Correlation of choosing a preventive measure in the form of detention and special pre-trial investigation

Abstract

This article analyzes the regulatory framework, scientific developments and main aspects of law enforcement of the institutes of choosing a preventive measure in the form of detention (choosing a preventive measure), in accordance with Part 6 of Article 193 of the CPC of Ukraine, and special pre-trial investigation (SPI), in accordance with Chapter 241 "Peculiarities of Special Pre-trial Investigation of Criminal Offenses" of the CPC of Ukraine. The author establishes that the CPC of Ukraine simultaneously uses two legal categories of "election" and "application" of a preventive measure which are not synonymous by name. The legislator uses the term "application of a preventive measure" to refer to the preventive measure procedure which takes place in the presence of a suspect, and in the absence of such a suspect - "election of a preventive measure". At the same time, these legal categories are identical in legal regulation. The author examines certain aspects of choosing a preventive measure and the procedure of the in absentia pre-trial detention. The author reveals the functional purpose of choosing a preventive measure and granting permission for the implementation of the SRR by an investigating judge. Using the example of the practice of investigating judges, the author analyzes the application and distinction between the procedure for imposing a preventive measure and conducting a pre-trial investigation with regard to their purpose and purpose. Thus, the purpose of preventive measures is to ensure proper procedural behavior of the suspect, his or her appearance before the prosecution and to prevent evasion of criminal liability. Instead, the purpose of the pre-trial investigation is to allow the investigating judge to authorize the investigator and prosecutor to conduct and complete the pre-trial investigation in the absence of the suspect. Given the analysis of the provisions of the CPC of Ukraine, scientific works and law enforcement by investigating judges, it is proved that the imposition of a preventive measure on a suspect and the investigating judge's permission to conduct a pre-trial investigation have different functional purposes and differ in the purpose of each of the procedural actions, and therefore cannot replace or substitute each other.