During the webinar at the Higher School of Advocacy on the topic: "Return of the indictment: case law", lecturer Iryna Glowyuk – Honored Lawyer of Ukraine, lawyer, doctor of legal sciences, professor, member of the NKR at the Supreme Court, scientific advisor of the Barristers Association , spoke about the general issues of the return of the indictment, the practice of the Criminal Procedure Code of the Supreme Court, the doctrine regarding the grounds for the return of the indictment, the expiration of the terms of the pre-trial investigation and the return of the indictment.
The Code of Criminal Procedure on the return of the indictment, as well as the request for the application of coercive measures of a medical or educational nature, is concise. That is, the indictment is returned if it does not meet the requirements of the Criminal Procedure Code.
The Higher Specialized Court of Ukraine for consideration of civil and criminal cases clarified in its information letter that in order to return the indictment must meet the requirements of Art. 291, 292 of the CPC:
- if the documents contain provisions that contradict each other;
- the documents contain an inadmissible naturalization description of the crime;
- they are not signed by the investigator (except when the prosecutor made them independently) or approved by the prosecutor;
- there are no legal supplements to them
This list is not exhaustive.
KKS noted that the courts do not have the authority to check the correctness of the scope of the indictment determined by the prosecutor before passing a verdict or other final decision in criminal proceedings and do not have the authority to somehow oblige the prosecutor to change this scope, including to increase it.
Or do not have the authority to return the indictment in connection with the incorrect qualification of this charge, since determining the scope of the charge is the exclusive competence of the prosecutor.
Analysis of judicial practice during the period of validity of the code shows that the grounds for return in judicial practice are:
- failure to specify or incorrect specification of personal data of the accused;
- failure to deliver a copy of the indictment and its appendices to the defense party for receipt in accordance with the procedure established by law;
- the indictment is not sealed;
- the indictment was not handed over by the prosecutor;
- incompleteness of the register of pre-trial investigation materials (the practice is the opposite);
- the indictment is not signed or approved by the prosecutor;
- the indictment contains an allegation that the accused has committed a criminal offense (a violation of the presumption of innocence);
- a civil lawsuit is not attached to the indictment;
- the indictment did not include an explanation of the right to a jury trial to the person accused of committing a crime punishable by life imprisonment;
- the indictment does not contain information on circumstances that aggravate or mitigate the punishment;
- the indictment does not contain information on the amount of expenses for attracting an expert;
- lack of date of commission of the criminal offense;
- lack of wording of the accusation;
- unspecified accusation;
- inconsistent and imprecise presentation of the plot and wording of the accusation;
- incorrect legal qualification or lack of legal qualification;
There is an approach to assessing the degree of influence of the shortcomings of the indictment on whether it is possible to assign it to trial.
- Only non-compliance with the above-mentioned requirements of Part 2 of Art. 291 of the Criminal Procedure Code of Ukraine in accordance with clause 3, part 3 of Article 314 of the Criminal Code of Ukraine, is the basis for returning the indictment to the prosecutor.
- Any other comments to the indictment must receive an appropriate response from the court during the trial and are not grounds for returning the indictment to the prosecutor.
- The return of the indictment to the prosecutor does not imply the formal non-compliance of such an act with the requirements of the law, but the presence of such deficiencies in it that objectively prevent the court from ordering a trial.
There is a position that the court should check only the fact of the existence of the register, its absence is a reason for returning the act, but deficiencies in the register itself, which is available, are not a reason for return.
With regard to the prosecution, if the return with an instruction on qualification, even if it does not correspond to the circumstances of the criminal proceedings, is an interference with the formulation of the charge by the court. And it can be considered as a manifestation of the court's accusatory bias.
In addition, based on the analysis of practice, violations that can be considered in accordance with Art. 291 in terms of the indictment. These are those that affect the content and form of the act itself and violations that affect the content and presence of appendices to the indictment.
And there are 3 approaches to assessing the impact of the shortcomings of the indictment on its recognition as subject to return to the prosecutor:
- failure to comply with any imperative requirements of the Criminal Procedure Code regarding the content of the indictment and its integral part – the appendices (including the information they must contain) is grounds for recognizing the indictment as not meeting the requirements of the Criminal Procedure Code of Ukraine.
- deficiencies in the attachments cannot be grounds for returning the indictment to the prosecutor
- not every defect in the appendices to the indictment is grounds for return, the possibility of their elimination during the trial must be evaluated.
Expiration of the pre-trial investigation and return of the indictment
- returning the indictment is impossible and pointless (that the term cannot be renewed).
- the court has the power only to close criminal proceedings,
- can make such decisions on its own initiative,
- Art. 314 of the Criminal Code of Ukraine does not indicate the need for parties to initiate a final procedural decision.