Does the procedural decision on the completion of the investigation stop the period of the pre-trial investigation? How to respond to manipulative attempts to interpret the norms of the criminal process?
The current Criminal Procedure Code often resembles Uncle Fyodor's famous letter to his parents from the cartoon about Prostokvashino. It is impossible to get rid of the impression that its chapters were written by separate groups of authors without proper coordination of the content among themselves.
Procedural decision on completion of the investigation
Simple questions arise:
- what are the consequences of completing the pre-trial investigation?
- what is the difference between its completion and its ending?
- when is the period of pre-trial investigation stopped or terminated?
As it turned out, the search for answers to them requires the analysis of various chapters of the Code and the practice of the Supreme Court.
Moreover, based on the results of the conducted work, it became obvious that the erroneous interpretation and application of procedural norms during the entire period of their application (which is more than 7 years).
Thus, the decision of the Supreme Court dated July 1, 2021 in case No. 752/3218/20 states:
"According to the requirements of Part 1 of Art. 290 of the Criminal Procedure Code of Ukraine, the pre-trial investigation is considered completed after notification to the defense of its completion and opening of materials. It is the application to the court with the indictment, and not only its drafting, approval or handing over to the defense party, that must be done within the framework of the pre-trial investigation period."
"Completion" or "termination" of the investigation
It should be noted that the grammatical analysis of the provisions of Chapter 24 of the Criminal Code of Ukraine "Completion of the pre-trial investigation. Extension of the period of pre-trial investigation" indicates the impossibility of equating the concepts of "completion of pre-trial investigation" and its "completion".
According to parts 2 and 3 of Article 283 of the Criminal Procedure Code of Ukraine, the following three forms of termination of the pre-trial investigation can be distinguished:
- closure of criminal proceedings;
- petitioning the court to release a person from criminal responsibility;
- appeal to the court with an indictment, a request for the application of coercive measures of a medical or educational nature.
At the same time, information about the end of the pretrial investigation is entered by the prosecutor into the Unified Register of Pretrial Investigations.
The analysis of part 2 of Article 294 of the Criminal Procedure Code of Ukraine indicates the duty of the prosecutor to extend the terms of the pre-trial investigation in case of impossibility to complete the pre-trial investigation.
Thus, the completion of the pre-trial investigation is not a form of completion of the pre-trial investigation.
However, as it follows from the systematic analysis of the norms of parts 1-3 of Article 219 of the Criminal Procedure Code of Ukraine, the terms of the pre-trial investigation are calculated until the end, not the end of the pre-trial investigation.
When does the investigation end?
In accordance with the provisions of Articles 111 and 290 of the Criminal Procedure Code of Ukraine, the notification of the completion of the pre-trial investigation can be interpreted as a procedural action by which the prosecutor or the investigator on his behalf notifies the defense party of his own procedural decision on the completion of the pre-trial investigation and granting access to the materials of the pre-trial investigation.
According to part 5 of Article 219 of the Criminal Procedure Code of Ukraine, it is the period of familiarization of the parties to the criminal proceedings with the materials of the pre-trial investigation, and not the period from the moment of notification of the completion of the pre-trial investigation, that is not included in the period of the pre-trial investigation. At the same time, according to Part 9 of Article 290 of the Criminal Procedure Code of Ukraine:
- parties to criminal proceedings are obliged to confirm in writing to the opposite party,
- and the victim, a representative of the legal entity in respect of which proceedings are being conducted, to the prosecutor
the fact of providing them with access to materials, indicating the name of such materials.
Thus, the term of the pre-trial investigation does not include the period of familiarization of the parties to the criminal proceedings (in fact, the defense party, not the victim) with the materials of the pre-trial investigation. Since:
- procedural registration of the fact of providing the defense party with access to such materials with an indication of their name,
- or registration of the defense party's refusal to confirm the granting of access to the materials of the criminal proceedings.
The above is confirmed by the rule of interpretation of legal norms Саsus omissus pro omisso habendus est. It was applied by the Supreme Court in the ruling dated 05.19.2020 in case No. 490/10025/17, where it was recognized that there was no reason to add to the text of the law a requirement not expressed in it.
Analysis of the above norm of part 5 of Article 219 of the Criminal Procedure Code of Ukraine through the prism of the question,
why the legislator did not indicate that the period of the investigation does not include the period from the moment the defense party is notified of its completion, will lead us to an obvious answer…
Practical consequences of the completion of the investigation
The same conclusions are indicated by the application of the analogy of law on the basis of the legal norms provided for in part 6 of Article 7 of the Code of Administrative Procedure of Ukraine. According to it, the analogy of the law and the analogy of law are not used to determine the grounds, limits of powers and the way of actions of state authorities and local self-government bodies. That is, the impossibility of expanding the rights and powers of state bodies beyond the limits described in the law on the basis of any analogy or extended interpretation is recognized.
But obvious conclusions are applied differently in practice. Sending a notice of completion of the pre-trial investigation by the prosecution is used as a basis for its "suspension". This allows further illegal investigation and preparation of materials to be provided to the defense.
It should be recognized that the above practice was formed with the tacit consent of the court and the defenders, in whose imagination the fight against the obvious violation of the norms of the criminal process will yield nothing but unnecessary confrontation.
At the same time, it is important at the time of receiving notification of the completion of the pre-trial investigation:
- record your desire and opportunity to start familiarization with the materials of the criminal proceedings,
- to give the investigator the impression that he really "stopped" the terms of the pre-trial investigation with the relevant notification.
Algorithm of the lawyer's actions in case of suspension of the investigation
After providing access to the materials of the criminal proceedings with the missed deadlines of the pre-trial investigation, the defense attorney must:
- record the actual date of the relevant procedural action,
- to submit a motion to close the criminal proceedings in connection with the expiration of the pre-trial investigation period.
Next, one should consistently defend one's position during the establishment of deadlines for familiarization with the materials of the criminal proceedings and the appeal of the relevant court decision (in case of adoption).
Guided by Clause 2 of Part 3 of Article 314 of the Criminal Procedure Code of Ukraine, in the preparatory court session it is necessary to file a motion to close the proceedings on the grounds provided for by Clause 10 of Part 1 of Article 284 of this Code, i.e. in connection with the expiration of the pre-trial investigation period defined by Article 219 of the Code after notification to the person on suspicion (with the exception of cases of notification to a person of suspicion of committing a serious or particularly serious crime against a person's life and health).
In order to prove the willfulness of the prosecution's failure to provide access to the materials of the criminal proceedings, it is important to request a summons for questioning as a witness of the investigator/prosecutor. Refusal to grant such a request by the court should be a signal to analyze the actions of the judge or judges for grounds for recusal.
Remember: judges do not always follow the Supreme Court's existing conclusions on the rules of application of legal norms, it is extremely difficult to create a new practice!