Personal guarantee as a type of preventive measures in criminal proceedings

BASE (basic) 7.81

advertisement

Ланткевич Кирило

Lawyer

Ukraine / Dnepropetrovsk region

i

Reading time: 13 minutes Total views: 66

Rate:

0

Publication date: 07.07.2024

I am studying in the third year of the State University of Economics and Technology.I specialize in contractual, economic and corporate law, in particular, I provide consultations and write articles.

Ukrainian legislation provides for the selection of preventive measures in criminal proceedings in order to ensure justice, prevent evasion of responsibility and ensure public safety. Here are the key conditions that must be met in order to choose a precautionary measure:

• Presence of reasonable suspicion. The first and most important condition under which it is possible to choose a preventive measure is the presence of a well-founded suspicion, that is, the assumption of the investigator, the prosecutor that a certain person has committed a criminal offense, which takes the form of a procedural document and is the basis for the person to acquire a new status - the status of a suspect in criminal proceedings. The validity must be confirmed by certain evidence available to the prosecution.
• Presence of risks. The second condition is the presence of risks provided for in Art. 177 of the Criminal Procedure Code among them: the risk of influencing the participants in the process, the risk of committing a new criminal offense, the risk of the suspect evading the investigation and the court, etc. Each of the risks that the prosecutor or investigator notes in the request for the selection of a preventive measure must be supported by relevant evidence.

Personal surety as a preventive measure in criminal proceedings:

The main aspects of personal surety in criminal proceedings include:

• Purpose: Personal surety may be used to secure the execution of court orders, conditions of release from suspicion, or options for the release of a suspect or accused person.
• Requirements for guarantors: Guarantors are persons who, by virtue of their status or other circumstances, are trustworthy, and they must give a written commitment to fulfill the conditions imposed on the suspect or accused.
• Bail conditions: The decision on the application of personal bail defines the conditions that the suspect or the accused must comply with, for example, regarding a change of residence, a ban on leaving the place of residence without permission, the obligation to appear when summoned by the court, and others.
• Liability for Violation: Violation of the terms of the personal surety may result in the application of sanctions, including the change of the preventive measure to a more severe or compulsory performance of obligations.
• Modification or cancellation: The court may modify the conditions or cancel the personal guarantee depending on the circumstances of the case and compliance with the prescribed requirements.

The procedure for applying a preventive measure:

1. Initiation of proceedings: The first step is an appeal by an authorized entity, namely an investigator or a prosecutor, to an investigating judge (during a pre-trial investigation) or a court (during a court proceeding) with a corresponding request.The content of the request is clearly regulated by the current legislation. The authorized person must prepare three copies of such a petition, one of which is given to the suspect or accused three hours before the beginning of consideration of the petition in court.It is worth noting that the prosecutor or investigator can withdraw. supplement or change the submitted request.
2. Consideration of the motion: The investigating judge or the court considers the motion of this nature urgently. The parties - the prosecutor, the lawyer of the suspect or the accused have the opportunity to discuss the necessity of applying a preventive measure, express their arguments and present evidence that could influence the court's decision.
3. Court decision: The judge makes a decision to apply (or refuse to apply) a preventive measure. The court's decision must be substantiated and based on the factual data and legal grounds available in the case.

Guarantor's responsibility:

In the event that the guarantor fails to fulfill the obligations assumed during the criminal proceedings, a monetary penalty may be applied as a measure to ensure this proceeding. In accordance with the legislation of Ukraine, sureties for the application of monetary penalties have the following key aspects:

• Purpose of the measure: A monetary penalty may be prescribed as a measure to ensure the fulfillment of certain obligations that the surety has undertaken for suspicion of criminal proceedings. This may include an obligation to release the suspect with a request for leave, not to leave the place of residence without permission, to appear when summoned by a court or investigation, etc.
• Amount of penalty: The amount of monetary penalty is determined according to the terms and circumstances of the case, including the seriousness of violations and the possible consequences of failure to fulfill obligations.
• Enforcement Mechanisms: Monetary recovery is usually carried out through mechanisms that provide control over financial payments or security of other values ​​that can be used to fulfill obligations.
• Other measures: In case of systematic failure of the surety to fulfill his obligations, the court may also take other enforcement measures, such as changing the preventive measure to a more severe one or imposing other restrictions on the surety.

Assistance of a lawyer when choosing a preventive measure:

The role of the lawyer in choosing a preventive measure in the criminal process is critically important, as he represents the interests of the suspect or the accused before the court and ensures that their rights are respected. Here are the key aspects that may require review of documents by a lawyer:

• Representation and protection of the rights of the suspect or the accused: The lawyer's help online ensures that the interests of his client are properly represented before the court. He uses his knowledge of the law and procedures to protect the client from the improper application of preventive measures or to minimize their impact.
• Preparation and verification of documents by a lawyer: After conducting a legal analysis of the situation, the lawyer prepares all the necessary documentation, arguments and evidence that can support the arguments in favor of his client regarding the unjustification of the application of a preventive measure or the need to change the conditions or cancel the measure.
• Presentation of evidence and proof of arguments: The legal opinion of a lawyer has the opportunity to present testimony and other evidence that may affect the decision on the issue of choosing a preventive measure. He also conducts cross-examination of witnesses and other participants in the process in order to collect relevant information.
• Consultation of a lawyer and interaction with the client: The lawyer online provides the client with comprehensive written consultation on the legal situation, the choice of defense strategy and possible consequences, analysis of documents in the case. The lawyer's legal opinion also provides the client with a full understanding of his rights and obligations in the context of choosing a preventive measure.
• Participation in court hearings: The lawyer actively represents the interests of the client during court hearings, arguing his positions regarding the selection or cancellation of a preventive measure, formalizing it in a certain legal opinion.