Publication date: 06.06.2024
Application of Precautionary Measures in Criminal Proceedings: Practice and Problems
Introduction
Interim measures are an important tool of the criminal process, allowing to ensure that the accused fulfills his/her procedural obligations and prevent possible violations during the pre-trial investigation and trial. However, their application is often accompanied by a number of problems of both legal and practical nature. In this article, we will consider the main aspects of the application of preventive measures in criminal proceedings, as well as the main problems faced by law enforcement agencies.
Classification of Precautionary Measures
Types of Precautionary Measures
- Personal obligation: The defendant undertakes to fulfill certain obligations, such as appearing before the investigator or court when summoned.
- Personal guarantee: A guarantee for the accused by other persons who guarantee his or her proper behavior.
- House arrest: Restriction of freedom of the accused who undertakes not to leave his/her home without permission.
- Bail: A sum of money paid by the accused or another person as a guarantee of his or her good behavior.
- Detention: The most severe measure of restraint, which consists in depriving the accused of his or her liberty during the pre-trial investigation and trial.
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Practice of Application of Precautionary Measures
Precautionary Measure Selection Criteria
- Severity of the crime: The choice of a preventive measure depends on the gravity of the crime and the possible consequences for society.
- The personality of the accused: The characteristics of the person, his or her previous convictions, health, social status, and other factors are taken into account.
- Risks: Risks are assessed, such as the possibility of escape, the impact on witnesses or other participants in the process, and the destruction of evidence.
Application statistics
- Preferences: In many jurisdictions, detention is the most common preventive measure, which has been criticized by human rights defenders.
- Alternative measures: The use of alternative measures of restraint, such as bail or house arrest, is often limited due to insufficiently developed procedural mechanisms or lack of trust in them.
Problems with the Application of Precautionary Measures
Human Rights Violations
- Excessive use of detention: The frequent use of detention as a preventive measure may violate human rights, in particular the right to liberty and security of person.
- Conditions of detention: Inadequate conditions of detention, including overcrowding in pre-trial detention centers and lack of adequate medical care.
Lack of Alternatives
- Lack of confidence in alternative measures: Judges and investigators often favor detention due to a lack of confidence in the effectiveness of alternative measures.
- Limited resources: Lack of resources to monitor compliance with the conditions of house arrest or personal recognizance.
