CHANGE MEASURES

  A criminal lawyer proposes to consider a practical example of the release of a person from custody in connection with the presence of violations of the European Convention on Human Rights and Fundamental Freedoms and the incompatibility of the norms of the Criminal Procedure Code of Ukraine with international law.

  Thus, Article 29 of the Constitution of Ukraine guarantees: “Everyone has the right to liberty and security of person”.

  The analysis of the regulatory framework of the criminal procedural legislation of Ukraine establishes that, in accordance with part 1 of article 194 of the Criminal Procedure Code of Ukraine, when considering an application for the application of a preventive measure, the investigator must establish that the evidence provided by the parties to the criminal proceedings indicates that there is a reasonable suspicion a criminal offense, there are sufficient grounds to believe that x It would be one of the risks stipulated in Article 177 of the Criminal Procedure Code of Ukraine and indicated by the investigator, as well as the lack of application of milder measures to prevent the risks indicated in the petition.

 When deciding on the application of a preventive measure, the investigator is obliged to exercise the authority to exercise judicial control over the observance of the rights, freedoms and interests of persons in criminal proceedings during the pre-trial investigation and trial, to act in accordance with the requirements of the criminal procedure law.

  Taking into account the position of the legislator and judicial practice, the task of the investigator of the judge when considering the investigator’s petition to apply this or that preventive measure to a person is to prevent:

1) restriction of constitutional rights and personal freedoms in the absence of grounds provided for by the Code of Criminal Procedure of Ukraine;

2) unreasonable application to a person of a certain type of preventive measure, provided that the proper procedural behavior of the suspect can be ensured by electing a less strict type of preventive measure.

In order to ensure that the investigating judge fulfills the above requirements, the provisions of the Criminal Procedure Code of Ukraine entrust the investigator (prosecutor) with the corresponding petition to prove:

1) the reasonableness of the suspicion of a person committing a criminal offense;

2) the existence of real risks for criminal proceedings, the existence of which is confirmed by relevant, sufficient and admissible evidence;

3) the impossibility of achieving the goal in the case of a softer type

  Precautions than the application of which raises the question in the petition.

   When considering a petition to elect a preventive measure in the form of detention, the possibility of using other (alternative) measures must be considered (legal position set forth in paragraph 80 of the decision of the European Court of Human Rights of February 10, 2011 in the case of Kharchenko v. Ukraine) .

  According to the practice of the European Court of Human Rights, the validity of suspicion on which arrest should be based constitutes a substantial part of the guarantee against unjustified arrest and detention enshrined in Article 5 § 1 (c) of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by the Law of Ukraine on the ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the First Protocol and the Protocols 2, 4, 7 and 11 of the Convention dated July 17, 1997 No. 475/97-BP, hereinafter referred to as the Convention. By definition of the European Court of Human Rights, a reasonable suspicion of having committed a criminal offense, referred to in Article 5 § 1 (c) of the Convention, provides for circumstances or information that would convince an impartial observer that this person may have committed a certain crime (case K.-F. v. Germany, 27 November 1997, § 57).

  In addition, the investigating judge should analyze all risks identified by part 1 of article 177 of the Criminal Procedure Code of Ukraine, taking into account the specifics of the criminal proceedings and the identity of the suspect, as required by the norms of current legislation of Ukraine and international legislation, in particular the practice of the ECHR, which, in accordance with part 5 of Article 9 of the Code of Criminal Procedure of Ukraine is applied in the criminal procedural legislation of Ukraine (Decision in the case of Smirnova v. Russia, complaint No. 46133/99 and 48183/99, dated June 08, 1995 in the case of Yagchi and Sargin in Turkey “2 03/09/2008 in the case of” Vrenchev against Serbia, “etc.).

  In accordance with the requirements of paragraphs 3 and 4 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights, the restriction of the human right to liberty and security of person is possible only in cases stipulated by law in accordance with the established procedure. At the same time, the risk of concealing an accused from justice cannot be assessed solely on the basis of the severity of a possible judicial decision, and this must be done taking into account a number of relevant factors that may confirm the existence of such a risk, or testify that its insignificant degree cannot serve as a basis for a measure conclusions

  Thus, paragraph 80 of the decision of the European Court of Human Rights of February 10, 2011 in the case of Marchenko v. Ukraine stated: “The detention of a person will be arbitrary, since the national courts did not substantiate the need for such maintenance and did not consider the possibility of using softer of restraint, ”this is also indicated in paragraph 29 of the decision of the European Court of Human Rights of October 11, 2010 in the case of Khayreddinov v. Ukraine.

  At the same time, the absence of convictions, the presence of a permanent place of residence, work, an established lifestyle, dependents, and no attempt to evade justice testify in favor of release (Case of the European Court of Human Rights “Punzelt v. Czech Republic”).

In accordance with the requirements of paragraphs 3 and 4 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights, the restriction of the human right to liberty and security of person is possible only in cases stipulated by law in accordance with the established procedure. At the same time, the risk of concealing an accused from justice cannot be assessed solely on the basis of the severity of a possible judicial decision, and this must be done taking into account a number of relevant factors that may confirm the existence of such a risk, or testify that its insignificant degree cannot serve as a basis for a measure conclusions

  According to the case law of the European Court of Human Rights, national courts should find out whether a person is kept in custody before the trial, the only preventive measure that would ensure the person’s due process and procedural duties, as well as the possibility to limit it to strict (alternative) preventive measures.

  At the same time, it is taken into account that “the risk of escaping or avoiding justice” decreases with time, since the inclusion of the term of pre-trial detention in the term of punishment, which the applicant had reason to fear, reduces these fears and his intention to flee. At the same time, the absence of convictions, the presence of a permanent place of residence, work, an established lifestyle, dependents, and no attempt to evade justice testify in favor of the release (ECHR case “Punzelt vs. Czech Republic”).

  The general provision on reasonable terms in such cases is set forth in the legal position of the ECHR in the decision in the case of Kharchenko v. Ukraine, according to which the “reasonableness” of the term of detention cannot be assessed in the abstract. It must be assessed in each individual case depending on the particular case, the reasons referred to in the decisions of the national courts, the convincing arguments of the applicant, the possibility of his release. Continuing detention can be justified only if there is a specific public interest, which, despite the presumption of innocence, prevails over the principle of respect for individual freedom ”(paragraph 79 of the ECHR decision in the case of Kharchenko v. Ukraine of February 10, 2011).

  So, let’s take as an example when a person is accused of committing a crime under part 1 of Article 258-3 of the Criminal Code of Ukraine.

  According to paragraph 5 of Article 176 of the Criminal Procedure Code of Ukraine, preventive measures in the form of personal obligation, personal bail, house arrest, bail cannot be applied to persons suspected or accused of committing crimes under Articles 109-114-1, 258 -258- 5, 260, 261 of the Criminal Code of Ukraine.

  However, according to Art. 9 of the Code of Criminal Procedure of Ukraine if the provisions of this code contradict an international treaty, the consent to which is obligatory provided by the Verkhovna Rada of Ukraine, the provisions of the international treaty of Ukraine apply.

  Thus, a statutory ban on the possibility of using a milder repression in the form of a personal obligation is contrary to the Convention for the Protection of Human Rights and Fundamental Freedoms ratified by Ukraine on July 17, 1997 and the practice of the European Court of Human Rights.

  The courts of Ukraine in the consideration of cases apply the Convention and the practice of the European Court as a source of law (Article 17 of the Law of Ukraine “On the implementation of decisions and the application of the practice of the European Court of Human Rights”).

  If your rights and freedoms have been violated, you need a good criminal lawyer Kiev, who has experience in law enforcement, and is valued higher than a regular lawyer, because he knows the methods and tactics that law enforcement officers apply to the suspect.

Author: Andrey Kubov

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