The Grounds for Detention of a Person on Suspect of a Criminal Offense

Abstract

The article is devoted to the study of a number of controversial issues in the science of criminal procedure and the practice of pre-trial investigation, prosecution and court to understand the grounds for criminal detention on suspicion of committing a criminal offense and a number of related concepts. Emphasis is placed on a certain inconsistency of the legislator when detailing in the criminal procedural legislation the provisions of Art. 29 of the Constitution of Ukraine, in particular in terms of determining the grounds for detention of a person without a prior court decision (decision of the investigating judge) in Art. 208 of the Criminal Procedure Code of Ukraine (CPC of Ukraine). It is proved that the provisions of Part 3 of Art. 29 of the Constitution of Ukraine, namely the wording «in case of urgent need to prevent a crime or stop it» as a ground for detention of a person without a prior court decision cannot be supplemented or expanded. Instead, in Part 1 of Art. 208 of the CPC of Ukraine defines the list of cases of detention of a person without a court decision, in connection with which there are good reasons to doubt their compliance with the above constitutional norm. Therefore, the topical issue is the development of scientific and theoretical foundations for further improvement of the provisions of Part 1 of Art. 208 of the Criminal Procedure Code of Ukraine. It is argued that the legislator’s use of the term «immediately after the crime» in the above article causes at least a number of inconsistencies and misunderstandings, and in some situations may lead to violations of a person’s right to liberty and personal integrity due to too loose understanding of law enforcement timeframes and facts, which occurred after the commission of a criminal offense. The article argues that the gravity and public danger of a crime committed cannot in itself serve as a sufficient reason for introducing exceptions to the general rules of detention of a person suspected of committing such a crime. The author concluded that it is necessary to obtain prior court permission to detain a person suspected of committing a serious or especially serious corruption crime, referred by law to the NABU, if there are no grounds for detention, defined in Part 3 of Art. 29 of the Constitution of Ukraine.