Право і безпека (Dec 2023)
Detention of a person under suspicion of committing a criminal offence and the possibility to appeal in criminal proceedings
Abstract
The article analyzes the provisions of the current criminal procedural legislation of Ukraine and separate scientific works in the field of criminal procedure regarding the detention of a person under suspicion of committing a criminal offense without a decision of the investigating judge or a court, especially when the detention of a person under suspicion is carried out by an authorized official at the scene of the crime or immediately after its commission. It is emphasized that in addition to the inquirer, investigator, prosecutor, bodies authorized to carry out a pre-trial investigation, subjects who also have the right to detain a person under suspicion of having committed a criminal offense include all policemen, all military personnel serving in the National Guard of Ukraine, all employees of the special law enforcement military formation of the law enforcement service, employees of the State Security Department, military personnel performing duties for the protection of the state border, employees of the special law enforcement body of the Security Service of Ukraine, employees of the state law enforcement agency (NABU), employees of the customs service, officials involved in the anti-terrorist operation, officials and officials of enforcement agencies prisons and detention centers, captains of sea or river vessels of Ukraine located outside its borders, employees of the Department of Economic Security. The question of the presence of legal aspects of the justification of detention, especially when such detention is carried out by an authorized official, is considered. It is proposed to provide in Art. 3 of the Criminal Procedure Code of Ukraine, a provision that would explain the requirements regarding the validity of decisions, and especially when a person is detained, which is carried out within the framework of the provisions of Art. 208 of the CPC of Ukraine. The provisions of the criminal procedural legislation regarding the possibility of a person detained on suspicion, who already has the procedural status of a suspect, to appeal, in accordance with Clause 6, Part 1, Art. 42 of the Criminal Procedure Code of Ukraine the validity of his/her detention. Attention is also paid to the problematic legal aspects that do not allow a person detained (without a ruling of an investigating judge) on suspicion of committing a criminal offence during a pre-trial investigation, when such detention was carried out at the scene of the crime or immediately after its commission, to exercise his or her right to challenge the validity of the detention and file a relevant complaint with the prosecutor or investigating judge. For this purpose, it is proposed to provide for a provision in the Criminal Procedure Code of Ukraine, according to which, when detaining a person within the framework of Articles 207, 208 of the CPC of Ukraine and drawing up a detention report, the authorised official who drew up the said report is obliged to draw up a resolution on the justification of detention and hand over copies to the detainee immediately upon placing the detainee in a temporary detention facility. In order to ensure the exercise of the right of a suspect (detainee) to demand verification of the validity of detention, a possible procedure for appealing to the prosecutor, investigating judge against such detention during the pre-trial investigation is proposed.
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