The article is devoted to the study of the normative regulation of the general responsibilities of a judge for the protection of human rights and the practice of their implementation. The study shows the need to improve the provisions of the Criminal Procedural Code of Ukraine (CPC of Ukraine) on these powers to ensure the effectiveness of their implementation, which will positively affect the exercise of the function of protection in criminal proceedings.

The author analyses the case law of the application of the general responsibilities of a judge for the protection of human rights. Emphasis is placed on reaching an understanding on two key issues: 1) illegal detention may be appealed to the investigating judge by analogy in accordance with Art. 206 of the CPC of Ukraine; 2) the decision of the investigating judge, rendered as a result of consideration of the complaint on illegal detention, is not subject to appeal. The issue of the competence of the investigating judge to appeal the lawfulness of detention is considered, the focus is on ambiguous aspects of the procedure for such an appeal. This appeal is in fact implemented by the defence by filing a complaint against the illegal detention of a person. Such a complaint is considered: 1) during the court hearing of the petition for application of a measure of restraint to a person; 2) in a separate trial.

It is noted that in order to exercise the constitutional right of every detainee to appeal his detention in court at any time, the jurisprudence should proceed from the fact that the defence during the pre-trial investigation may exercise the right to appeal illegal detention under Art. 206 of the CPC of Ukraine: 1) in court consideration of the petition for application of a precautionary measure to the suspect; 2) at any time in the format of a separate trial, if the person has not considered the application of a precautionary measure.

Attention is drawn to the incorrectness of certain provisions of Art. 206 of the CPC of Ukraine on the procedure for receipt for consideration by the investigating judge of the request to ensure the rights of the detained person. Emphasis is placed on the lack of a form of appeal to the investigating judge with such a statement. The author emphasizes that the investigated competence of the investigating judge ensures a fair balance between the procedural rights and responsibilities of the prosecution and defence.

Bibliography

Edited books

1. Hlovyuk I ta Pashkovskyy M, ‘Pytannya zastosuvannya statti 206 KPK Ukrayiny: zatrymannya u tranzytniy zoni aeroportu’ v Kaplina O ta Maryniv V ta Shylo O (red), Kryminalnyy protses: suchasnyy vymir ta prospektyvni tendentsiyi: II Kharkivskii kryminalnyi protsesualnyi poliloh (Pravo 2020) (in Ukrainian).

Journal articles

2. Hlovyuk I, ‘Vykorystannya polozhen statti 206 Kryminalnoho protsesualnoho kodeksu pry zdiysnenni zakhystu u kryminalnomu provadzhenni’ (2016) 2 Visnyk kryminalnoho sudochynstva 24 (in Ukrainian).

3. Tyshchenko O, ‘Oskarzhennya zatrymannya u kryminalnomu provadzhenni: teoretychnyy ta praktychnyy aspekt’ (2018) 1 Visnyk kryminalnoho sudochynstva 49 (in Ukrainian).

4. Vynokurov O, ‘Oskarzhennya nezakonnoho zatrymannya: problemy teoriyi ta praktyky’ (2016) 2 Visnyk kryminalnoho sudochynstva 19 (in Ukrainian).

5. Yanovska O, ‘Zastosuvannya praktyky yevropeyskoho sudu z prav lyudyny pry zdiysnenni sudovoho kontrolyu u kryminalnomu provadzhenni’ [2013] 2 (27) Visnyk Akademiyi advokatury Ukrayiny 12 (in Ukrainian).