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THE LETTER OF THE SUPREME SPECIALIZED COURT OF UKRAINE ON CONSIDERATION OF CIVIL AND CRIMINAL CASES

of April 4, 2013 No. 511-550/0/4-13

To chairmen of Appeal Courts of areas,

cities of Kiev and Sevastopol,

Appeal Court of the Autonomous Republic of Crimea

About some questions of procedure for application of measures of presecheniye during pre-judicial investigation and judicial proceedings according to the Criminal Procedure Code of Ukraine

Due to the need of explanation of provisions of the Criminal Procedure Code of Ukraine accepted by the Verkhovna Rada of Ukraine on April 13, 2012 which became effective on November 20, 2012 for the purpose of non-admission unequal and/or misinterpretation of rules of law, in particular in case of application of measures of presecheniye during pre-judicial investigation and judicial proceedings, the trial chamber on criminal cases of the Supreme specialized court of Ukraine on consideration of civil and criminal cases draws the attention of judges of Trial and Appeal Courts to the following.

1. Measures of presecheniye, detentions in criminal proceedings are applied only with the purpose and in the presence of the bases, certain Art. 177 of the Code of Criminal Procedure. The investigative judge, court should consider that the decision on application of one of types of measures of presecheniye which limits the rights and freedoms of the suspect, the person accused shall answer nature of certain public interest (the specific bases determined in the Code of Criminal Procedure and the purpose) that, despite presumption of innocence, prevails over the principle of respect for personal freedom.

Resolving issue of application, prolongation, change or cancellation of measure of restraint by consideration of the corresponding petitions, the investigative judge, court every time shall:

- perform powers on judicial control of observance of the rights, freedoms and interests of persons in criminal proceedings during pre-judicial investigation and legal proceedings, to be effective according to requirements of the penal procedural statute;

- remember that criteria for election of this or that measure of restraint are provided in p.1 Art. 194 of the Code of Criminal Procedure and therefore the investigative judge, court resolves issue of application of measure of restraint if by results of consideration of the petition establishes:

1) availability of reasonable suspicion of making by the suspect, person accused of criminal offense;

2) availability of good causes to consider that there is at least one of the risks provided by Art. 177 of the Code of Criminal Procedure and whom the investigator, the prosecutor specifies;

3) insufficiency of application of softer measures of presecheniye for the prevention of risk or risks specified in the petition;

- check availability of the bases and the purpose of application of measure of restraint in criminal proceedings, to establish justification of such bases considering actual data, the established specific circumstances of criminal proceedings;

- consider that measures of presecheniye in criminal proceedings limit the rights of the personality to freedom and security of person guaranteed Art. 5 of the Convention on human rights protection and fundamental freedoms of 1950 (Convention) and therefore can be applied only in the presence of the legal purpose and the bases determined by the Code of Criminal Procedure taking into account the corresponding practice of the European Court of Human Rights (ECHR);

- consider that detention is exclusive type of measure of restraint and is applied only if the prosecutor will prove that any of softer measures of presecheniye will not be able to prevent the risks specified in Art. 177 of the Code of Criminal Procedure. By consideration of the petition for election or prolongation of application of measure of restraint in the form of continence under guards the possibility of application of other (alternative) measures of presecheniye shall be considered (the legal line item stated in item 80 of the decision of ECHR of February 10, 2011 in the matter of "Harchenko against Ukraine" - 1);

__________

- 1 At stage of consideration of question concerning capture of the applicant into custody arguments for benefit of such decision became gravity of the charges brought to the applicant and risk of its escape. After that prosecutors and courts did not give any bases for prolongation of continence of the applicant under guards, only specified that the measure of restraint was chosen correctly. However according to item 3 of Art. 5 of the Convention on the expiration of certain time only availability of reasonable suspicion stops being the basis for imprisonment, and judicial authorities shall adduce other arguments for prolongation of continence under guards. Besides such bases shall be accurately specified by domestic courts (see case "Eloyev against Ukraine", the item 60). Domestic courts on this case do not give other bases. Besides, national power authorities did not consider the possibility of application of other measures of the presecheniye alternative to continence under guards.

- mean that the measure of restraint only in the form of pledge or continence under guards in cases and according to the procedure, the Code of Criminal Procedure (the p. 7 of Art. 194 of the Code of Criminal Procedure) provided by Chapter 18 can be applied to the suspect accused of crime execution for which primary punishment in the form of penalty over three thousand free minima of the income of citizens is prescribed;

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