Substantiating the legality of human rights restrictions in Ukraine in pre-trial investigation

Abstract

The relevance of the subject lies in the formation of a scientifically based concept of proving the legality of restrictions on rights and freedoms during pre-trial investigation, which is based on a three-stage test of the justification of interference formulated in the jurisprudence of the European Court of Human Rights. The purpose of the study was to establish general criteria for the legality of restriction of rights and freedoms during pre-trial investigation with their explication of specific procedural actions and decisions characterised by a high degree of intrusiveness. The main research methods were anthropological, axiological, dialectical, systemic, formal, legal, and the method of expert assessments. Was is proved that algorithmisation of the decision on the restriction of human rights in a pre-trial investigation should be conducted according to the methodology of a three-part test: foresight in the law; the purpose of interference, which should be legitimate; whether such interference was required in a democratic society. This test is applicable to all intrusive measures in criminal proceedings but has its own characteristics depending on the measure and the nature of the intensity of restriction of rights. It is argued that the elements of the three-part test when applying measures to ensure criminal proceedings are objectified in the local subject of proof, which has three levels: 1) General (Article 132 of the Criminal Procedure Code of Ukraine); 2) Group, for preventive measures; 3) Special, for certain measures to ensure criminal proceedings, including preventive measures. On the example of regulatory regulation of individual investigative (search) actions, it is established that ensuring the proportionality of their application is conducted by determining by the investigating judge the limits of restriction of rights and freedoms during such a procedural action and preventing arbitrariness to a person. The most detailed proof of the legality of restricting rights in measures to ensure criminal proceedings has specifics depending on the measure and the person to whom it is applied. The practical importance of the work lies in the possibility of using the algorithms given in it when establishing elements of the local subject of proof by investigating judges