Certain problematic issues of choosing a preventive measure in the absence of the accused in the preparatory court hearing

Abstract

This article analyzes the procedure for imposing a preventive measure in the form of imprisonment in the absence of the accused in the preparatory court hearing with a view to identifying the problematic issues arising in the course of its application. The system of measures of restraint in criminal proceedings established in the criminal procedural legislation of Ukraine, which includes the imposition of a measure of restraint in the form of imprisonment in the absence of the accused in the preparatory court hearing, is a legitimate way to restrict the right to liberty and security of person guaranteed by national legislation and international treaties. The current legal regulation prohibits the submission of any documents to the court before the trial, except for the indictment and its annexes, while the prosecutor, in order to satisfy the court's motion for a preventive measure, must prove the existence of reasonable suspicion, risks and the fact of the defendant's departure and/or stay in the temporarily occupied territory of Ukraine, the territory of a state recognized by the Verkhovna Rada of Ukraine as an aggressor state, and/or the defendant's being put on the international wanted list. At the same time, in court proceedings, the court considers the indictment, not the notice of suspicion, and therefore raises the problem of proving the existence of reasonable suspicion. The study of criminal procedural legislation and law enforcement shows that there are problematic issues regarding the selection of a preventive measure in a preparatory court hearing, including 1) inconsistency and contradiction of the current legal provisions on proving the validity of the prosecutor's request for a preventive measure and the prohibition to provide any documents other than the indictment and its annexes in the preliminary hearing; 2) contradiction of one of the grounds for choosing a preventive measure - “reasonableness of suspicion”. The author suggests that, in order to eliminate the above problems, law enforcement should be analyzed on an ongoing basis, with simultaneous continuation of their scientific research, and then, by adopting appropriate amendments, the legal provisions of the CPC of Ukraine should be harmonized with each other.