Review

In this assay is analyzed the provisions of national legislation and international legal documents  on  criminal proceedings, as well as problems of application of provisional arrest and proving  when applying the preventive measures, taking into account the practice of  the European Court of Human Rights.

The author had come to conclusion: by  Procedural Criminal Code of Ukraine is defined the common terms of takeover procedure of criminal proceedings, but its implementation depends on the regulation of certain provisions in the Treaty on international legal assistance, because by mentioned provisions can be defined procedure, which is different from the national legislation criminal procedure.

The author had come to conclusion that  the object of proving the circumstances, which should be determined in criminal procedure depends on the legal regulation in the relevant provisions of the international treaty. Therefore, author had proposed   be guided by multilateral or bilateral agreements ratified by Ukraine, in the specific case of  the State- requestor

The author had conducted analysis of the provisions the Agreement between Ukraine and the United States on mutual legal assistance in criminal cases (22.07.1998)  and come to conclusion that  its provisions is not  stipulated possibility of taking over the criminal proceedings and  temporary detention of a person before the moment of receipt of a request for legal assistance .

However, the provisions of the European Convention on the Transfer of Proceedings in Criminal Matters of 15.5.1972, the (further - ECTPCM) stipulates the procedures of taking over the criminal proceedings and  temporary detention.

The author had come to conclusion  that among the above international legal agreements only European Convention provides the possibility of a person  in protection and  proving the circumstances, which prevent the takeover of the criminal proceedings, which is the key to guaranteeing the right to a fair trial.

The author had come to conclusion  that preventive measures is  possible only after the start of the pre-trial investigation and implementation of the relevant proceedings (interrogation, reports of the suspicion, establishing risk under article 177 Procedural Criminal Code of Ukraine, etc.).

Choosing a preventive measure as the temporary detention in the order by the articles 597, 583 of  Procedural Criminal Code of Ukraine upon the request of the takeover of the criminal proceedings is unlawful, because it contradicts with the general principles of criminal proceedings and of the European Court of Human Rights.

Keywords: criminal proceedings for takeover; international legal assistance; Ask for takeover criminal proceedings; provisional arrest; precautions; international legal agreement.