Особливості затримання уповноваженою службовою особою в контексті Європейських стандартів / Peculiarities of Arrest by an Authorized Official within the European Standards
Journal Title: Журнал східноєвропейського права - Year 2018, Vol 53, Issue
Abstract
The article deals with the provisions of criminal procedure legislation on the peculiarities of arrest an authorized official within the European standards. The main international documents which regulate the person’s right to freedom and personal inviolability such as Universal Declaration of Human Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms, International Covenant on Civil and Political Rights, Resolution of the UN General Assembly “Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment” and Recommendation R (80) 11 of the Committee of Ministers to Member States Concerning Custody Pending Trial. It has been stressed that when the legislator developed provisions of the Criminal Procedure Code of Ukraine in 2012 it tried to implement as many guarantees mentioned in the Convention and decisions of the European Court of Human Rights as possible. Issues regarding identification of authorized officials have been addressed. Attention has been focused that the absence of the list of authorized officials in the Criminal Procedure Code of Ukraine contributes to the wrong understanding of these officials. As a result, patrol police officers arrest the person not like authorized officials but in compliance with general grounds provided for every citizen according to Art. 207 of the Criminal Procedure Code of Ukraine Following systematic analysis of Ukrainian legislation laws which authorize relevant bodies and their officials to arrest have been identified. It has been concluded that identification of the list of bodies and units which are authorized to arrest cannot allow to understand which authorized officials of these bodies or units have the right to arrest in accordance with Art. 208 of the Criminal Procedure Code of Ukraine. Such a chaotic nature in identification of the list of authorized officials contradicts the principle of legal certainty. Since 6 years when Articles 207 and 208 have been existing the legislator has done nothing to unify and identify the clear and exhaustive list of not the bodies or units but authorized officials who have the right to arrest. Requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms, the Constitution of Ukraine and the Criminal Procedure Code of Ukraine related to ensuring the guarantees during arrest by the authorized official have been analyzed. It has been stressed that the problems of implementation are resulted not only by the lack of proper legal regulation but by (intentional or reckless) disregard of the provisions of the Criminal Procedure Code of Ukraine. At the same time, this situation cannot be changed by amendments to the effective legislation. Investigators and prosecutors should be educated and trained.
Authors and Affiliations
Andrii Orlean
Keywords
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