"Is the Use of Pretrial Detention as a Precautionary Measure a Necessity or a Lever of Influence?" — Oleksandr Shcherbina, Attorney at BARRISTERS Law Firm

Is the Use of Pretrial Detention as a Precautionary Measure a Necessity or a Tool for Exerting Influence?

Why do pretrial investigation authorities in cases involving serious and particularly serious crimes request that pretrial detention—an exceptional pretrial measure—be applied to suspects? What is the purpose of such a measure? Could it be due to post-Soviet statistical requirements or a means of exerting pressure on suspects? I invite you to explore these questions.

After an arrest and the service of a notice of suspicion, a rather interesting process begins: the interrogation of the individual as a suspect. This procedural action is often accompanied by certain threats from the investigator. In 90% of cases, investigators urge the suspect to make incriminating statements against themselves and/or others, promising that they will be allowed to go home rather than be sent to a temporary detention facility. Undoubtedly, a detained person is under stress, and it is not that difficult to pressure them, but that is not the problem at all; after providing the testimony the investigator needs, the person is sent to “jail,” while the investigator and the prosecutor celebrate their first victory. They have achieved their goal, and tomorrow, this interrogation transcript will form the basis of a motion to impose a preventive measure in the form of pretrial detention and will be presented to the investigating judge as evidence of the suspect’s guilt. This raises the rhetorical question: why do the “reformed personnel” of the National Police, the newly—or rather, old-style—National Anti-Corruption Bureau (NABU), and their procedural supervisors from the prosecutor’s office resort to such approaches? This is just one example from practice; of course, in this category of cases, a defense attorney must be present during such a procedural action and is obligated to prevent such a possible turn of events.

So why does the prosecution file a motion with the court requesting the application of an exceptional preventive measure in the form of pretrial detention, since the suspect’s guilt has not been proven—and the burden of proof, given the presumption of innocence, rests with the prosecution—the mere existence of reasonable suspicion, without any demonstrated risks, cannot serve as grounds for applying a preventive measure, and, moreover, is it necessary to convince the court that an alternative type of preventive measure cannot be applied?

The prosecutor’s reference to the seriousness of the alleged crime, without specifying other circumstances—and given the defense’s correct position—is generally disregarded by the court.

So what is the point of such efforts, since, as a rule, during the hearing on a motion to impose pretrial detention, merely lists the risks without in any way substantiating them with the evidence attached to the motion. The answer is obvious: a person subject to such an exceptional preventive measure is very easy to manipulate, as their right to communicate with loved ones and to move about freely is restricted, and they are constantly in a state of depression.

Practicing attorneys constantly face challenges in appealing such decisions by the court of first instance, because after an appeal is filed, the representative of the prosecution ceases to work on the criminal case for a time, they deliberately fail to appear before the appellate court, and due to the heavy caseload of district courts, decisions are delayed for weeks and case materials are not forwarded to the appellate court. All this time, a person who is not even a defendant remains behind bars, where a glimmer of hope appears: a prosecutor or investigator brings him an interrogation transcript and says, “Sign this, and you’ll be released!”