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Today, more than ever, our state needs to attract foreign investment, primarily in infrastructure projects, which is the key to economic growth and the state's recovery from the crisis. Weekly,…

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The principle of applying “tacit consent”
Today, more than ever, our state needs to attract foreign investment, primarily in infrastructure projects, which is the key to economic growth and the state's recovery from the crisis. Weekly,…

Continue reading →

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Justification of a suspected criminal offense

The adoption of the new Code of Criminal Procedure of Ukraine in 2012 marked the beginning of a new milestone in the development of national criminal justice. A number of provisions of the new Code of Criminal Procedure of Ukraine is unquestionably progressive and comply with European and international standards of criminal justice. However, over time the situation is quite the opposite, and the criminal procedure rules make it difficult to protect the rights and freedoms of a person and bring them to justice.

Almost the most difficult problem at present is the application of measures to the suspect / accused. Composing the content of the restriction of the rights and freedoms of a citizen who at the time of the application of the preventive measure has not yet been found guilty of a crime, they are in fact the initial reaction of the state in the person of the court (investigating judge) to the fact of notifying the person of suspicion. Given the subjectivity of the report of suspicion (which is actually only the initial position of the prosecution) and the lack of the possibility of appealing the notification of suspicion in the new Code of Criminal Procedure of Ukraine, it should be considered that the application of measures should be very careful and justified objective.

The purpose of the proposed article is to establish the legal problem of ensuring the procedural rights of a person in respect of whom measures are taken to substantiate suspicions and to formulate proposals for improving this institution of criminal justice.

Article 9 of the Universal Declaration of Human Rights of 12/10/1948 determines that no one may be subjected to arbitrary arrest, detention or exile, and in Part 1 of Art. 11 indicates that each person accused of committing a crime has the right to be presumed innocent until proved guilty by law through a public trial, in which he is provided with all opportunities for protection.

In Art. 62 of the Constitution of Ukraine stipulates that a person is presumed innocent of committing a crime and cannot be subjected to criminal punishment until his guilt is proved legally and established by a guilty verdict. No one is obliged to prove his innocence of a crime. The charge cannot be based on evidence obtained illegally, as well as on assumptions. All doubts regarding the proof of guilt of a person are interpreted in his favor. In the event of the annulment of the court verdict as unjust, the state shall compensate the material and moral damage caused by the groundless conviction.

In h. 1 Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, it is determined that everyone has the right to liberty and security of person. No one may be deprived of liberty except in the following cases and in the manner prescribed by law:

(a) The lawful detention of a person convicted by a competent court;

b) the lawful detention or detention of a person for failure to comply with a legal order of the court or to ensure the fulfillment of any obligation prescribed by law;

c) the lawful detention or detention of a person so that he appears before the competent authority on reasonable suspicion of an offense or, if reason is found, to believe that it is necessary to prevent the offense or prevent him from hiding after his commission;

d) the detention of a minor on the basis of a lawful order for educational supervision or his lawful detention of a minor with a view to bringing him to the competent authority;

e) the lawful detention of persons in order to prevent the spread of infectious diseases, the lawful detention of mentally ill, alcoholics, drug addicts or vagrants;

f) the lawful detention or detention of a person in order to prevent his illegal entry into the country or of the person against whom measures are being taken to expel or extradite him.

These grounds, in addition to those provided for in paragraph “E”, are obviously more related to criminal proceedings. At the same time, the institution of preventive measures in criminal proceedings is more consistent with the basis provided for by paragraph “C”. One of the grounds for recognizing the lawfulness of the arrest under this item is a reasonable suspicion.

In h. 2 Article. 177 of the Code of Criminal Procedure of Ukraine provides that the basis for the application of a preventive measure is the existence of a reasonable suspicion of a person committing a criminal offense, as well as the existence of risks that provide sufficient grounds for the investigating judge, the court to consider that the suspect, accused, convicted person can take the actions provided for in paragraph 1 of this article (hide from pre-trial investigation bodies and / or court; destroy, hide or distort any of the things or documents that are of great importance for establishing the circumstances STV criminal offense, etc.). An investigator or a prosecutor shall not be entitled to initiate the application of a preventive measure without the existence of the grounds provided for by this code.

For a reason, the CPC of Ukraine puts the validity of suspicion in first place among the grounds for applying measures, because…

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