Legal regulation of appealing illegal detention

Legal regulation of appealing illegal detention

In the laws of Ukraine, the cases of detention and the grounds for detention are clearly defined, as well as the actions of law enforcement officers during the detention of individuals. However, there are cases where detentions occur under circumstances that do not give anyone, including law enforcement officers, the right to detain individuals. Such actions are classified as illegal detention, which a person can appeal and prove illegal in court. Moreover, if a law enforcement officer used unjustified violence during detention, this may have signs of a criminal offense that can be proven in the course of criminal proceedings. In this article, we will examine the grounds for detention in Ukraine, the grounds for the use of special means and force during detention, the procedure for protection in cases of illegal detention, and the procedure for holding law enforcement officers accountable for exceeding their official powers during detention.

Grounds for detention in Ukraine

According to Article 29 of the Constitution of Ukraine, everyone has the right to liberty and personal security. No one can be arrested or held in custody otherwise than by a reasoned court decision and only on the grounds and in the manner prescribed by law. The main grounds for detention are determined by the Criminal Procedure Code of Ukraine (CPC):

• Detention without a decision of an investigating judge or court (Article 208 of the CPC of Ukraine):

A person may be detained without a decision of an investigating judge or court if they are committing or have committed a crime, and if there are sufficient grounds to believe that they are trying to avoid detention or their identity cannot be established.

• Detention on the basis of a decision of an investigating judge or court (Article 207 of the CPC of Ukraine):

Detention may be carried out on the basis of a decision of an investigating judge or court if there are sufficient grounds for suspicion of committing a crime and the necessity of detention to ensure the investigation of the criminal case.

Grounds for the use of force and special means during detention

The rules for the use of force and special means during detention are regulated by the Law of Ukraine "On the National Police" and other normative legal acts. The main grounds include:

1. Protection of the life and health of citizens or a police officer: Police officers have the right to use force when necessary to protect the life and health of citizens or police officers from immediate threat.
2. Preventing the escape of an offender: Force may be used to detain a person who resists detention or attempts to escape.
3. Stopping offenses: Special means may be used to stop offenses if other methods have not yielded results.

Procedure for appealing illegal detention

Illegal detention in Ukraine can be appealed through mechanisms defined by legislation. The main procedures for appealing illegal detention are regulated by the Constitution of Ukraine, the Criminal Procedure Code of Ukraine (CPC), and the Law of Ukraine "On Prevention and Counteraction to Corruption".

Main stages of appealing illegal detention

• Аppeal to the police or prosecutor's office

After illegal detention, the person or their representative can appeal to the police or prosecutor's office with a statement about the illegal detention. The statement must specify all the circumstances of the detention, the available evidence of the illegality of the actions of law enforcement officers, and a request for a review of the legality of the detention.

• Filing a complaint with an investigating judge

If the statement is not satisfied, the next step is to file a complaint with an investigating judge. According to Article 206 of the CPC of Ukraine, the detained person or their lawyer has the right to file a complaint with an investigating judge. The complaint should state the circumstances of the illegal detention, the violation of the detainee's rights, and the demand for release and compensation.

• Review of the complaint by the court

The investigating judge must review the complaint within 72 hours of its receipt. The judge may call the representatives of the authorities who carried out the detention to provide explanations. If the court finds that the detention was illegal, it can issue a decision on the immediate release of the person and compensation for damages.

• Appealing the court's decision

If the decision of the investigating judge does not satisfy the detained person or their representative, it can be appealed in a higher court. Appealing the decision of the investigating judge is carried out in accordance with the rules of appellate and cassation proceedings.

Participation of a lawyer in the appeal process

• consultation with a lawyer

A lawyer provides a consultation on the rights of the detained person and the possibilities for their protection. The consultation includes a legal analysis of the situation, an explanation of procedural actions, and assistance in drafting statements and complaints.

• Drafting and filing complaints

A lawyer helps draft and file complaints with the relevant authorities, accompanies the detained person in all procedural actions, ensuring professional protection of their rights.

• Legal analysis of documents

A lawyer conducts a legal analysis of documents related to the detention, checks the legality of the actions of law enforcement officers, and identifies possible violations of the law.

• Representation in court

A lawyer represents the interests of the detained person in court, provides the necessary evidence and arguments in favor of the client, and protects their rights and interests during the court proceedings.

Responsibility for the use of violence – exceeding official powers during detention

Responsibility for exceeding official powers during detention is established by the Criminal Code of Ukraine (Article 365). The use of unjustified violence during detention can be qualified as exceeding official powers and is punishable by criminal law.

Initiating the process of bringing to justice:

A statement about the crime can be filed with law enforcement agencies. A lawyer helps prepare the statement and accompanies the process of its review.

Participation of a lawyer:

A lawyer represents the interests of the victim, provides legal support for the case, submits the necessary documents, and challenges the actions of law enforcement agencies.

Compensation for damage due to illegal detention and the use of unjustified violence during detention

Individuals who have suffered illegal detention and violence may be compensated for damages in accordance with a court decision.

Types of damage subject to compensation:

• Material damage (medical expenses, loss of income).
• Moral damage (psychological trauma, damage to reputation).

Procedure for compensation:

• Filing a lawsuit in court.
• Consideration of the case in court and issuance of a decision.

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