When is detention illegal?

Illegal detentions are a fairly common law enforcement practice. As a rule, the illegality of detention is a consequence of non-compliance with the procedure of carrying out such that, despite the temporary nature of such a measure, it entails a violation of fundamental human rights – the right to liberty and security of person. What exactly are the requirements of the CCP that the investigation does not comply with?

Detention of a person should be carried out, as a rule, by a court decision. No prosecutor’s order or investigator’s order is a ground for detaining a person. The CPC provides an exclusive list of cases where a person may be detained without the decision of the investigating judge, and it is this list of grounds that investigators often try to justify the detention of a person, due to the fact that applying to the court to detain a person. involved in the commission of a crime and that there is a need to deprive her of her liberty.

Thus, anyone can detain a criminal without a court order, when such detention is carried out when committing or attempting to commit a criminal offense, as well as immediately after the crime or during the continuous prosecution of a person suspected of committing the crime. In other words, we are talking about those cases when visual control is maintained over the fact that a particular person has committed a crime. However, detention by law enforcement officials in these cases can be carried out only if the crime in which the person is suspected is punishable by imprisonment.

In addition, if the detention is carried out by law enforcement officials, in addition to a report (rather than a report, which is often made in practice by patrol police officers) indicating all the information required by the CCP (time and place of actual detention, grounds and etc.), the person must also be informed about the grounds for detention, about the crime in which the person is suspected. It is mandatory to explain to a person his right to have a lawyer, to receive medical care, to give explanations, testimony or, conversely, to refuse to speak about suspicion.

If a person has been detained without the decision of the investigating judge, the term of detention of such person may not exceed 72 hours. In this case, the period of detention is in no case calculated from the moment of drawing up the report or delivering the person to law enforcement agencies. The moment of detention begins to be calculated from the time when the person was stopped by law enforcement officers and therefore did not have the opportunity to move freely at will in the direction necessary for him. However, law enforcement officers do not take this into account, which usually results in the detention of a person beyond the time allowed by law – the time gap can be too large.

At the same time, it should be borne in mind that a detainee must be served with a suspect within 24 hours of detention (but not later). Otherwise, such a person is subject to immediate release.

In addition, there is a category of persons in respect of whom, by virtue of their special legal status and the guarantees provided by them, detention is carried out in a special manner. For example, a judge may be detained only with the consent of the High Council of Justice. Exceptions are cases when a judge is detained during or after the commission of a serious or particularly serious crime. Detention of a People’s Deputy may be carried out with the prior consent of the Prosecutor General; exception – detention after the commission of a serious or especially serious crime related to the use of violence or one that resulted in the death of a person.

There are repeated cases when the detention is carried out by operatives, but this is not within the competence of the latter. According to Art. 40 of the CPC, the investigator has the right to instruct the relevant operational units to conduct only investigative (investigative) and covert (investigative) investigative actions, to which detention does not apply.

If you have any questions or need advice, the team of Neofelis Love Group JSC is happy to help.

📞 +38 (050) 471-77-71

📬 neofelislg@gmail.com