Zastrozhnikova K. Criminal proceedings during a special period

Based on an analysis of Ukraine's criminal procedural legislation and its application in practice, scientific works by domestic and foreign scientists, and a synthesis of empirical data, this dissertation conducts a comprehensive study of the essence and legal nature of the introduction of a special period in Ukraine, its impact on criminal proceedings and the formation of new models of law enforcement in the context of the special regime of pre-trial investigation and judicial proceedings under martial law. The essence and legal nature of a special period in a state under conditions of military aggression against it are revealed, a comprehensive definition of this concept is proposed, and the main features and time limits are highlighted. Based on an analysis of international regulatory and legal acts and criminal procedural legislation of foreign states, it has been established that there is no established terminology that would reveal the content and nature of a ‘special period’. A number of legal categories have been identified that are similar in meaning and functional purpose to this concept (state of emergency, martial law, public danger threatening the life of the nation, state of siege). The conclusion has been substantiated that the introduction of such legal regimes entails a significant adjustment of the general procedure for exercising public authority, including in the field of criminal proceedings, with the aim of ensuring public order, national security and preventing systemic threats to the constitutional order. Based on an analysis of current Ukrainian legislation, the legal regimes that form the content of the special period have been identified and their differences outlined. It has been proven that each of these regimes provides for the use of specific legal instruments aimed at ensuring an adequate response by the state to challenges that threaten its existence, the stability of society and the security of citizens. Considering the martial law introduced in Ukraine, the peculiarities of criminal proceedings in these conditions have been determined, its conceptual transformation and expansion of the scope of regulation have been justified by introducing a special regime of pre-trial investigation and judicial proceedings. It analyzes the terminological relationship between the concepts of ‘criminal proceedings under martial law’ and ‘special regime of pre-trial investigation and judicial proceedings under martial law.’ It highlights the normative component of the special regime of pre-trial investigation and judicial proceedings under martial law. The relationship between this regime and other forms of special procedures established in the criminal procedural legislation of Ukraine is analysed. A comprehensive definition of the concept of a special regime for pre-trial investigation and judicial proceedings under martial law is proposed, and its grounds and conditions, covering both procedural and territorial factors, are highlighted. It is argued that the special regime of pre-trial investigation and judicial proceedings not only requires the adaptation of procedural mechanisms but also entails significant institutional changes in the system of criminal proceedings, requiring a rethinking of the distribution of powers and a reformatting of the roles of the authorities. Attention is focused on the issue of the ‘legal deactivation’ of the special regime of pre-trial investigation and judicial proceedings. The influence of the special regime of pre-trial investigation and judicial proceedings on the transformation of the procedural mechanism for restricting the constitutional rights of participants in proceedings has been studied. General social and procedural directions of restricting human rights and freedoms under martial law have been identified. The normative regulation of mechanisms for restricting human rights and freedoms in both national legislation and the legal systems of foreign states has been analysed. The procedure and legal criteria for derogation from human rights under martial law have been identified, the range of constitutional rights that are most often subject to temporary restriction by the state has been determined, and the relevant practice of the European Court of Human Rights has been examined. The presence and absence of specialised norms in the criminal procedural legislation of foreign states regulating the conduct of criminal proceedings under special legal regimes has been analysed. It has been proven that most foreign countries lack systematic regulatory regulation of the special regime of criminal proceedings. The specifics of conducting pre-trial investigations under martial law have been studied, and factors which affect both the activities of investigative bodies and the investigation model in general have been identified, resulting in the formation of a special regime for pre-trial investigations.