Preventive measures: how to avoid being remanded in custody

Key points

• A preventive measure is not a punishment but a way of securing the proper conduct of a suspect before the verdict. The types are set out in Article 176 CPC.
• There are five measures: personal undertaking, personal surety, bail, house arrest and detention, from the mildest to the most severe.
• Detention (a remand centre) is applied only as an exceptional measure, where no other can prevent the risks.
• The amount of bail under Article 182 CPC is set in subsistence minimums depending on gravity: from 1 to 20, from 20 to 80 or from 80 to 300.
• A ruling on a preventive measure can be appealed, and a change to a milder measure can be requested.

When the question of a preventive measure is decided, a person liberty for the whole period of investigation and trial is at stake, and that can mean months. Preparing for that hearing is therefore no less important than the defence on the merits. Attorney Vitalii Petryk, who has handled criminal cases in Kyiv since 2011, explains the types of preventive measures, what determines the choice and how to persuade a court to choose a milder measure instead of detention.

What a preventive measure is and why it exists

A preventive measure is a temporary restriction of the rights of a suspect or accused, applied by a court to secure their proper conduct in the proceedings. The aim is not to punish in advance but to prevent the person from absconding, influencing witnesses, destroying evidence or continuing unlawful activity.

The key point is that suspicion alone does not mean a person will be placed in custody. The law requires the least severe measure capable of achieving the aim of the proceedings. That works directly in favour of the defence.

Five types of measures under Article 176 CPC

Article 176 CPC sets out an exhaustive list, from the mildest to the most severe: personal undertaking, personal surety, bail, house arrest and detention. For military personnel there is also transfer under the supervision of the command. A court cannot invent another measure; it chooses only from this list.

The logic of the law is consistent: each measure is more severe than the previous one, and it may be applied only where a milder one would not secure the person proper conduct. The burden of proving the need for a severe measure lies on the prosecution.

Personal undertaking and surety

A personal undertaking (Article 179 CPC) is the mildest measure. The suspect undertakes in writing to perform the imposed duties: to appear on every summons, not to leave the locality, not to communicate with certain persons, to surrender the passport for travel abroad. The person remains at liberty under those restrictions.

A personal surety (Article 180 CPC) means that trustworthy guarantors vouch for the proper conduct of the suspect. They undertake to secure the person appearance and compliance with their duties, and in the event of breach they bear liability, including financial.

Bail: how much and how

Bail (Article 182 CPC) is the payment of funds into the court deposit account as a guarantee of compliance with duties. The amount is set as a multiple of the subsistence minimum for able-bodied persons depending on the gravity of the offence: 1 to 20 for a less grave crime, 20 to 80 for a grave one, 80 to 300 for a particularly grave one. In exceptional cases a court may set a higher amount if the usual limits would not secure proper conduct.

If the person complies with all duties, the bail is returned once the proceedings end. If they breach the conditions or abscond, the funds go to the state. Well-reasoned bail often becomes a real alternative to detention, so its amount and the source of funds should be prepared in advance.

House arrest and detention

House arrest (Article 181 CPC) means a prohibition on leaving the home around the clock or during specified hours. It is often combined with electronic monitoring. It is a tangible restriction, but the person stays at home with the family rather than in a remand centre.

Detention (Article 183 CPC) is the most severe measure and exceptional by nature. The prosecutor must prove not only that the suspicion is well founded but also that real risks exist: absconding, pressure on witnesses, destruction of evidence or continuation of the offence. If the evidence of risk is weak or absent, that is the main point of the defence. The court must also verify each time whether a milder measure could be chosen.

How the defence secures a milder measure

The strategy has two directions: rebutting the risks and demonstrating the person strong social ties. The defence lawyer shows the court a permanent place of residence and work, a family and dependent children, the absence of previous convictions, the state of health and readiness to cooperate with the investigation. The lawyer proposes a concrete alternative to detention (bail or surety), rebuts the prosecutor arguments and, where necessary, appeals the ruling.

Thorough preparation for the hearing on a preventive measure often determines whether a person ends up behind bars or awaits trial at home. A lawyer should therefore be involved before the hearing, not after it.

Frequently asked questions

Is a preventive measure a punishment? No. It is a way of securing appearance and proper conduct before the verdict. Guilt is established only by a court, and until then the presumption of innocence applies.

Is bail returned? Yes, provided all imposed duties are complied with. If the conditions are breached or the person absconds, the funds go to the state.

When is detention applied? Only as an exceptional measure, where milder ones cannot prevent real risks of absconding, pressure on witnesses or continuation of unlawful activity.

Who can be a guarantor? A trustworthy person willing to vouch in writing for the proper conduct of the suspect and to bear liability for it, including financial.

Can a detention decision be appealed? Yes. A ruling on a preventive measure can be appealed within the prescribed time limit, and later the court can be asked to change it to a milder one.

Read also

• Police detention: your rights and first steps
• Notice of suspicion: what it is and what to do next
• Appealing a verdict: appeal and cassation
• Legal services

Need defence? Contact an attorney

Attorney Vitalii Petryk, Kyiv. Preparation for preventive measure hearings and defence in criminal cases at every stage, from detention to trial.

Phone: +38 (096) 878-07-36
Email: info@advokat-petrik.com
Address: Kyiv, Holosiivskyi Avenue 132, RELE Business Centre

Disclaimer

This material is informational and is not legal advice or a guarantee of any particular result. Every situation is individual and the application of the rules depends on the specific circumstances. For an assessment of your case, seek personal advice from an attorney. The author observes the Rules of Advocates Ethics and the Law of Ukraine on the Bar and Advocacy.