FEATURES OF THE USE OF BAIL AS A PRECAUTIONARY MEASURE OF CRIMINAL PROCEEDINGS IN A STATE OF WAR, STATE OF EMERGENCY

Abstract

The article examines the peculiarities of the use of bail as a precautionary measure of criminal proceedings in a state of war, state of emergency. Bail as a precautionary measure in criminal proceedings is to limit the rights of the suspect, accused, namely his property, and is also a measure to encourage proper conduct in criminal proceedings. The peculiarities of this precautionary measure include: the basis for the use of bail is the presence of reasonable suspicion of committing a criminal offense, as well as the risks that give sufficient grounds to the investigating judge, court to believe that the suspect, accused, convict may perform actions under Part 1 of Art. 177 of the CPC of Ukraine; may be made by the suspect, accused, or other natural or legal person (mortgagor); applies regardless of the severity of the criminal offense, but Article 299 of the CPC of Ukraine excludes the possibility of its application to criminal offenses; can be used as an alternative to detention; the amount of bail is determined by the investigating judge, the court, taking into account the circumstances of the criminal offense, property and marital status of the suspect, accused, other information about his identity and risks; subject of the pledge – depositing funds in the currency of Ukraine to a special account determined in accordance with the procedure established by the Cabinet of Ministers of Ukraine. The article also shows that the use of bail as a precautionary measure of criminal proceedings in martial law, state of emergency or in the area of anti-terrorist operation or measures to ensure national security and defense, repel and deter armed aggression of the Russian Federation and/ or other states against Ukraine is characterized a number of special features. In particular, the pledge can be changed to a personal obligation, the pledge funds are transferred to the needs for the purposes of Ukraine’s defense. The article proposes a number of amendments to the legislation to improve the procedure for applying bail in martial law, state of emergency or in the area of anti-terrorist operation or measures to ensure national security and defense, repel and deter armed aggression of the Russian Federation and/or other states against Ukraine. In particular, it is proposed that in case of filing a petition to replace the pledge with a personal commitment with further transfer of funds for the needs of Ukraine’s defense to provide in Part 5 of Article 616 of the CPC of Ukraine also the right of defense counsel considers immediately, and the participation of the suspect, accused and the person of the mortgagor must be determined.