In protecting the interests of the client, the lawyer must actively use the right to submit petitions for changing or abolishing precautionary measures when justified by the circumstances of the case, in particular if the grounds for the application of a preventive measure change in the course of criminal proceedings, as well as the circumstances that are taken into account when it is elected.

A change preventive measure is also possible if in the course of a pre-trial investigation or judicial proceedings a suspect, accused person’s mental illness is established and there is a need for him to be placed in a psychiatric institution. The precautionary measure may be amended if the circumstances that were taken into account when choosing a preventive measure have substantially changed (for example, a person has his own accommodation or another person has agreed to stay a suspect accused of house arrest in the home that he owns ; the qualification of a criminal offense has changed, the health status of the accused has deteriorated, etc.).

The reason for changing the precautionary measure may be the emergence of new circumstances after the adoption of a preliminary decision on the application of a preventive measure, as well as the identification of those that existed before, but not known to the investigator, prosecutor, at the time when the decision to apply a preventive measure was taken. The need to change the precautionary measure to a milder one may arise in the event of expiration of the previously chosen preventive measure.

A change, cancellation of a preventive measure is carried out on the basis of the results of consideration of the petition with which the court may apply to the investigating judge: the prosecutor, the investigator, in agreement with the prosecutor, regarding the change of the preventive measure, including the abolition, modification or imposition of additional duties provided for in paragraph 5 tbsp. 194 CPC, or about changing the way of their execution (Article 200 of the CPC); – the suspect, the accused and his counsel.

In resolving the issue of changing or abolishing a preventive measure in considering the relevant petitions, an investigating judge, the court must each time:

– exercise powers of judicial control over the observance of the rights, freedoms and interests of persons in criminal proceedings during pre-trial investigation and judicial proceedings, act in accordance with the requirements of the criminal procedural law;

– remember that the criteria for the selection of a precautionary measure are provided in Part 1 of Art. 194 CPC;

– to check the existence of the grounds and purpose of the application of a preventive measure in criminal proceedings, to establish the justification of such grounds, taking into account actual data, established the specific circumstances of the criminal proceedings;

– to take into account that precautionary measures in criminal proceedings restrict the rights of a person to freedom and personal integrity, guaranteed by Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and therefore can only be applied if there is a legitimate aim and the grounds defined by the CPC, taking into account the relevant practice of the European Court of Human Rights;

– to take into consideration that detention is an exceptional type of preventive measure and applies only if the prosecutor proves that none of the milder preventive measures will be able to divert the risks specified in art. 177 CPC.

Consequently, the use by a lawyer of the right to apply for a change or revocation of a preventive measure is a guarantee of observance of constitutional rights and freedoms of a suspect or accused person.

Author: Ivan Ishchuk

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