Defender's participation during apprehension on suspicion of committing an official crime
Authors: Kutcher O. 
Published: March 2020

Apprehension of a person on suspicion of committing of an official crime contains a potential threat to the law enforcement bodies of the requirements of Criminal procedural code of Ukraine in order to achieve short-term media effect in the demonstration of "effective struggle" with white-collar Crime. However, there are no procedural errors under the active position of the protection party, as a rule, offset the evidence collected in violation of the current criminal procedure legislation, which results from the adoption by the courts of Ukraine of corrective proceedings.

The purpose of the article is to study procedural issues arising in connection with law enforcement agencies to detain a person suspected of committing a crime.

The defender's participation in the stage of detention is important, because at this stage, a person who is potentially is suspected in the committing of official crime is especially in need of skilled legal assistance. Often, after the actual detention, questioning persons, recognitions, and on the petition of detained investigators are misled by explaining that the legal aid to the defender is granted from the moment of announcement of the detention protocol.

In the context of applicable provisions of art. 208 the Criminal procedural code of Ukraine confirmed the correctness of the opinion on the wrongness of some detentores committed during the last time. In particular, there are numerous cases of detention of heads of central executive authorities (during the session of the Cabinet of Ministers of Ukraine), the deputies (during the session of the Verkhovna Rada of Ukraine or immediately after) for crimes committed by the weeks, Months, years ago.

In practice, the defender does not provide access to a person who was delayed to the "crime scene" or "under the hot" and delivered to the pre-trial investigation agency, which needed immediate legal aid. The solution to this problem is seen in the rapid actions of the defender to provide the widest possible public publicity of the mentioned illegal actions of the pre-trial investigation agency.

Legislative regulation requires the definition of the meaning of "an authorized service person", which has the right to conduct detention without the ruling of an investigative judge or if any. It is argued that such a category of persons should include employees of the national police, security authorities, bodies controlling adherence to tax legislation, detectives unit, internal control unit National Anti-Corruption Bureau of Ukraine, bodies of state Bureau of Investigation, bodies of State Border guard Service of Ukraine etc.

An important aspect of providing legal assistance to a person arrested on suspicion of committing an official crime is the need to find out all the information about the person with the security and the circumstances of the detention: the actual time, place, or other persons who stayed with him or the grounds for detention and procedural rights have been reported, whether the video (photo-) shooting, which was seized during the detention, whether a personal search was held or any documents were selected, whether the explanations were selected or under-protective any investigative actions, etc.

The decision on further procedural behaviour should be taken only after the discussion with the client of the protection position, clarification of procedural rights and art. 63 of the Constitution of Ukraine. In the event that the customer agrees to give evidence, the lawyer clarifies the procedure for questioning the suspect, his rights, to discuss the contents of the testimony, questions to be seen.