Basysta I. Is it possible according to part 6 of article 193 CPC of Ukraine to appeal against the decision of the investigating judge on the choice of preventive measure in the form of detention during the pre-trial investigation?

DOI: 10.33098/2078-6670.2022.13.25.189-196

Purpose. The publication is an attempt of the author (based on a systematic analysis of the provisions of paragraph 8 of part 2 of Article 129 of the Constitution of Ukraine, Articles 177, 178, 193, 194, 196, 309, 310, 392 of the CPC of Ukraine) to present the existing approaches and objective problems regarding the possibility (impossibility) of appealing the decision of the investigating judge to choose the preventive measure in a form of detension, which is determined by part 6 of Article 193 of the CPC of Ukraine.

Methodology. The author analyzes and synthesizes the scientific achievements of a number of researchers, and existing case law, and investigates the state of regulatory and legal support, to form own conclusions. In conducting this research, we use such methods as system-structural, analysis and synthesis, functional, and others.

Results. In the process of writing this article, arguments are presented that give grounds for formulating the following conclusions: the norms of the CPC of Ukraine do not provide for the possibility in the pre-trial investigation of appealing the decision of the investigating judge to choose a measure of restraint in custody (Article 193 Part 6 CPC of Ukraine).During the pre-trial investigation, on the basis of paragraph 2 of part 1 of Article 309 of the CPC of Ukraine, only the decision of the investigating judge on the application of the chosen measure of restraint in the form of detention may be appealed (after the detention of a person and not later than forty-eight hours from the time of his delivery to the place of criminal proceedings in accordance with Part 6 of Article 193 of the CPC of Ukraine). Scientific novelty. The Supreme Court has already issued an opinion on the application of the rule of law in such legal relations, which is stated in the decision of the panel of judges of the Second Judicial Chamber of the Supreme Court of Cassation on 13 December 2018 (case 3483/1186/16-k), and the panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation of the Supreme Court considered it necessary to depart from this conclusion. The Joint Chamber of the Criminal Court of Cassation of the Supreme Court should have resolved this issue, and the members of the Scientific Advisory Board at the Supreme Court were sent a request dated 10.01.2022 in case №991 / 3440/20, which was received by the author as well and a scientific conclusion was prepared. So I will try to share my thoughts on this issue with colleagues and hope for an objective solution. Practical significance. The results of the study can be used in law enforcement activities in the investigation of criminal offenses.

Key words: pre-trial investigation, appellate appeal, the decision of the investigating judge on choosing a measure of restraint in the form of detention, decision of the investigating judge on applying the measure of restraint chosen in accordance with part 6 of Article 193 of the CPC of Ukraine.

References

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