Review

The article deals with the problem in common law of the issue of compliance with international standards for the protection of rights and freedoms and the Constitution of Ukraine regarding the automatic extension during the preparatory court hearing of the measures to ensure the criminal proceedings, including preventive measures in respect of the accused without adopting a reasoned court decision.

On the basis of the ECHR practice, a set of conditions for compulsory adoption and validity of court decisions on detention: a reference to the law by reason of use; relevance of applying legal basis for the specific circumstances of the proceedings; analysis of all arguments for and against detention, adducing relevant and sufficient reasons (evidence) to support the need of their use; consideration of the stage of criminal proceedings; analysis of exclusive cases only if there are the same risks that justify enduring detention within the whole course of the proceedings until the imposition of a sentence; the presence of analysis of the reasons why less severe preventive measures for the individual's right to freedom  cannot be applied to prevent the risks, which justify the necessity of detention. The legal consequence of the lack of judgment and proper motivation (argumentation), even in case of the circumstances of the case that indeed justify the enduring detention, leads to the compulsory conclusion for unsubstantiated court decision, and, therefore, to conclusion for a violation of stated right guaranteed by Article 5 of the Convention.

Based on the analysis of the legal position of the European Court of Human Rights on the given issue, there was an approval of the position, specified in the constitutional petition of the Verkhovna Rada of Ukraine on Human Rights V. Lutkovska, that the third sentence of Article 315 CCP, in particular as a preventive measure in the form of detention or house arrest is considered extended in the absence of the parties' petitions to change or cancel such measure without obliging the court to decree with the court reasoned decision, and deprives the individual from adequate protection against arbitrary action that is inconsistent with the requirements of Article 8 and the second part 29 of the Constitution of Ukraine in their relationship.

In addition, the article concludes that to understand the unconstitutionality of the third sentence of Article 315 CCP there can be a broader approach, given the impossibility of automatic renewal of the measures to ensure criminal proceedings, including any preventive measure, without a court decision during the preparatory proceedings

Keywords: court decision, measure providing criminal proceedings precaution accused.