PLEDGE AS A PRECAUTIONARY MEASURE IN CRIMINAL PROCEEDINGS: SOME PROBLEMATIC ASPECTS

Abstract

The article analyzed court statistics on the consideration of requests for the application of precautionary measures by the courts of first instance and it is established that detention remains one of the most common. Was emphasized that the rulings of the European Court of Human Rights suggest that detention should be an exceptional precautionary measure. An alternative to it may be a pledge. The characteristics of pledge were described as precautionary measures, which are defined in the relevant provisions of the Criminal Procedure Code of Ukraine. The problematic issue of determining the amount of the pledge is considered. The case law of the European Court of Human Rights is analyzed and the main rules for determining the amount of pledge are highlighted: application of a differentiated approach; justification of the amount of pledge not only during the initial consideration of the request for the application of a measure of restraint, but also during the decision on the need to continue detention; accounting the amount of damages for which this person is accused. It was stated that the norms of the criminal procedure legislation in this part correspond to the practice of the European Court of Human Rights, and the amount of pledge is correlated with such indicators as the circumstances of the criminal offense; property status of the suspect, accused; data on his identity; the presence of risks of concealment, possible influence on the participants in criminal proceedings and various ways of obstructing the pre-trial investigation, referred to in article 177 Criminal Procedure Code of Ukraine. The issues of discussion regarding the maximum size of pledge and it is concluded that in Criminal Procedure Code of Ukraine are expanded list of conditions that the court considers the election of a preventive measure, and therefore the court will be able, within the statutory amount of pledge, to choose the one that can ensure a balance between the private interests of the person (won’t be excessive) and the interests of justice (ensure that suspects and accused perform their duties). It is argued that clarifying the legality of the origin of pledge and expanding the list of objects that can be recognized as pledge in the sense of a precautionary measure can only complicate the procedure for applying pledge.