Features of Ensuring the Right to Liberty and Personal Integrity In Criminal Proceedings Under the Conditions of Martial Law: Precedent Practice of the European Court of Human Rights and Ukrainian Realities

Abstract

This article is devoted to the study of problems related to the peculiarities of ensuring the right to freedom and personal integrity in criminal proceedings under martial law. It is noted that one of the principles of the state policy of Ukraine in the spheres of national security and defence is the protection of people and citizens, their life and dignity, and their constitutional rights and freedoms. The article analyses the conditions of admissibility of derogation, i.e., Ukraine’s right to derogate from the observance of individual rights, guaranteed, first of all, by Art. 5 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR). The authors determine the constitutionality of legislative innovations caused by unprovoked Russian aggression and, as a result, the introduction of martial law in our country. The position is argued that the limitation of the right to freedom and personal integrity provided for by the Criminal Procedure Code of Ukraine (Parts 6-7 of Art. 176) only by the use of detention pursues a legitimate goal, which is to prevent persons who are reasonably suspected of committing a number of crimes from hiding from the investigation and the court, as well as perform any actions provided for in Part 1 of Art. 177 of the CPC of Ukraine, which, taking into account the difficult situation in the country associated with military aggression, can be considered fully justified. At the same time, in the future, at the stage of extending the term of detention, the suspect or the accused is actually deprived of the right to request his release from custody and the application of an alternative preventive measure to him, which does not correlate with international standards of limiting the right to freedom and personal integrity and does not comply with the legal positions of the European Court of Human Rights. The authors emphasise that the quasi-automatic extension of the term of detention of a person in custody without appropriate requests from the prosecution, without checking the presence of new or previous risks and assessing the expediency of further deprivation of liberty, introduced into the national legislation, should be considered as a violation of the conventional norms-guarantees established by § 3 Art. 5 of the ECHR.