Publication date: 26.06.2024
active and purposeful military lawyer with more than 4 years of experience
Arrest as a procedural action
Introduction
Arrest is one of the most serious and at the same time the most widespread measures of criminal procedural coercion, which is applied by pre-trial investigation bodies and the court to suspects, accused persons and other participants in criminal proceedings. Despite its importance, the arrest procedure and its legal regulation are often debated among scholars and practitioners. In this article, we will consider the essence of arrest, its legal regulation and guarantees of ensuring the rights and freedoms of persons to whom it is applied.
Concept and types of arrest
According to the current legislation, an arrest is the detention of a person for a certain period of time based on a court decision.Arrest is used to prevent attempts to evade criminal responsibility, obstruct criminal proceedings or continue criminal activity.
The Criminal Procedure Code of Ukraine provides for two main types of arrest:
Detention as a precautionary measure. This is the strictest type of preventive measure, which is chosen by the investigating judge, the court in cases where there are reasonable risks provided for in Art. 177 of the CPC of Ukraine.
Seizure of property. This is a type of temporary limitation of the right of ownership, which is used to secure a civil lawsuit, possible confiscation of property, or recovery from a legal entity of an unlawful benefit.
In addition to these main types, criminal procedural legislation also provides for arrest as a temporary restriction of a person's right to freedom of movement (detention) and arrest as a preventive measure in the form of house arrest.
Legal regulation of arrest
The arrest procedure is primarily regulated by the Criminal Procedure Code of Ukraine. Thus, Chapter 18 of the Criminal Procedure Code defines the grounds, the procedure for choosing, appealing and canceling a preventive measure in the form of detention. Certain issues related to the seizure of property are regulated by Chapter 17 of the Criminal Procedure Code. Detention of a person is regulated by Art. 207-213 of the CCP.
In addition, other legal acts are also important for the legal regulation of arrest:
The Constitution of Ukraine, which guarantees everyone the right to freedom and personal integrity (Art.29);
Convention on the Protection of Human Rights and Fundamental Freedoms, which provides for the right to freedom and personal integrity (Article 5);
The Criminal Code of Ukraine, which establishes grounds for seizure of property.
Resolutions of the Plenum of the Supreme Court of Ukraine, which provide clarification on the application of legislation when choosing a preventive measure in the form of detention, are also of some importance.
Guarantees of rights and freedoms when arrest is applied
Despite the fact that arrest is a serious limitation of the rights and freedoms of a person, the criminal procedural legislation establishes a number of important guarantees designed to ensure compliance with human rights when it is applied.
First, these are procedural guarantees. Arrest (with the exception of detention) can be applied only by a court decision. The decision to apply a preventive measure in the form of detention is made by the investigating judge, the court at the request of the prosecution. Such a decision must be motivated and contain a reference to specific circumstances justifying the need to choose this preventive measure.
Secondly, the legislation provides for temporary guarantees. The term of detention as a preventive measure is limited and depends on the gravity of the crime charged. The term of seizure of property also has certain time limits.
Thirdly, an important guarantee is the right of a person to challenge the arrest applied to him. Decisions on the selection, extension or change of a preventive measure in the form of detention may be appealed by the suspect, the accused, his defense counsel or legal representative. The decision to seize property can also be appealed by the owner of the property.
It is also worth mentioning the medical, household and other guarantees of the rights of persons subject to arrest. In particular, the law provides for the right of an arrested person to receive medical assistance, see relatives, receive transfers, etc.
Conclusions
Arrest is one of the most important measures of criminal procedural coercion, the use of which significantly limits the rights and freedoms of a person.At the same time, the criminal procedural legislation establishes a number of important guarantees aimed at ensuring the observance of human rights when applying arrest. These guarantees include both procedural requirements for the order of attachment, time and other limitations, and the possibility of appealing the attachment decisions. In general, arrest is a necessary tool for ensuring effective criminal proceedings, but its application must strictly comply with the requirements of the law and the principles of the rule of law.
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