Detention as a measure to ensure due legal procedure in criminal proceedings
Authors: Volobuiev A. F. 
Published: February 2025

The problematic issues of the institution of detention from the point of view of ensuring due legal procedure during criminal proceedings are investigated. The aim is to determine the essence of the detention of a person without a decision of the investigating judge (court), as well as the shortcomings of the current criminal procedural legislation regarding the legal regulation of this procedural measure. The starting point for this is the interpretation of the detention of a person as a compulsory procedural measure and the formulation of proposals for improving the legal mechanism for its implementation. For this purpose, two types of detention are analyzed: 1) detention of a suspect, accused on the basis of a decision of the investigating judge, court for the purpose of arraignment (Articles 187-191 of the Criminal Procedure Code of Ukraine); 2) detention of a person without a decision of the investigating judge, court (Articles 207-208 of the Criminal Procedure Code of Ukraine).
It is noted that the detention of a person without a decision of an investigating judge or court is a compulsory procedural action that is carried out before entering information about a criminal offense into the Unified Register of Pre-Trial Investigations and the start of a pre-trial investigation. This detention occurs in connection with the commission of an act provided for by the current legislation on criminal liability, which is a sign of criminal proceedings (clause 10 of article 3 of the Code of Criminal Procedure of Ukraine). The purpose of such detention is to terminate the criminal offense and ensure that the guilty person is brought to criminal liability in compliance with due legal procedure. The detention of a person at the place of commission (attempt) of a criminal offense without a decision of an investigating judge (court) is considered a legal fact that contains the reasons and grounds for the start of a pre-trial investigation.
It is noted that the current criminal procedural legislation on the institution of detention contains a number of contradictions and gaps that make it unbalanced and unable to ensure due (fair) legal procedure. This concerns the legal regulation of the detention of a person without a decision of an investigating judge or court, which contains inaccuracies and contradictions in the formulation of the grounds for the detention of persons who commit crimes and criminal offenses, the terms of detention of suspects, and confusion in the formulation of procedural instructions. To eliminate the shortcomings, it is proposed to introduce a provision in Article 298-2 of the Criminal Procedure Code of Ukraine in the following wording: “A person who has committed a criminal offense may be detained: 1) for no more than three hours from the moment of actual detention for the purpose of drawing up a report; 2) for up to twenty-four hours if the person is in a state of alcoholic, narcotic or other intoxication and may harm himself or others; 3) up to seventy-two hours to establish the identity, conduct a medical examination and clarify other circumstances of the commission of a complex criminal offense.
It is concluded that the elimination of the indicated shortcomings of the current procedural legislation will ensure compliance with the rights of detained persons and create clear and understandable grounds for the implementation of due legal procedure in criminal proceedings.