Taras Bezpalyy, attorney, counsel at Legal Alliance Company
Maryna Mkrtycheva, paralegal at Legal Alliance Company
Yuridicheskaya Gazeta, 26.06.2018
Life of the Criminal Procedure Code has changed into “before” and “after” the changes. This statement concerns pre-trial investigation terms as well since Law of Ukraine No. 2147-VIII as of October 3rd, 2017 amended the Criminal Procedure Code of Ukraine as concerns pre-trial investigation terms (Article 219 of the Criminal Procedure Code of Ukraine) and the procedure for pre-trial investigation term extension (para 4, Chapter 24, Section III of the Criminal Procedure Code of Ukraine) which are not retroactive and are applied in cases entered in the Single Register of Pre-Trial Investigations after effective date of these changes (part 4 of para 2, Section 4 of the Law of Ukraine No. 2147-VIII as of October 3rd, 2017).
We will not offer legal analysis of constitutional nature of such changes, but offer to consider the pre-trial investigation terms and the procedure for their extension in terms of the changes emphasizing their peculiarities.
1. Pre-trial investigation terms
1.1. The Criminal Procedure Code of Ukraine (old version)
In accordance with Article 219(1) of the Criminal Procedure Code of Ukraine a pre-trial investigation must be completed as follows: 1) within one month upon informing a person of a suspicion of a criminal offence; 2) within two months upon informing a person of a suspicion of a crime.
The general term may not exceed: 1) two months upon informing a person of a suspicion of a criminal offence; 2) six months upon informing a person of a suspicion of a petty of moderately severe crime; 3) twelve months upon informing a person of a suspicion of a severe or grossly severe crime (Article 219(2) of the Criminal Procedure Code of Ukraine).
Peculiarity: the Criminal Procedure Code of Ukraine (old version) has not established the procedure for pre-trial term calculation before notice of suspicion. It was misused by law enforcement agencies, since pre-trial investigation, if a reasonable term is violated, can last for several years. Often criminal proceedings where pre-trial investigation lasted for a long time regarding third parties and led to violation of their rights and interests took place. In this case the representatives should pay attention to the practice of the European Court of Human Rights which is stable with respect to carrying effective official investigation and reasonable terms. Thus, in its decision in case “Merit v Ukraine” as of March 30th, 2004 the Court stated that criminal proceedings in a case for reasonable term defined in Article 6(1) of the Convention start when it is found that state authorities consider a person a suspect or accused of a crime. In particular, the proceedings term can start from the day of a person’s custody; informing him of criminal proceedings initiation against him; pre-trial investigation beginning.
1.2. The Criminal Procedure Code of Ukraine (new version)
Article 219(1)(2) of the Criminal Procedure Code establishes the pre-trial investigation term from the moment of entering a criminal offence data to the Unified Register of Pre-Trial Investigations to the day of informing a person of a suspicion as follows: 1) six month in a criminal offence proceeding; 2) twelve months in a petty of moderately severe crime proceedings; 3) eighteen months of a severe or grossly severe crime proceedings.
Pre-trial investigation must be completed as follows: 1) within one month upon informing a person of a suspicion of a criminal offence; 2) within two months upon informing a person of a suspicion of a crime (Article 219(1)(3) of the Criminal Procedure Code of Ukraine). The general term may not exceed 1) two months upon informing a person of a suspicion of a criminal offence; 2) six months upon informing a person of a suspicion of a petty of moderately severe crime; 3) twelve months upon informing a person of a suspicion of a severe or grossly severe crime (Article 219(2) of the Criminal Procedure Code of Ukraine).
Peculiarity: Article 294(1) of the Criminal Procedure Code of Ukraine permits repeated extension of the pre-trial investigation of crime or criminal offence till the moment of informing a person of suspicion if it is impossible to complete it in term specified in Article 219(1)(2) of the Criminal Procedure Code of Ukraine. The mentioned actually nullifies changes to the Criminal Procedure Code since the authorized persons will carry pre-trial investigation of a criminal case for an extremely long time which will lead to violation of reasonable terms and right to fair trial (Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms).
The term for which a pre-trial investigation of criminal cases can be extended before informing a person of suspicion is also interesting, since the legislator does not limit pre-trial investigation term in such criminal proceedings by general terms, but allows extending pre-trial investigation term for the general term (Article 294(1) of the Criminal Procedure Code of Ukraine). Thus, this part of the article, as we believe, requires legislative changes.
2. The procedure for pre-trial investigation term extension
2.1. The Criminal Procedure Code of Ukraine (old version)
If due to complexity of the proceedings it is impossible to complete the pre-trial investigation (Article 294(1) of the Criminal Procedure Code) in the term specified in Article 219(1) of the Criminal Procedure Code, it can be, upon the motion of the investigator or prosecutor (Article 295(1) of the Criminal Procedure Code) extended within the term specified in Article 219(2) of the Criminal Procedure Code.
The motion for the pre-trial investigation term extension must be in line with Article 295(2) of the Criminal Procedure Code and contain data specified in Article 294(3) of the Criminal Procedure Code. Its copy is handed over to a suspect and his counsel at least five days before submission of the motion to the prosecutor authorized to consider the pre-trial investigation extension term issue (Article 295(3) of the Criminal Procedure Code). The suspect and/or his counsel may submit to the investigator or prosecutor who initiates this issue written objections which are attached to the motion and submitted to the prosecutor authorized to consider them.
The prosecutor is obliged to consider the motion not later than within 3 days upon its receipt, but in any case before lapse of the pre-trial investigation term (Article 295(4) of the Criminal Procedure Code) and issue a procedural decision (resolution) (Article 295(5) of the Criminal Procedure Code).
2.2. The Criminal Procedure Code of Ukraine (new version)
If it is impossible to complete the pre-trial investigation of a crime or criminal offence in the term specified in Article 219 (1)(2) of the Criminal Procedure Code of Ukraine before informing a person of suspicion, the term may be repeatedly extended by an investigating judge upon the motion of the prosecutor or investigator as agreed with the prosecutor for the term specified in Article 219 (2) of the Criminal Procedure Code of Ukraine.
If due to complexity of the proceedings it is impossible to complete the pre-trial investigation from the day of informing a person of suspicion of criminal offence (inquiry) in the term specified in Article 219(1)(3)(1) of the Criminal Procedure Code of Ukraine, it can be extended within the term specified in Article 219(2)(1) of the Criminal Procedure Code of Ukraine by a district (city) or another equal position prosecutor.
If from the day of informing a person of suspicion of a crime it is impossible to complete a pre-trial investigation in the term specified in Article 219(1)(3)(2) of the Criminal Procedure Code of Ukraine, it can be extended within the terms specified in Article 219(2)(2),(3) of the Criminal Procedure Code of Ukraine.
The term of pre-trial investigation is extended upon the motion of investigator (in some cases – agreed with the prosecutor) or prosecutor (Article 295(1) of the Criminal Procedure Code of Ukraine) which must be submitted at least five days before lapse of the pre-trial investigation term (Article 294(5) of the Criminal Procedure Code of Ukraine) which cannot be renewed (Article 294(2) of the Criminal Procedure Code of Ukraine) and is in accordance with Article 295(2) of the Criminal Procedure Code of Ukraine or Article 295-1(2) of the Criminal Procedure Code of Ukraine and Article 294(4) of the Criminal Procedure Code of Ukraine.
The prosecutor must consider the motion not later that within three days upon its receipt, but in any case before lapse of the pre-trial investigation term (Article 295(4) of the Criminal Procedure Code of Ukraine) and issue a procedural decision (resolution) (Article 295(5) of the Criminal Procedure Code of Ukraine).
In cases specified in Article 294 of the Criminal Procedure Code of Ukraine, the pre-trial investigation term is extended at the corresponding motion of the prosecutor or investigator (Article 295-1(1) of the Criminal Procedure Code of Ukraine ) based on the investigating judge’s writ which cannot be appealed (Article 295-1(9) of the Criminal Procedure Code of Ukraine) and must comply with general standards of judicial decisions laid down in Article 370(8),(9),(21) of the Criminal Procedure Code of Ukraine (Article 295-1(8) of the Criminal Procedure Code of Ukraine) and contain new pre-trial investigation term.
The investigating judge must consider the motion within three days upon its receipt but in any case before lapse of the pre-trial investigation term, with the participation of the parties (after informing a person of suspicion) (Article 295-1(3) of the Criminal Procedure Code of Ukraine).
Peculiarities:
1) no requirement of granting the motion for the pre-trial investigation term extension to the defense by the investigating judge:
It is necessary to consider general provisions of the current legislation and reason own legal case with duty of a judge to create conditions for the parties to enjoy their procedural rights (Article 22(6) of the Criminal Procedure Code of Ukraine) based on the adversarial parties principle.
2) the duty to hand over the motion copy for pre-trial investigation term extension to the defence if there is no sanction for the failure to perform it;
The Criminal Procedure Code of Ukraine does not stipulate “failure to hand over a motion copy to the defence” as a reason for a prosecutor or investigating judge to dismiss the motion. Thereby the legislator actually created pre-conditions for the defence to neglect the right of the defence to file objections to the motion, obliging the investigative judge and prosecutor to consider the motion not later than within 3 days upon its receipt, but in any case before lapse of the pre-trial investigation term.
3) algorithm of actions in case of failure of the investigator or prosecutor to hand over the motion for the pre-trial investigation term extension.
We should pay attention to Article 303(1)(1) of the Criminal Procedure Code of Ukraine under which we can appeal omission of the investigator or prosecutor which is failure to carry procedural actions which they must take within the term specified by the Criminal Procedure Code of Ukraine, namely failure to hand over/untimely handing over to the defence of the motion for the pre-trial investigation term extension.
Court practice demonstrates that investigating judges often dismiss such complaints or return them to a person who filed them since such omission is not subject to appeal as specified by Article 303(1)(1) of the Criminal Procedure Code of Ukraine. Though there is positive practice where investigating judges satisfy such complaints (positive result is due to correct wording of the requirements and sometimes their narrowing).
If the omission is considered illegal, during the trial we can initiate the issue of invalidation of evidence obtained after the pre-trial investigation term was extended in violation of the procedure prescribed by the Criminal Procedure Code of Ukraine.
In case of dismissal Article 303(2) of the Criminal Procedure Code of Ukraine should be paid attention to. It enshrines the right to appeal other decisions, actions or omission of an investigator or prosecutor than those specified in Article 303(1) of the Criminal Procedure Code of Ukraine during the preparatory court proceeding.
4) what data must contain objections to the specified motion;
Objections to motions must demonstrate non-compliance of the motion with Article 295(2) of the Criminal Procedure Code of Ukraine or Article 295-1(2) of the Criminal Procedure Code of Ukraine, non-observance of Articles 28 and 113 of the Criminal Procedure Code of Ukraine, absence of grounds specified in Article 294(3) of the Criminal Procedure Code of Ukraine (old version) and Article 294(4) of the Criminal Procedure Code of Ukraine (new version), unproved circumstances of Article 296(1) of the Criminal Procedure Code of Ukraine (old version), Article 295(8) of the Criminal Procedure Code of Ukraine or Article 295-1(5) of the Criminal Procedure Code of Ukraine.
3. Grounds for the pre-trial investigation term extension
The ground for satisfying the motion by the prosecutor is his internal conviction of the circumstances specified in Article 296(1) of the Criminal Procedure Code of Ukraine (old version) and Article 295(6) of the Criminal Procedure Code of Ukraine (new version).
Peculiarities: the resolution for the pre-trial investigation term extension except for a case file is based on the prosecutor’s internal conviction, thus it must contain not only the data specified in the investigator’s motion, but also must comply with Articles 8,9 and 110 of the Criminal Procedure Code of Ukraine, be grounded and duly reasoned, and the examination term cannot be arbitrarily delayed and must be reasonable.
Along with the specified Article 295-1 of the Criminal Procedure Code of Ukraine does not prescribe clear grounds on which the investigating judge makes a writ for the custody term extension. However, based on the systemic analysis of this article, we can make a conclusion that the investigating judge issues such a writ in case the motion complies with Articles 8,9 and 295-1(2) of the Criminal Procedure Code of Ukraine, and also if the investigator proves the circumstances specified in Article 295-1(5) of the Criminal Procedure Code of Ukraine.
4. Grounds for non-extension of the pre-trial investigation term
4.1. The Criminal Procedure Code of Ukraine (old version)
The prosecutor dismisses the motion if the investigator or prosecutor does not prove the circumstances specified in Articles 296(1) and 297(1) of the Criminal Procedure Code of Ukraine.
4.2. The Criminal Procedure Code of Ukraine (new version)
The prosecutor dismisses the motion (Article 295(8) of the Criminal Procedure Code of Ukraine) on the grounds specified in Article 297(1) of the Criminal Procedure Code of Ukraine (old version).
The legislator authorized the court with the following powers upon consideration of the motion for the pre-trial investigation term extension, except for motion satisfaction: motion return and motion dismissal.
The grounds for the motion return are as follows: the motion does not comply with Article 295-1(2) of the Criminal Procedure Code of Ukraine (Article 295-1(2) of the Criminal Procedure Code of Ukraine); original or copy documents and other files with which the prosecutor or investigator grounds the motion proofs are not attached to the motion, as well as an extract from the Unified Register of Pre-Trial Investigations for the criminal proceedings within which the motion is filed (Article 295-1(2) of the Criminal Procedure Code of Ukraine); the investigator or prosecutor has not specified in the motion the shortest term enough for the pre-trial investigation needs (Article 295-1(2) of the Criminal Procedure Code of Ukraine).
Legal grounds for motion dismissal are as follows: the motion for the pre-trial investigation term extension is illegal and ungrounded – before informing a person of suspicion (Article 295-1(4) of the Criminal Procedure Code of Ukraine); the investigator did not prove the circumstances specified in Article 295-1(5) of the Criminal Procedure Code of Ukraine (after informing a person of suspicion).
4. Consequences of the refusal to extend the pre-trial investigation term
In case of refusal to extend the pre-trial investigation term the prosecutor must within five days carry one of the following actions prescribed by Article 283(2) of the Code (Article 297(2) of the Criminal Procedure Code (old version) / Article 295(9) of the Criminal Procedure Code or Article 295-1(7) of the Criminal Procedure Code (new version): close criminal proceedings; move for release of a person from criminal responsibility; apply to a court with an indictment act or a motion for compulsory medical or education measures.
Peculiarities: if the pre-trial investigation term expired after notification of a person of suspicion of severe or grossly severe crime against human life and health (Article 284(1)(10) of the Criminal Procedure Code of Ukraine), the prosecutor is obliged to move for release of a person from criminal responsibility or apply to a court with an indictment act or a motion for compulsory medical or education measures.
Without doubt, changes in the Criminal Procedure Code of Ukraine purported to harmonize the legislation with the standards specified in decisions of the European Court of Human Rights. However, changes do not have to be formal, they must be meaningful, fill lacunae and remove conflict of laws (still now it is not like this since the changes have spawned a number of discussions and new controversies and confusion in law enforcement practice). The Criminal Procedure Code of Ukraine “before” and “after” is not different regulatory acts, but a single legislative act which must be unified and ensure unified understanding of its provisions.
Contact the authors: Taras Bezpalyy, attorney, counsel at Legal Alliance Company, bezpalyy@l-a.com.ua, Maryna Mkrtycheva, paralegal at Legal Alliance Company, mkrtycheva@l-a.com.ua
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