LEGISLATIVE DEFECTS ON THE DETENTION IN UKRAINE DETECTED BY THE EUROPEAN COURT OF HUMAN RIGHTS, AND THE STATE OF THEIR ELIMINATION
Journal Title: Юридичний науковий електронний журнал - Year 2017, Vol 4, Issue
Abstract
In this article the author analyzes some legislative defects in the field of criminal justice, identified in the judgments of the European Court of Human Rights in cases versus Ukraine, in particular regarding the procedure for the selection and extension of a preventive measure in the form of detention and the state of their elimination by the domestic legislator in the current Criminal Procedural Code of Ukraine. Detention definitely can be regarded to as the most rigorous precautionary measure, since by using it, the state deprives a person of freedom. That is why the observance of human rights and freedoms during the application of this precautionary measure is extremely important. There is no doubt that the choice of any precautionary measure shall be duly substantiated, however, it is precisely with respect to the detention that the prosecution party has to prove unequivocally that the application to any person of any other preventive measure would be ineffective. The proposed article deals with the non-compliance with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms of the procedure for extending the terms of detention as a precautionary measure in the pre-trial investigation and prosecution in criminal proceedings provided for in Ukrainian legislation. In particular, the following legal defects, identified by the European Court of Human Rights in its judgments in cases against Ukraine, are analyzed: 1) the existence in the domestic legislation of the provisions, according to which the term of detention during the pre-trial investigation was prolonged by the prosecutor; 2) the absence in criminal procedural legislation of Ukraine of provision, requiring appropriate decision on detention after the end of the pre-trial investigation and before the trial prolongation, and 3) the absence of judges’ obligation to give any reasons in the judgment that extends the period of the preventive measure for the trial period. Consequently, the application to a person of such a preventive measure as detention shall necessarily be justified. All the prosecutor’s arguments shall be duly verified by the court in order to avoid any abuse of human rights and freedoms. All in all, it should be noted that two of the three detected by the European Court of Human Rights legislative defects concerning detention, were eliminated by a domestic legislator in the current Criminal Procedural Code of Ukraine.
Authors and Affiliations
О. Ю. , Гарасимів
Keywords
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