PECULIARITIES OF DETENTION OF A PERSON WITHOUT A DECISION OF AN INVESTIGATING JUDGE UNDER MARTIAL LAW

Abstract

The article examines the specifics of detaining a person without a decision of an investigating judge in the conditions of martial law, in particular – in the areas of hostilities and in the temporarily occupied territories of Ukraine. The peculiarities of the legal regulation of detention in conditions of martial law are revealed, taking into account the norms of criminal procedural legislation, special legislation and international humanitarian law. The transformation of the grounds, terms and procedures of detention, as well as the peculiarities of judicial control in the conditions of armed conflict, are analyzed. The problems of ensuring human rights are highlighted, in particular the right to freedom, the right to protection and the proper recording of detention. Particular attention is paid to the legal assessment of detentions in the temporarily occupied territories and their qualification as illegal deprivation of liberty and a war crime. It has been established that the legal regulation of detention in conditions of martial law is determined primarily by Article 615 of the Criminal Procedure Code of Ukraine, which provides for the possibility of adapting procedural procedures to conditions when the functioning of courts, pre-trial investigation bodies or other institutions is complicated or temporarily impossible. In so doing, such adaptation is of an exclusive nature and should be applied only in the presence of objective obstacles related to hostilities. It is substantiated that in the conditions of martial law, there is an expansion of the actual grounds and goals of detention, which is used not only as a procedural measure to ensure criminal proceedings, but also as a tool for neutralizing threats to national security. Significant risks to human rights have been shown to arise from the difficulty of properly recording detention, limited access to legal aid and the use of remote forms of judicial proceedings. This necessitates the implementation of additional guarantees, in particular the development of electronic systems for recording detained persons and ensuring real access to the defender even in the conditions of hostilities.