Проблема винятковості тримання під вартою в контексті європейських та національних стандартів

The article is devoted to a comprehensive analysis of the issue of the misuse of pre-trial detention as a preventive measure in the criminal procedure of Ukraine. Despite the legislatively declared exceptional nature of this measure, the systemic preference for pre-trial detention over other less burdensome preventive measures leads to numerous violations of the individual’s right to liberty and personal integrity. The study focuses significantly on the analysis of national legislation, judicial practice, and the case law of the European Court of Human Rights (hereinafter – the ECtHR) in relation to Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The necessity of imposing pre-trial detention is assessed, particularly in terms of the standards of “reasonable suspicion,” the risks of obstructing criminal proceedings, and the adequacy of considering alternatives to detention. The notions of “reasonable suspicion” and “risks” are examined, with the main issue being the absence of clear legislative definitions. Special attention is given to a number of principles highlighted by the ECtHR that reflect the risks which national courts must consider when deciding on detention during the pre-trial investigation phase. The article reveals core problems with the use of so-called risks often cited by pre-trial investigation bodies to justify detention, even when there are insufficient factual grounds. The justification of the mere «possibility» that the suspect or the victim might commit a certain act should not go beyond the limits of the guaranteed rights and freedoms of such individuals. Such reasoning undermines the balance between rights, duties, and powers, violating fundamental principles of modern legal systems such as democracy, the rule of law, and equality. Typical violations have been identified, including a formalistic approach, template reasoning, and automatism in extending detention periods. Such practices clearly contradict not only international standards but also the foundational principles of Ukraine’s criminal procedure law – including sufficiency, proportionality, and the presumption of personal freedom. In conclusion, the article emphasizes the need to improve procedural legislation and introduce clearer criteria for proving the existence of risks, as well as to strengthen human rights guarantees in national legal practice. The relevance of this issue is also driven by the need to reconsider entrenched judicial practice, which often neglects the principle of individual assessment and fails to ensure a proper balance between public interest and individual rights.