In defending the client’s interests, the lawyer should actively exercise the right to request changes or revocation of precautionary measures when justified by the circumstances of the case, in particular if the criminal proceedings change the grounds for precautionary measures and the circumstances taken into account in his election.
A change of precautionary measure is also possible in the event that during the pre-trial investigation or court proceedings a mental illness of the suspect, accused is established and there is a need to place him in a psychiatric institution. The measure of restraint may be changed if the circumstances that were taken into account when choosing the measure of restraint have changed significantly (for example, the person has his or her own home or another person has consented to the suspect’s house arrest in his or her home). ; the qualification of the criminal offense has changed; the state of health of the accused has deteriorated, etc.).
The reason for changing the precautionary measure may be the emergence of new circumstances after the previous decision to apply the precautionary measure, as well as the identification of those that existed before, but which were not known to the investigator, prosecutor, protection at the time of the precautionary decision. The need to change the precautionary measure to a milder one may arise when the previously selected precautionary measure expires.
Change, cancellation of a precautionary measure is carried out as a result of consideration of the petition with which to the investigating judge, court can address: the prosecutor, the investigator in coordination with the prosecutor – concerning change of a precautionary measure, including concerning cancellation, change or assignment of additional duties. Article 5 194 of the CPC, or on changing the method of their implementation (Article 200 of the CPC); – the suspect, the accused and his defense counsel.
When deciding on the change or cancellation of a precautionary measure when considering the relevant petitions, the investigating judge, the court must always:
– to exercise the powers of 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;
– remember that the criteria for choosing a precautionary measure are provided in Part 1 of Art. 194 CCP;
– to check the existence of grounds and purpose of the application of a precautionary measure in criminal proceedings, to establish the validity of such grounds in view of the factual data, the specific circumstances of the criminal proceedings;
– take into account that precautionary measures in criminal proceedings limit a person’s rights to liberty and security of person, guaranteed by Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and therefore can be applied only if there is a legitimate purpose and grounds set out in the CPC, taking into account the relevant case law of the European Court of Human Rights;
– take into account that detention is an exceptional type of precautionary measure and is applied only if the prosecutor proves that none of the more lenient precautionary measures will be able to avert the risks specified in Art. 177 of the CCP.
Thus, the defense counsel’s exercise of the right to request a change or revocation of a measure of restraint is a guarantee of observance of constitutional human rights and freedoms for the suspect or accused.