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Precautionary measures: types and grounds for their application
During criminal proceedings, various types of preventive measures may be applied. Their purpose is to ensure that the suspect/accused fulfils the procedural obligations imposed on them and to prevent attempts to: evade investigation or court; destroy evidence critical to establishing the circumstances of the criminal offence; illegally influence the victim, witness, another suspect, accused, or expert; commit another crime or continue the one in which the person is suspected or accused.
What are preventive measures and the grounds for their application?
Preventive measures are a set of precautionary measures aimed at ensuring the proper conduct of the suspect/accused through certain restrictions on their personal rights.
The grounds for applying a preventive measure are the presence of reasonable suspicion of a person committing a criminal offence and the presence of risks that provide sufficient grounds for the investigating judge/court to believe that the suspect/accused may take actions that obstruct the establishment of the truth in criminal proceedings.
An investigator or prosecutor does not have the right to initiate the application of a preventive measure without the grounds explicitly provided by the Criminal Procedure Code of Ukraine (CPC).
Preventive measures are applied during the pre-trial investigation and before the preparatory court hearing by the investigating judge upon the motion of the investigator, approved by the prosecutor, or upon the motion of the prosecutor, and during court proceedings by the court upon the motion of the prosecutor.
Therefore, only the court may apply any type of preventive measure to a suspect or accused person.
Types of preventive measures
The CPC of Ukraine provides the following types of preventive measures:
- personal commitment
- personal surety
- bail
- house arrest
- detention
A temporary preventive measure is the detention of a person.
Personal commitment
This type of preventive measure is the mildest. Its essence lies in the commitment of the suspect/accused to fulfil the obligations imposed on them by the investigating judge/court, including:
- appearing when summoned by the court or another authority determined by the investigating judge/court or at specified intervals
- not leaving the settlement where they are registered, reside, or stay without permission from the investigator, prosecutor, or court
- informing the investigator, prosecutor, or court of any change in their residence and/or workplace
- refraining from communicating with any person specified by the investigating judge/court, or communicating with them under conditions determined by the investigating judge/court
- not visiting places specified by the investigating judge or court
- surrendering their passport(s) for travel abroad and other documents granting the right to leave Ukraine and enter Ukraine to the appropriate state authorities for safekeeping
- and others
The suspect/accused is notified in writing under signature of the obligations imposed on them by the investigating judge/court and is explained that failure to fulfil these obligations may result in the application of a stricter preventive measure and a fine.
The investigator supervises the execution of the personal commitment, and if the case is in court, the prosecutor supervises it.
Personal surety
Personal surety involves persons whom the investigating judge/court deems trustworthy providing a written commitment that they vouch for the suspect’s/accused’s fulfilment of their obligations and undertake to deliver them to the investigative authority or court upon request.
The number of sureties is determined by the investigating judge/court. One surety may be sufficient only if the person is highly trustworthy.
A surety can refuse the obligations undertaken before circumstances arise that entail their liability. In such a case, they ensure the appearance of the suspect/accused before the investigative authority or court to resolve the issue of replacing the preventive measure with another.
If the surety fails to fulfil their obligations, a fine is imposed on them.
The investigator supervises the execution of the personal surety, and if the case is in court, the prosecutor supervises it.
Bail
This preventive measure involves depositing money into a special account to ensure the suspect/accused fulfils their obligations, under the condition that the deposited money is forfeited to the state if these obligations are not met. The CPC of Ukraine also provides for the possibility of applying bail to a person subjected to detention.
Bail can be posted by the suspect/accused themselves or another individual or legal entity. However, a state or municipal legal entity cannot act as a bail guarantor.
The amount of bail is determined by the investigating judge/court, considering the circumstances of the criminal offence, the suspect’s/accused’s financial and family status, other personal data, and risks. The bail amount must sufficiently guarantee the fulfilment of obligations and cannot be excessively burdensome.
A suspect/accused who is not in custody must deposit the money into the account or ensure it is deposited by the guarantor within five days of the bail’s imposition and provide a document confirming this to the investigator, prosecutor, or court.
If the bail guarantor fails to fulfil their obligations, or if the suspect/accused, having been duly notified, fails to appear when summoned by the investigator, prosecutor, investigating judge, or court without valid reasons or fails to notify them of the reasons for their absence, or violates other obligations imposed when applying the preventive measure, the bail is forfeited to the state and credited to the special fund of the State Budget of Ukraine.
After the bail is forfeited to the state, the investigating judge/court decides on applying a preventive measure to the suspect/accused in the form of a larger bail or another preventive measure, such as detention.
Bail not forfeited to the state is returned to the suspect/accused or the bail guarantor after the preventive measure expires. However, bail may be fully or partially used by the court to cover property damage compensation in the judgement. Bail posted by a guarantor can be used to cover property fines in the judgement only with the guarantor’s consent.
House arrest
House arrest involves prohibiting the suspect/accused from leaving their residence either 24/7 or during specified hours (e.g., from 10:00 p.m. to 8:00 a.m.).
This preventive measure may be applied to a person suspected or accused of a crime for which the law prescribes imprisonment.
Police officers may visit the residence of a person under house arrest to monitor their behaviour, require oral or written explanations on matters related to fulfilling their obligations, and use electronic monitoring devices such as a bracelet.
The duration of the investigating judge’s ruling on house arrest cannot exceed two months but can be extended upon the prosecutor’s motion within the pre-trial investigation period. The total duration of house arrest during the pre-trial investigation cannot exceed six months.
Detention
Detention is an exceptional and the strictest preventive measure, applied only if the prosecutor proves that no milder preventive measure can mitigate the risks that need to be addressed.
The investigating judge/court, when issuing a ruling on applying detention, must determine the amount of bail sufficient to ensure the suspect/accused fulfils their obligations. However, there is a list of criminal proceedings where the investigating judge/court may not determine the amount of bail, such as:
- a crime committed with violence or the threat of violence
- a crime resulting in death
- a person who has previously been subjected to bail in this proceeding but violated it
- certain crimes against public safety
- particularly serious crimes involving narcotics, psychotropic substances, their analogues, or precursors
- a suspect/accused declared internationally wanted and/or who has left and/or is located in the temporarily occupied territory of Ukraine or a state recognised by the Verkhovna Rada of Ukraine as an aggressor state
The duration of the investigating judge’s/court’s ruling on detention cannot exceed 60 days but can be extended by the investigating judge within the pre-trial investigation period.
The total duration of detention should not exceed:
- Six months for a minor crime;
- Twelve months for serious or particularly serious crimes.
Conclusions
Preventive measures are a set of precautionary measures aimed at ensuring the proper conduct of the suspect/accused through certain restrictions on their personal rights.