Having the task of fulfilling his/her duty in criminal proceedings, which is mostly to protect the rights and legitimate interests and to improve the client’s situation, an attorney-at-law should go beyond the exercise of available rights, he/she should look for and use the chance to implement such rights and to identify the situation in which they are best used. The efficiency of defense counsel’s efforts depends directly on the procedural opportunities as a set of the rights and conditions (situation) for exercising them.

For an attorney, the most important aspect is not the very fact of being aware of the procedural form of interim measures and the suspect’s rights when the former are imposed, but how and when these rights can be used to ensure efficient protection. So far, the issue of procedural opportunities available to defense counsel in the context of ensuring client’s (suspect’s and accused) rights and interests in case of bail are lacking attention on the part of Ukrainian scholars.

The purpose of the article is to analyze the provisions of the Criminal Procedure Code of Ukraine (Ukraine’s CPC) and the law application practice which currently exists in our State regarding the use of bail in criminal proceedings, in particular, as regards resolution of problems arising in connection with the defense exercised when the said procedural measure is applied.

Procedural opportunities available to defense counsel in criminal proceedings are a set of his/her statutory rights and availability of an admissible situation allowing for skillful exercise of these rights. Therefore, in case an interim measure is imposed, it is not only about whether a defense counsel has procedural rights to be used when choosing, changing or canceling this measure, but also about the skills, conditions and techniques of their appropriate exercise, if this is necessary in a certain situation, as well as about the prospects and the possibility of using the same.

Bail is an unlimited-term interim measure involving certain duties assigned to the suspect and the accused. As soon as the period for which these duties are imposed expires, the ruling by which bail is set also terminates. Procedural opportunities open to defense counsel in such a situation are, using the procedural rights available to him/her, to arrange that bail is returned to the bailor.

Upon expiration of the term for which a duty or duties are set by the ruling of an investigating judge or court on imposing bail as an interim measure, if these duties are not continued according to the statutory procedure, this clearly indicates that bail as a pre-trial restriction is terminated, since otherwise the essence and the significance of this measure as such is lost. In this case, defense counsel can actually use his/her right to submit to the investigating judge a motion to return bail, and this creates a procedural opportunity for him/her to protect the client’s interest.

Although bail as an interim measure is inseparable from the duties for which it is imposed, when the question arises about expiration of the term of a respective duty, it is this duty secured by bail that should be continued rather than the interim measure proper – bail. However, Ukraine’s CPC does not provide for such a ruling by investigating judge. Therefore, defense counsel has a procedural opportunity, using his/her right to appeal against an investigating judge’s decision and being guided by the opinion of the Grand Chamber of the Supreme Court, to file an appeal against the said decision.

Procedural opportunities of defense counsel in criminal proceedings as a set of his/ her rights and the presence of a situation in which the same can be exercised, is a real mechanism to ensure the suspect’s rights, including in case bail is imposed in criminal proceedings.

Bibliography

Edited books

1. Velykyi tlumachnyi slovnyk suchasnoi ukrainskoi movy [Large Explanatory Dictionary of the Modern Ukrainian Language], t 4 (Busel V uklad i holov red, 7-me vyd, Perun 2009) (in Ukrainian).

Journal articles

2. ‘Rishennia Yevropeiskoho sudu z prav liudyny u spravi “Venditelli proty Italii” (Venditelly v. Italy) vid 18 lypnia 1994 roku’ [‘Judgment of the European Court of Human Rights in the Case of Venditelly v. Italy of July 18, 1994’] (1998) 2 Praktyka Yevropeiskoho sudu z prav liudyny. Rishennia, doslidzhennia, normatyvni akty 29-31 (in Ukrainian).

Websites

3. ‘Mozhlyvist’ [‘Opportunity’] (Publichnyi elektronnyi slovnyk ukrainskoi movy) <http://ukrlit.org/slovnyk/mozhlyvist> (accessed: 26.10.2019) (in Ukrainian).