and ensure the presence of the suspect or defendant during procedural actions.
The grounds for applying precautionary measures are the existence of sufficient grounds to believe that the suspect or defendant may commit new crimes, evade responsibility, or hinder the investigation.
Defense Attorney's Work When Choosing a Precautionary Measure
The defense attorney's work when choosing a precautionary measure involves establishing facts, proving circumstances, and presenting evidence to the investigator or court that would confirm the absence of reasonable suspicion that the suspect committed the alleged crime, or proving that the risks alleged by the prosecutor can be prevented by applying a milder precautionary measure, or even refuting and proving the absence of the risks alleged by the prosecutor.
Circumstances Considered When Choosing a Precautionary Measure
When choosing a precautionary measure, the investigating judge and the court take into account a number of circumstances that may influence the choice of a specific measure. These include the nature of the crime, the weight of the evidence, the presence or absence of criminal activity in the past, family status, health status of the suspect or defendant, their financial situation, as well as the possibility of interfering with the investigation, the risk of continuation or repetition of unlawful behavior, the amount of damage caused, the presence of previous convictions, and the reputation of the suspect.
During the defense of the suspect, the defense attorney considers each circumstance evaluated by the court as required by the Criminal Procedure Code of Ukraine. Taking into account all the circumstances of the case and in accordance with the tactics and strategy of defending the client, the defense attorney provides the court with information about important circumstances and substantiates them with evidence for the court to consider when choosing a precautionary measure.
Procedure for Cancelling or Changing a Precautionary Measure
A precautionary measure may be cancelled or changed if there is a change in circumstances that led to its application, or if there is no further need for its application. The procedure for cancelling or changing a precautionary measure involves submitting a relevant motion to the investigator, prosecutor, or court.
Procedure for Applying the Precautionary Measure of Detention and Extending the Period of Detention
Detention is one of the most severe precautionary measures and can only be applied in cases where other measures are considered insufficient to ensure procedural interests. The period of detention by court decision cannot exceed sixty days. After that, the court reviews the grounds for detention upon the motion of the prosecutor or investigator with the prosecutor's consent and either extends the period of detention or releases the person from detention.
The legislator has limited the total period of detention of a suspect during the pre-trial investigation. Thus, in criminal proceedings for a minor offense, detention cannot exceed six months, in serious or particularly serious crimes - twelve months.
Deadlines and Procedure for Filing a Motion to Change the Precautionary Measure and an Appeal Against the Ruling of the Investigating Judge on the Application of the Precautionary Measure
In case of new circumstances that were not considered by the court when choosing a precautionary measure, the suspect, defendant, and their defense attorney have the right to file a motion to change the precautionary measure, cancel it, or change the imposed obligations.
The ruling of the investigating judge on the application of a precautionary measure can be appealed by filing an appeal to the appellate court.
An appeal against the ruling of the investigating judge or the court on the application of a precautionary measure in the form of detention is submitted directly to the appellate court within five days from the date of its announcement.
Conclusion
Ensuring the rule of law and safeguarding the procedural interests of participants in criminal proceedings is an integral part of justice. Precautionary measures play an important role in achieving these goals by ensuring societal security and compliance with the law. However, it is also important to adhere to the principles of justice and human rights protection to prevent precautionary measures from becoming a tool of abuse of power. Adequate application of these measures plays a crucial role in maintaining the rule of law and ensuring human rights and fundamental freedoms.
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