When Freedom Can Be Restricted Before a Verdict: The Court Explained the Conditions for Applying Detention

Detention is the most severe preventive measure in criminal proceedings and is applied only in exceptional cases. This was explained by the Kherson Court of Appeal.

The purpose of such a preventive measure is not to punish the person before the verdict is made, but to ensure proper procedural behavior of the suspect or accused and to prevent risks provided for in Article 177 of the Criminal Procedure Code of Ukraine.

The criminal procedural law defines that the basis for applying a preventive measure is the presence of reasonable suspicion, as well as risks that may indicate the possibility of hiding from pre-trial investigation or court authorities, destruction or distortion of evidence, illegal influence on victims, witnesses, or other participants in the proceedings, obstruction of criminal proceedings in other ways, or committing a new criminal offense.

According to Article 183 of the Criminal Procedure Code of Ukraine, detention can be applied only when the prosecutor proves that none of the milder preventive measures can prevent the established risks.

When deciding on the application of such a preventive measure, the court must verify key circumstances: the presence of reasonable suspicion, the existence of at least one risk provided by law, and the insufficiency of milder measures to prevent them. If the prosecutor does not prove all these circumstances, the court is obliged to refuse the application of the preventive measure or may choose a milder measure.

Proper motivation of the court decision is of particular importance. Risks cannot be stated formally or stereotypically—they must be supported by specific factual data. The practice of the European Court of Human Rights also holds that detention requires "appropriate" and "sufficient" grounds, and courts must consider the possibility of applying alternative preventive measures.

During martial law, the issue of detention often arises in proceedings concerning crimes against the foundations of national security, war crimes, and other serious offenses. At the same time, even in such categories of cases, the court must assess individual circumstances: the person's behavior, social ties, health status, presence of a permanent residence, risk of hiding, possibility of influencing witnesses, or obstructing proceedings.

The specifics of applying detention in proceedings regarding criminal offenses against the foundations of Ukraine's national security are determined by the increased public danger of such acts and their focus against the sovereignty, territorial integrity, defense capability, and security of the state. In such cases, courts particularly carefully assess the risks of the person hiding from justice, possible connections with representatives of the aggressor state, presence in temporarily occupied territory, possibility of influencing witnesses, or continuing illegal activities. At the same time, even in this category of criminal proceedings, detention should not be applied formally: the court must verify the presence of reasonable suspicion, specific risks, and the impossibility of preventing them by applying a milder preventive measure.

Thus, detention cannot be an automatic consequence of notification of suspicion or the severity of the accusation. It is an exceptional preventive measure, the application of which requires proper evidentiary justification, individual assessment of the circumstances of the case, and maintaining a balance between the interests of justice and the human right to freedom.

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