Appeal against illegal detention

Any citizen of Ukraine is not immune from detention by representatives of law enforcement agencies. In the vast majority, this applies to successful people who are connected with business. In this article, we will consider the specifics of the procedure for challenging illegal detention. This is one of the services provided by the specialists of our Prykhodko and Partners law office.

Detention of a person: what to remember?

Let’s start with the fact that the detention of a person is a short-term, temporary preventive measure, the purpose of which is to ensure the effectiveness of criminal proceedings.

As a rule, the detention of a person is urgent and occurs suddenly, and therefore the Law does not require the permission of a court or an investigating judge. The exception is detention for the purpose of pretexting on the basis of the relevant resolution. At the same time, we note that the detention procedure should be treated with special attention. This is due to the fact that such actions are accompanied by the restriction of freedoms and constitutional rights of a person.

According to Article 3 of the Constitution of Ukraine, a person’s life and health, his right to safety and inviolability are the highest social value that should be protected.

Detention of a person is possible in the following cases:

• Committing an offense by a person here and now.
• The person does not have documents (in this case, we are talking about the commission of a minor offense).
• Obvious criminal actions of a person.

On suspicion of committing a crime, a person can be held at the police station for no more than 24 hours. At the end of this period, the law enforcement officers must provide the detainee with the appropriate document. We are talking about a report of suspicion. This document must specifically state what the person is suspected of. The suspect has the right to check the legality of detention (Part 3 of Article 12 of the Criminal Procedure Code of Ukraine).

The practice of challenging illegal detention

Quite often, investigating judges refuse to satisfy a lawyer’s complaint that detention is illegal. How do they justify their position? First of all, the existence of a legal basis for keeping a person in custody. In the event that the suspect is not yet in custody, the investigating judge may also refuse to challenge the illegal detention. The main argument in this situation is that the investigating judge does not have the authority to consider the case of a person who is not in custody. However, similar judicial practice goes against the legal positions of the ECtHR. All international standards for verifying the legitimacy of detention must be followed.

Most often, the defense party initiates the issue of checking the legality of detention at the moment when the request of the prosecutor or investigator to apply a preventive measure to the suspect is being considered. The current legislation does not provide for a mandatory notification regarding the justification for the selection of this or that preventive measure.

Prykhodko and Partners lawyers have the necessary practical experience to challenge illegal detention. Unfortunately, modern Ukrainian legislation does not have a clear mechanism for challenging illegal detention at the stage of pre-trial investigation. It should be perfect and clear. This is the basis for realizing the constitutional right of every citizen of Ukraine to personal integrity and freedom.

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