One of the elements safeguarding human rights during the pretrial investigation stage is the exercise of effective judicial oversight, which aims to ensure an effective balance between the protection of an individual’s rights and the interests of justice.

Under the Code of Criminal Procedure of Ukraine, the investigating judge is positioned as an independent procedural figure entrusted with the duty to verify the legality and validity of the actions, decisions, or inaction of the parties to criminal proceedings.

However, in practice, there is a tendency for investigating judges to take a formalistic approach to fulfilling the functions and tasks set forth in the CPC of Ukraine, particularly when considering motions regarding preventive measures.

Pursuant to Part 2 of Article 177 of the CPC of Ukraine, the grounds for applying a preventive measure are the existence of reasonable suspicion that a person has committed a criminal offense, as well as the existence of risks that provide sufficient grounds for the investigating judge the court to believe that the suspect, defendant, or convicted person may commit the acts specified in Part 1 of this article. An investigator or prosecutor does not have the right to initiate the application of a preventive measure without the grounds provided for in this Code.

However, in practice, pretrial investigation authorities do not make sufficient efforts and, in fact, fail to establish a logical connection between the person’s actions and the alleged offense.

It is also worth noting that the risks are formulated in a declarative manner, without being supported by adequate evidence and without any documented facts that could indicate the existence of the risks specified in Article 177 of the Code of Criminal Procedure of Ukraine.

The court, in turn, points out that it is not authorized to evaluate the evidence at this stage, which, in essence, reduces judicial review to a purely formal procedure.

Mechanically copying the facts from the notice of suspicion cannot be considered adequate justification.

Court rulings that lack an analysis of specific facts and reasoning are a manifestation of dangerously formalistic justice.

This approach is flawed because it undermines the institution of judicial review; the mere formal existence of suspicion without an analytical assessment in accordance with Article 5 of the ECHR constitutes a gross violation of the right to liberty and security of person.

There are frequent cases where, in practice, investigating judges grant motions to impose a preventive measure, citing the phrase: “the suspicion is well-founded, since notice of it has been served”—which is also impermissible and contradicts national legislation and the practice of the European Court of Human Rights.

The European Court of Human Rights, in paragraph 175 of its judgment in the case of “Nechiporuk and Yonkalo v. Ukraine” The term “reasonable suspicion” means that there are facts or information that could convince an objective observer that the person in question may have committed an offense.

Furthermore, in accordance with the established case law of the ECHR, including that set forth in the “Klishin v. Ukraine” judgment, the existence of any risk must be concrete rather than abstract and must be substantiated by specific evidence.

This practice of the national court has a number of negative consequences:

First, a violation of the principle of the rule of law—where an individual’s right to a fair trial is undermined for the sake of procedural convenience.

Second, a violation of the individual’s right to an effective remedy, guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Third, a loss of the court’s procedural independence—the judge, instead of acting as a guarantor of rights, becomes part of the prosecution mechanism.

Fourth, the discrediting of judicial review as an institution in the eyes of the public and the legal community.

An investigating judge should not be a mere rubber stamp for the pretrial investigation authority, but rather a procedural guarantor of comprehensiveness, impartiality, and fairness, ensuring compliance with procedural safeguards.

Furthermore, the court must verify the validity of the suspicion based on the evidence provided and the requirements of the Criminal Procedure Code of Ukraine.

It is worth noting that such an assessment does not imply a premature finding of guilt or involvement on the part of the individual, but rather constitutes a minimum standard of procedural fairness.

Practice shows that the validity of the suspicion is systematically overlooked by the court solely because of a desire not to “overstep the bounds” of evidence evaluation, out of concern for unduly interfering with the functions of the prosecution.

Ensuring genuine, rather than merely declarative, judicial oversight during the pretrial investigation stage is not only a legal requirement but also the foundation of trust in the justice system.

Only an active stance by the investigating judge, focused on protecting human rights, can counter formalism and strengthen the principle of the rule of law.

Judicial oversight in criminal proceedings is a fundamental guarantee of justice.