Implementation of the normative content of the principle of ensuring the right to liberty and security of person in the course of criminal procedural evidence

Abstract

Consolidation at the level of the Constitution of Ukraine of the principle of ensuring the right to liberty and security of person necessitated the study of its essence and normative content in order to assess the correctness of the legislative approach to formulating the principle at the level of sectoral regulations. The normative content of the principle is enshrined in Art. 12 of the CCP. Analysis of the wording of this article allows us to identify three components of the principle, which reflect its requirements: prohibition, protection, security. The first element of the principle is the provisions of Part 1 of Art. 12 of the CCP. The key concepts that substantively fill this element are the following: restriction of freedom in criminal proceedings is possible only by a reasoned court decision; the reason for such a restriction is the suspicion of committing a criminal offense; restriction of liberty occurs in the manner prescribed by the Criminal Procedure Code. Procedures for restricting the right to liberty are corrected due to the importance of the restricted right. Judicial review proceedings on the prosecution's request to choose precautionary measures restricting liberty are characterized by its active position in proving the circumstances, which is the basis for restricting a person's liberty. The investigating judge, in the presence of a duly motivated and substantiated request, takes an active position solely to verify the information that is the basis of the request. The content of the element of protection consists of the provisions of the law on: the need to bring the detainee to the investigating judge as soon as possible and to check the legality and validity of the restriction of liberty; notification of the detention of the person of her relatives. The third element of the normative content of the principle is formulated in Part 5 of Art. 12 of the CCP. The law provides for criminal liability for knowingly illegal detention, pretext, house arrest or detention (Article 371 of the CPC), as well as the possibility of compensation for damage caused by illegal decisions, actions or omissions of the body carrying out investigative activities, pre-trial investigation, prosecution or court (Article 130 of the CPC).