PROCEDURAL ORDER OF THE APPLICATION OF DETENTION, EXTENTION OF ITS TERM

Abstract

In court practice of ECHR has repeatedly emphasized that judicial proceedings regarding the detention of a person must be adversarial and always ensure equality of the parties to the process. The use of a judicial procedure that meets the requirements of fairness and is based on the constitutional principles of equality of participants in the trial before the law and the court, adversarial nature of the parties, and the right to defense is a prerequisite for making lawful and justified judicial decisions on restrictions on the right to freedom. The procedure for considering request for the application or extension of the term of detention involves the participation of both parties and the examination of evidence presented by the parties. During the consideration of the request for the application or extension of the term of detention, the investigating judge or court is obliged to verify the evidence provided by the parties and establish: 1) the presence of reasonable suspicion that the suspect or accused has committed a criminal offense; 2) risks of breach of duties by suspects and accused; 3) insufficiency application of milder preventive measures. If all these circumstances are established, the court must grant the request and detain the person for up to 60 days, usually also assigning bail as an alternative preventive measure. If the prosecutor cannot prove at least one of the above circumstances, then detention cannot be ordered. The application of detention and its extension requires the issuance of an appropriate decision regarding each suspect or accused person. Based on the legal positions of the ECHR, inadequate motivation of decisions to apply or extend periods of detention is a systemic problem that leads to a violation of Article 5, paragraph 3, of the ECHR 1950. The obligation to cite specific facts in court decisions that confirm the risks of violation of obligations by suspects and accused persons and to indicate the procedural source of information about them allows for individualization and justification of court decision on detention and its extension.