Not allowed the detention of the suspect or accused without a court decision, which excludes in particular the possibility of automatic prolongation of such a measure. This conclusion was made by the High specialized court of Ukraine on consideration of civil and criminal cases in the information letter No. 9-3167/0/4-16 from December 30, 2016 "On the adoption of General measures due to a violation of article 5 of the Convention for the protection of human rights and fundamental freedoms, established by the decision of the European court of human rights on 9.10.2014 in the "Canew against Ukraine". 

The appeal raises the question of the practice of TTFS. 315, 331 of the Criminal procedure code in connection with the ECHR's findings, in paragraphs. 30, 31 the solution from 9.10.2014 in "Chanev against Ukraine." 

With the purpose of observance of procedural order of application of measures of restraint, including remand in detention during the preparatory proceedings it is necessary to consider the following. 

When sending the indictment to the court the measure of restraint against the accused is unchanged within the period determined by the ruling of the investigating judge during pre-trial investigation (if in accordance with the requirements of Chapter 18 UPK the form of preventive measure provides for the duty of a judge to determine its validity). A measure of restraint elected or extended by the investigating judge during pre-trial investigation may be extended, changed only in the preparatory court session. 

In the case where after referral of the indictment to the court of first instance and before the holding of a preparatory hearing, the period of application of measures of restraint has expired, the measure of restraint is deemed that terminated in connection with the expiration of the term for which this measure of restraint was elected. 

Under the provisions of part 3 of article 315 of the criminal procedure code during the preparatory court hearing, the court at the request of the parties to the proceedings has the right to elect, change or cancel the measures of providing of criminal proceedings, including the measure of restraint chosen against the accused. In considering such petitions, the court follows the rules laid down in section II of the criminal procedure code. In the absence of the motions of the parties to criminal proceedings applying measures to ensure criminal proceedings, elected during the pre-trial investigation, shall be deemed extended. 

Given this, part 3 of article 315 of the criminal procedure code contains rules that clearly regulate the extension of preventive measures in criminal proceedings, the period of application of which is not limited (for example, bail, personal guarantee, etc.). Regarding the application of measures, limited period (house arrest, detention and the like), a specific ruling of the investigating judge during pre-trial investigations, courts must take into account that election, the extension of such measures during the preparatory court hearing is at the request of the parties to the proceedings subject to the requirements of Chapter 18 of the criminal procedure code.

With respect to the election or extend the measure of restraint in form of detention during the preparatory proceedings the courts in applying the provisions of part 3 of article 315 of the criminal procedure code it is necessary to consider the practice of the ECHR, according to which simultaneously with the definitions of legal custody and the procedural safeguards of election and the extension of the application of such measures was clearly recognized improper "automatic" extension of the application of the preventive measure in the form of detention. Therefore, in the absence of appropriate pleadings, the court during the preparatory court hearing Commissioner to put before the parties to the proceedings a question concerning the measure of restraint (for which the criminal procedure code provides for limited duration) as the court at this stage of the process is responsible for maintaining a reasonable processing time. 

In paragraph 30 of the decision of the ECHR from 9.10.2014 in "Chanev against Ukraine," this international judicial body has established that the new criminal procedure code clearly and precisely does not regulate the question of the detention of a person in the period after the pre-trial investigation and before trial. It is also stated that the existing criminal procedural legislation (art. 331 of the criminal procedure code) gives the court the right to decide the question of extending the detention for two months from the date of receipt of the indictment to the court, even if already expired the previous ruling on detention, as defined by the investigating judge during pre-trial investigation.