Pretrial Restraints in Ukraine: How to Avoid Detention in Custody

The issue of a pretrial restraint is one of the sharpest moments in criminal proceedings. This is where the main thing for a person is decided: staying free or ending up in custody. And this is exactly where a well-prepared defense has the greatest effect.

This material is for information only and does not replace a consultation. Every situation is unique, so for your specific case you should consult a lawyer.

Key points

• Pretrial restraints are measures provided for by the Criminal Procedure Code of Ukraine that limit the rights of a suspect or accused during the proceedings (Article 176 of the CPC).
• The types, from the mildest to the most severe: a personal undertaking, a personal surety, bail, house arrest, detention in custody (Articles 179-183 of the CPC).
• A restraint is chosen, as a rule, by the court on the motion of the prosecution.
• The court considers the gravity, the presence of risks and information about the person.
• The main thing for the defense is to prepare in advance: gather documents about the person, justify a milder measure and rebut the risks.

What a pretrial restraint is

A pretrial restraint is not a punishment. It is a procedural tool whose purpose is to ensure the proper conduct of a suspect or accused during the proceedings. In plain words, the state wants to be sure that the person will not flee, will not destroy evidence, will not influence witnesses and will not commit a new offense. A restraint is not applied automatically: the prosecution must prove to the court that it cannot be done without.

What types of pretrial restraints exist

• Personal undertaking (Article 179 of the CPC). The person undertakes in writing to fulfill the imposed obligations.
• Personal surety (Article 180 of the CPC). Guarantors vouch for the proper conduct of the person.
• Bail (Article 182 of the CPC). A deposit of funds as a guarantee. With proper conduct, the bail is returned.
• House arrest (Article 181 of the CPC). A ban on leaving the home around the clock or during set hours.
• Detention in custody (Article 183 of the CPC). The most severe measure, applied as an exceptional one.

Separately, there is apprehension, which is a short-term temporary measure rather than a final pretrial restraint.

Who chooses a pretrial restraint and how

The most severe measures, in particular detention in custody and house arrest, are chosen by the court on the motion of the prosecution. The hearing takes place in a court session, where the suspect and their defense lawyer have the right to object, submit documents and propose alternatives. The result is not predetermined, and a great deal depends on the quality of the defense’s preparation.

What the court takes into account

• the weight of the evidence that an offense was committed
• the gravity of the possible punishment
• the presence of risks: absconding, destroying evidence, influencing witnesses, continuing unlawful activity
• information about the person: age, state of health, family status, having a job and a place of residence
• other circumstances that matter

Risks must be proven, not assumed. So one of the tasks of the defense is to show that there are no real risks or that they can be removed by a milder measure.

How to avoid detention in custody

Detention in custody is an exceptional measure. To avoid it, the defense usually:

• rebuts the risks the prosecution relies on
• gathers documents about the person: references, certificates about work, family, state of health, place of residence
• justifies the possibility of applying a milder measure
• engages guarantors in the cases provided for by law
• prepares a position on the amount of bail

Thoughtful and early preparation often makes it possible to replace a severe measure with a milder one.

Appealing and changing a pretrial restraint

A decision to apply a pretrial restraint can be appealed in the manner provided for by law. In addition, a restraint is not unchangeable: if the circumstances change, the question of softening or lifting it can be raised.

The lawyer’s role

On the question of a pretrial restraint, a lawyer analyzes the motion and the evidence of risks, prepares objections and gathers documents about the person, justifies a milder measure, represents the client’s interests in the court session and, where necessary, appeals the decision. It is here that the timely work of the defense often decides whether a person stays free or not.

Frequently asked questions

Is a pretrial restraint already a punishment?

No. It is a procedural measure to ensure the proceedings, not a punishment. Only a court can impose punishment through a verdict.

Who decides the issue of detention in custody?

The court, on the motion of the prosecution. The suspect and the defense lawyer have the right to object and propose alternatives.

Can I get bail or house arrest instead of custody?

Yes, where there are grounds. The task of the defense is to justify that a milder measure is sufficient.

Is bail returned?

With proper conduct and fulfillment of the obligations, yes. The conditions are set by law and by the court’s decision.

Can a pretrial restraint be changed later?

Yes. If the circumstances change, the question of softening or lifting the measure can be raised.

When should I engage a lawyer?

As early as possible, before the motion is considered. The earlier, the more opportunities there are to influence the outcome.

Need a lawyer’s help on a pretrial restraint

If the issue of a pretrial restraint is being decided in your case, act without delay. LEXON lawyers will prepare a position, gather documents and justify a milder measure so as to prevent detention in custody where it is not needed. We are available around the clock. Leave a request or call us.

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