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15.08.2022

Pre-trial investigation during wartime: what bill 7370 proposes

After the start of the war, the legislator made appropriate changes to the criminal procedural legislation, which are extremely necessary in wartime conditions, especially in the regions of active hostilities.

However, the practice does not stand still and the results obtained as a result of the changes made require further improvement. Draft law 7370 of May 10, 2022, which has already been adopted by the Verkhovna Rada of Ukraine and sent to the President for signature on August 1, 2022, was such a logical continuation of the criminal procedural changes.

The main changes contained in draft law 7370 were the following norms.

Regarding the closing of criminal proceedings

According to the amendments made to clause 5 of Art. 284 of the Criminal Procedure Code of Ukraine now contains grounds for closing criminal proceedings in the event of the death of a suspect, an accused person, as well as a person in respect of whom sufficient evidence has been collected to serve a notice of suspicion, but not done in connection with his death. The prosecutor and the court have the right to close criminal proceedings on this basis. At the same time, according to the new part 10 of this article, the duty of the prosecutor and the judge, before making such a decision/resolution, is to send one of the close relatives and/or the deceased's lawyer a written notice about the possibility of closing the criminal proceedings in connection with the death, with an explanation of the law on a motion to disagree with the closure.

We note right away that the legislators have not determined the exact term – how many days before the closing such a notification is sent. However, it has been established that the criminal proceedings are closed if within 10 days a request for disagreement with the closure is not received, regardless of the actual date of receipt of such a notification by the relatives or the defense attorney. Also, prosecutors and judges are not obliged to attach to the case a confirmation of receipt of such a notification by a relative or a defense attorney.

Regarding detention

In the new Part 4 Art. 331 of the Criminal Code of Ukraine stipulates that after the expiration of the decision of the investigating judge on detention and in the case of impossibility of consideration by the court of the request for the extension of this period in the conditions of martial law, the extension of such period shall be carried out in accordance with the procedure established by Art. 615 of the CCP of Ukraine.

According to the amendments to the Criminal Procedure Code of Ukraine, which were implemented in March 2022, the possibility of detaining a person for a period of up to 270 hours has been extended, which, in our opinion, is too much for a preventive measure even in wartime. According to the new norms of draft law 7370, such a deficiency has been eliminated and the term of detention without a decision of the investigating judge, provided for in Art. 211 of the Criminal Code of Ukraine, up to 72 hours. In addition, in the amendments to Art. 615 of the CCP provided that in the absence of an objective physical possibility under martial law to deliver a person within 72 hours to the investigating judge for the selection of a preventive measure, consideration of this petition is carried out remotely. If it is impossible to provide a remote examination by the investigating judge, then the person is immediately released. We would like to remind that the heads of the prosecutor's office were deprived of the right to extend the validity period of the decision of the investigating judge on detention and to choose a preventive measure in general, leaving other powers of the investigating judge in case the investigating judge is not able to fulfill them.

In general, all the introduced changes can be regarded as positive and those that gradually return criminal justice to the pre-war state as far as possible under today's conditions, however, the exception was the automatic extension of the term of detention at the stage of the preparatory court session. If this rule is adopted, the term of detention will be increased for the impossibility of holding a preparatory court session to 120 days, that is, it will be twice as long as was determined by the rule earlier.

Regarding the examination of the person and the examination of the corpse, according to the main changes, an additional examination during the examination is provided not only of the body of the person, but also of the clothes, which is appropriate only in the case of the examination immediately after the crime has been committed. And also the right to issue a decision on investigation was given to the inquirer and investigator instead of the prosecutor, which will significantly save time and resources during the pre-trial investigation. However, according to this resolution, the examination will be conducted voluntarily, and in the case of a person's refusal to undergo an examination, a prosecutor's decision is still required. Regarding the examination and release of the corpse, the legislator also gave new powers to the investigators together with the prosecutors to issue a permit for the release of the corpse after the examination, if the prosecutor is unable to issue such a permit.

Having analyzed the main changes of draft law 7370, in summary, we note that they relate to the terms of detention without a decision of the investigating judge, powers to choose a preventive measure in conditions of martial law, and fixing some investigative actions. The changes are generally positive and necessary, except for increasing the term of detention at the stage of the preparatory court session.

The difficult military situation in the country requires constant changes in all branches of the judiciary in order to ensure the smooth and efficient work of courts and law enforcement agencies, so we expect other changes in the criminal procedural legislation in the near future.

Author: Viktoriya Horozhanova, lawyer

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