Is the fact of detention of the suspect a proof in the criminal process?

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Is the fact of detention of the suspect a proof in the criminal process?

Journal Title: Правова позиція - Year 2018, Vol 1, Issue

Abstract

This article covers the real purpose of detention of a person suspected of committing a crime. Among the transformations that the domestic legal doctrine on the path to European integration has undergone in recent years, along with others, the criminal procedure institute “detained a person suspected of committing a crime” has undergone the most significant changes. Namely, by providing the suspect’s detention of the “temporary preventive measure” (Part 2 of Article 176 of the CPC of Ukraine), which consists in short-term (not exceeding 72 hours) imprisonment of a suspect by placing him in a temporary detention isolator, the Ukrainian legislator actually distorted this institute. As a result, in practice, the legislator’s requirement to interpret "detention" as a temporary precautionary measure has led to the fact that such an important procedural document, such as the protocol of detention of a suspect, from the protocol of investigative action (intended to fix the course, contents and results of detention) turned into a documentary basis for placement of the suspect detained in the Insolator. This is a vivid example of the inappropriate criminal-procedural rule-making. In our view, criminal prosecution of a person suspected of committing an offense (as well as the wanted defendant or convicted person who escaped from detention) should not be considered as an isolated preventive measure (such as “house arrest” or “detention”), But as a complex of organizational and tactical actions to capture, disarm and deliver this person to the competent authority, accompanied by the fixation of the fact, circumstances and results of detention by video recording and their final legal registration I am in the relevant protocol. Therefore, detention has important probative value in the criminal process and should be used solely for the purpose of ensuring criminal proceedings, establishing and proving the guilt of a person suspected of committing an offense. At the same time, the probative value of the detention protocol lies in the fact that in the process of catching a suspect established (detected, stated), and in the detention protocol adequately reflect the circumstances and facts relevant to the criminal proceedings. Since detention has different degrees of social danger, this measure of state coercion is used both in criminal (Article 38 of the Criminal Code) and in the criminal procedure (Articles 207–208 of the CPC) and in the administrative legislation of Ukraine (Article 259–261 Code of Ukraine on Administrative Offenses). In all cases, the analysis of the actions that constitute the detention of an offender suggests that practically his procedure is divided into at least two or three independent stages: the direct (physical) detention of a person suspected of committing a crime, its delivery to the body of pre-trial investigation and judicial process (drawing up a record) of the suspect’s detention.

Authors and Affiliations

Є. І. Макаренко

Keywords

EP ID EP600662
DOI -
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