PROCEDURAL GUARANTEES OF THE RIGHTS OF THE SUSPECT (ACCUSED) WITHIN THE SCOPE OF SPECIAL CRIMINAL PROCEEDINGS (IN ABSENTIA): JUDICIAL PRACTICE

Abstract

In modern geopolitical conditions, there is a need to adapt the national legal system to the conditions of martial law. A special procedure for the administration of justice in modern conditions is special criminal proceedings (in absentia). Its main task is to ensure the principle of the inevitability of punishment. In turn, this task is achieved through the rigorous provision of guarantees for the rights of the suspect (accused) and maintaining a balance between the effectiveness of the investigation and human rights standards. In the absence of the suspect (accused), there are reasonable risks of violations of procedural guarantees enshrined in national legislation or their interpretation in a purely formal sense, which jeopardizes the legitimacy of judicial decisions. In view of this, the key factor during special criminal proceedings is the observance of procedural guarantees of the rights of the suspect (accused) by the prosecution and the court. In this regard, the article aims at a comprehensive study of the legal nature and practical implementation of criminal procedural guarantees within the framework of special criminal proceedings (in absentia). Since they are intended to neutralize the risks associated with the absence of the suspect or the accused. The article examines in detail the functional duties of the prosecution and the court, the implementation of which is directed at observing the guarantees of the rights of the suspect (accused). The dangers of a formal approach to the protection of the rights of a person who is outside the jurisdiction of the law enforcement institutions of Ukraine are identified. The methodological apparatus of the research is built on a combination of general scientific and special legal methods, which allowed for the objectivity of the conclusions. In particular, methods of analysis and synthesis were used to investigate doctrinal approaches to the definition of procedural guarantees. The system-structural method allowed for determining the role of guarantees in the mechanism of special criminal proceedings. A special place is occupied by the case method, which was used to study the legal positions of the Cassation Criminal Court within the Supreme Court regarding typical procedural errors in in absentia cases. Results. In the course of the study, it was established that criminal procedural guarantees in special proceedings acquire a specific compensatory nature. This means that the absence of the person must be compensated by the increased activity of the defense counsel and enhanced judicial control. It is proved that the key guarantees are proper notification through public sources, mandatory participation of a lawyer, and the right to a retrial in case of the person’s appearance. The procedural status of the investigating judge and the prosecutor as subjects responsible for the legitimacy of initiating the in absentia procedure is detailed. Based on the analysis of judicial practice, the main procedural violations are identified, which become an obstacle to high-quality justice and may call into question the legal force of the decisions made. Conclusions. Based on the results of the study, it is concluded that the effectiveness of the in absentia institute is determined by the quality of compliance with procedural orders defined by national legislation. Special proceedings require a departure from formalism in favor of real protection. Prospects for further research lie in studying international experience in overcoming the conflict between the effectiveness of investigation and human rights, as well as in developing proposals for improving Chapter 24-1 of the Criminal Procedure Code of Ukraine regarding the clarification of grounds for renewing the terms for appealing sentences rendered in the absence of a person.