Ensuring the participation of persons in criminal proceedings under martial law: applied aspects

Abstract

The article examines legislative norms and court practice on ensuring the participation of persons in criminal proceedings. It is noted that in accordance with the law of Ukraine "On the legal regime of martial law", courts, bodies and institutions of the justice system act exclusively on the basis, within the limits of authority and in the manner determined by the Constitution and laws of Ukraine. The powers of courts, bodies and institutions of the justice system provided for by the Constitution cannot be limited in the conditions of the legal regime of martial law. However, this legislative act does not fully correspond to the realities of today, namely, in the conditions of active hostilities on the territory of Ukraine, the provisions of the law are not effective.

In this regard, the parliament has recently worked out many changes to the legislation aimed at adapting criminal proceedings to the conditions of martial law. Courts worked in conditions of constant legislative changes and without access to the Unified Register of Court Decisions, which made it impossible to study judicial practice and made it difficult to form uniform approaches to the implementation of new legislative norms. That is why the study of the issue of ensuring the participation of persons in criminal proceedings during martial law, the study of law enforcement practice on this issue is an important and relevant issue of modern criminal procedural science.

The analysis of judicial practice made it possible to single out the conditional criteria that judges take into account when deciding on the issue of changing a preventive measure in the form of detention or house arrest to personal commitment. In addition to the general circumstances provided for by the Criminal Procedure Code of Ukraine, it is also 1) staying in the territory where active hostilities are (not being) waged, 2) the presence of a family and the need to be taken to a safe territory, 3) whether the suspect, the accused is conscripted and whether he is subject to mobilization, 4) the person's ability to defend Ukraine in view of the nature of the offense for which he was prosecuted, 5) whether the suspect, the accused received a summons to the Military Commissariat, 6) compliance with the conditions of a preventive measure, etc.