PLACE OF RESTRICTIVE MEASURES IN THE CRIMINAL PROCEDURE OF UKRAINE

Abstract

As part of the implementation of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, special measures to counter domestic violence have been introduced into Ukrainian legislation. The Criminal Procedure Code of Ukraine (hereinafter referred to as the CPC of Ukraine) has been supplemented with provisions regarding such measures.The legislator incorporated these measures into the CPC of Ukraine in the form of restrictive measures that may be applied when selecting preventive measures for persons suspected of committing criminal offences related to domestic violence (Part 6 of Article 194 of the CPC of Ukraine).This article focuses on examining the role of restrictive measures in Ukraine’s criminal procedure, a subject of ongoing debate. On one hand, there is a question regarding the necessity of establishing a separate provision on restrictive measures, given that they are essentially equivalent to the procedural obligations provided for in Part 5 of Article 194 of the CPC of Ukraine and are, to a large extent, encompassed by them. At the same time, the legislator has not clarified how courts should proceed when a restrictive measure and an obligation overlap— whether to prioritize the restrictive measure, given the criminal offence involves domestic violence, impose the obligation under Part 5 of Article 194 of the CPC of Ukraine, or utilize both tools simultaneously.On the other hand, some scholars suggest distinguishing restrictive measures, currently part of the preventive measures framework, as an independent security measure with distinct procedures and grounds for application.The study identified grounds for enshrining restrictive measures in the CPC of Ukraine, while also concluding that there are no grounds for applying restrictive measures independently outside the framework of preventive measures. Additionally, it highlights the necessity of establishing the priority of restrictive measures over similar obligations outlined in Part 5 of Article 194 of the CPC of Ukraine in criminal proceedings related to domestic violence.Furthermore, the author concludes that there are valid grounds for removing referral to a program for offenders from the list of restrictive measures, as its inclusion in the CPC of Ukraine does not align with the nature of preventive measures or the principles of criminal proceedings.