PECULIARITIES OF PROVING THE GROUNDS FOR APPLYING PREVENTIVE MEASURES DURING THE PRE-TRAIL INVESTIGATION UNDER MARTIAL LAW

Abstract

The article, based on the analysis of the provisions of the concept of admissibility of restrictions on human rights and freedoms, the theory of evidence, the functional purpose of preventive measures in criminal proceedings, their regulatory and legal regulation and the practice of application during pre-trial investigation under martial law, reveals the peculiarities of proving the grounds for applying preventive measures. It is determined that proving the grounds for applying preventive measures during pre-trial investigation under martial law is carried out within the framework of the extraordinary procedure for collecting evidence and its examination by the investigating judge, determined by the regulatory provisions of Article 615 of the Code of Criminal Procedure of Ukraine, provided that it is impossible to carry out such procedural actions in the manner prescribed by Chapter 18 of the Code of Criminal Procedure of Ukraine. The point of view is supported regarding the impossibility of applying the standard of proof “beyond reasonable doubt” when assessing factual data that may serve as grounds for applying preventive measures. Based on the study of the decisions of investigating judges on the selection of preventive measures, it was found that, in comparison with other procedural decisions, two standards of proof are used to determine the grounds for their application: “reasonable suspicion” to establish the presence of factual data that are sufficient to convince an objective and impartial observer that a person could have committed the offense of which he is suspected; “sufficient grounds” to establish the presence of risks that give sufficient grounds for the investigating judge, court to believe that the suspect, accused, convicted person may commit the actions provided for in Part One of Article 177 of the Criminal Procedure Code of Ukraine, as well as other circumstances that influence the selection of the type of preventive measure listed in Article 178 of the Criminal Procedure Code of Ukraine. Typical grounds for applying preventive measures during a pre-trial investigation have been identified in a situation related to the detention of a person on suspicion of committing a criminal offense as a result of urgent investigative (search) and other procedural actions, and in a situation where a person is notified of suspicion as a result of a lengthy process of collecting evidence of his guilt in committing a criminal offense.