.jpg)
During the webinar for lawyers at the Higher School of Advocacy on the topic: "Appeal of non-observance of reasonable terms of pre-trial investigation (Articles 308, 303 of the Criminal Procedure Code of Ukraine)", lecturer Iryna Glovyuk – honored lawyer of Ukraine, lawyer, doctor of legal sciences, professor, member of the NKR at the Supreme Court, the scientific advisor of the "Barristers" Bar association spoke about: means of ensuring the reasonableness of pre-trial investigation terms, a complaint under Art. 308 of the Code of Civil Procedure, actions in the event that an answer is received in the form of a letter, on how to demarcate clause 1 of Art. 303 of the Criminal Procedure Code and clause 9-1 part 1 of Article 303 of the CCP.
One of the means of ensuring the reasonableness of pre-trial investigation terms is the appeal of non-compliance with these terms.
The legislator provided for a number of mechanisms that should ensure reasonable terms of the pre-trial investigation.
- Petition to establish procedural terms (Articles 28, 114 of the Criminal Procedure Code of Ukraine);
- Complaint under Art. 308 of the Criminal Procedure Code to the prosecutor of the highest level;
- Appeal of the refusal to satisfy the complaint by the prosecutor of the highest level for non-observance of reasonable terms of the order of Article 9-1. 303 of the CCP;
- Petition of another person, whose rights or legal interests are limited during the pre-trial investigation, or his representative to the investigating judge to close the criminal proceedings, if the period of the pre-trial investigation has expired from the moment of entering information about the criminal offense into the Unified Register of Pre-trial Investigations until the day the person is notified of the suspicion
These mechanisms are used in practice, and the Criminal Court of Cassation as part of the Supreme Court commented on a number of them. In particular, there was a question regarding the application of the Criminal Procedure Law. Can the rulings of investigative judges on setting the deadline for the end of the pre-trial investigation be reviewed in appeal proceedings.
Regarding the setting of time limits, this mechanism was used even to set a time limit for the submission of written evidence in criminal proceedings.
Arguments given in the cassation complaint, that the term of familiarization with the materials of the pre-trial investigation (opening of materials in accordance with Article 290 of the Code of Criminal Procedure) includes the drawing up of the indictment and its delivery, and therefore the term of the pre-trial investigation, which was interrupted on April 10, 2020 due to the opening to the defense, the materials of the pre-trial investigation, which were renewed on July 24, 2020, and the prosecution had time until the end of the pre-trial investigation, during which it could apply to the court with an indictment, are groundless.
It remains a problematic issue, in relation to which moment to calculate when the non-inclusion of the period of familiarization with the materials in the period of the pre-trial investigation begins.
The Supreme Court indicated that the fact of completion, as well as the fact of communication of this information to the defense parties, must be properly notified. And the period of pre-trial investigation does not include the entire period of time from the moment of sending or delivering such a notice until the end of the party's familiarization with the materials of the pre-trial investigation.
The formal presence in the materials of the criminal proceedings of the request of the prosecutor,
adopted in accordance with Part 6 of Art. 290 of the Code of Criminal Procedure, does not cause the suspension of the period of the pre-trial investigation in the absence of evidence of its referral or handing over to the defense.
What to do when the answer comes in the form of a letter?
When the complaint under Art. 308 of the Criminal Procedure Code of Ukraine, the higher-level prosecutor sends a response to the complainant in the form of a letter, such an action should be identified precisely as inaction and appealed in accordance with clause 1, part 1, article 303 of the Criminal Procedure Code of Ukraine, since the decision on the complaint in the procedural form specified by law was not made within the three-day period, which indicates precisely the inactivity of the higher-level prosecutor, since he did not perform the procedural action that he was obliged to perform within the period determined by the Criminal Procedure Code of Ukraine.
There are approaches that if there is no resolution – there is no appeal under Art. 303 of the CCP
Judicial practice often indicates that a resolution is not needed, but if there is none, then Art. 303 of the CPC is not applicable.
There is another approach, when some wordings of decisions of investigative judges indicate that despite the fact that a letter was sent based on the results of the consideration of the resolution of the complaint, but the investigative judges in fact still consider the relevant complaints.
Why is it important to present the legal grounds for the complaint in great detail when addressing the investigating judge?
So that, in the case of an appeal of inaction in the form of a letter, there is no risk that the investigating judge relies on paragraph 9-1 in the aspect of appeal of the prosecutor's decision. The complaint must be clearly written so that the subject of the appeal is clearly understood at the stage of resolving the issue of opening a complaint proceeding. Since there is such an approach in judicial practice that the letter is not considered as a decision.
Another moment when clause 9-1 is not applicable. In the event that the complaint was not considered at all and there is no reaction to it.
How, when preparing a complaint, to delimit clause 1 of Art. 303 and clause 9-1 of article 303.
According to p. 9-1 part 1 of Art. 303 of the Criminal Procedure Code, the investigating judge determines whether the non-observance of the reasonableness of the pre-trial investigation period under Art. 308 of the CPC of Ukraine.
- If it is established that the complaint was sent to a higher-level prosecutor, the investigating judge must establish whether the complainant received an answer, and if so, in what form.
- If this answer is received in the form of a resolution, then the investigating judge must further establish whether the higher-level prosecutor fulfilled the obligation to properly consider and resolve the complaint and, in particular, whether the investigator, inquirer and prosecutor complied with the requirements of the reasonableness of the criminal proceedings during the pre-trial investigation, with taking into account the criteria of reasonableness of terms developed in the practice of the ECtHR.
- If the complainant did not receive an answer or received it in the form of a letter, and not in the form of a resolution, then the complaint in accordance with clause 9-1 part 1 of Article 303 of the Criminal Procedure Code of Ukraine is not subject to satisfaction (or there is a refusal to open proceedings on a complaint), since the investigating judge cannot verify the essence of the decision of a higher-level prosecutor, which does not exist.
According to clause 1 part 1 of Art. 303 of the Criminal Procedure Code, it must be established whether the non-observance of the reasonableness of the pre-trial investigation period under Art. 308 of the CPC of Ukraine.
In the absence of such an appeal, the investigating judge must refuse to open the proceedings on the complaint or, if it is opened, to satisfy the complaint.
In the case of ascertaining the inaction of the prosecutor of the highest level, this is sufficient to satisfy the complaint.
In a situation where a resolution was received in response to a complaint under Article 308 or another stage was passed, where the higher-level prosecutor was obliged to consider in accordance with Article 308 and issue a resolution, then, accordingly, another procedural appeal mechanism must be applied. This is a complaint against the decision of the higher-level prosecutor to reject the complaint.
What circumstances must be established by the investigating judge?
Two requests are most common:
- annulment of the resolution
- obligation to reconsider the complaint
Is it appropriate to ask to oblige the prosecutor of the highest level to establish a reasonable term for committing one of the actions provided for in Part 2 of Article 283 of the Criminal Procedure Code?
The complainant is not limited in the indication in the complaint under Art. 308 of the Criminal Procedure Code of Ukraine of those means which, in his opinion, should be used by the prosecutor of the highest level to ensure the reasonableness of the terms of the pre-trial investigation, taking into account the provisions of Art. 308 of the Criminal Procedure Code of Ukraine and Part 1 of Art. 28 of the Criminal Procedure Code of Ukraine, which provides that the prosecutor ensures the conduct of the pre-trial investigation within a reasonable time.
But these requirements should initially be in the complaint to the prosecutor of the highest level.
If the question was raised in the complaint, and it was refused, this question can be resolved by the investigative judge. But we have to understand that this issue, if it will be resolved, but without an indication of which procedural decision the prosecutor, investigator, investigator should make.
If such a requirement was not formulated in the complaint to the prosecutor of a higher level, then there are no grounds for its consideration and satisfaction by the investigating judge, since there is a departure from the scope of the appeal.