The issue of the period of preliminary investigation in criminal proceedings, its determination, progress, beginning, termination, completion and ending, is not new. It seems that everything is clear. However, it is not. Considering the provisions of the current Criminal Procedural Code, you may be surprised. In practice, the investigation period is often regarded, interpreted and applied in different ways.
It especially concerns the prosecution. At the same time, if you do not comply with or do not accurately determine the investigation period, it could lead to the specific and important consequences, which inevitably affect the result of preliminary investigation. For example, I dealt with many situations when the investigation period should be determined through the thorough and systematic analysis of the provisions of the current Criminal Procedural Code of Ukraine.
The notion of the period of preliminary investigation and the rules for its determination is provided by Article 219 of the Criminal Procedural Code.
Therefore, the preliminary investigation in the criminal proceeding influences on the total period of the preliminary investigation, which begins from the moment (day) of entering the Single Register of the Preliminary Investigation and ends at the moment (day) when one of three formats of the preliminary investigation is completed, which are determined by Article 283 of the Criminal Procedural Code.
There are two subtypes of the total investigation period, which depend on whether there is a notice of suspicion of a criminal offence in the criminal proceeding. If there is no such a notice, then the period of the preliminary investigation shall be determined by the rules of the total period provided by Article 219 (Part 1) of the Criminal Procedural Code, and it shall begin from the moment of entering the Single Register of Preliminary Investigation.
As a rule, such criminal proceeding shall be deemed completed only when it is closed. If an individual receives a notice of suspicion of a criminal offence, the rules for determination of the period of the preliminary investigation are regulated by Article 219 (Part 1, Paragraph 3) of the Criminal Procedural Code. In such a case, the preliminary investigation begins when an individual receives a notice of suspicion of a criminal offence. Therefore, both subtypes are limited in time, and if they would not be complied with, the criminal proceedings should be closed. Article 219 of the Criminal Procedural Code also provides for the rules for determination of the investigation period if the preliminary investigation was stopped: the investigation could not last from the moment when the order to stop it was issued until the moment when the order to reopen it will be issued, apart from the cases when the order to stop it was being cancelled by the investigating judge. It is also determined that the period of the preliminary investigation can be extended in the manner provided by Chapter 24 (Paragraph 4) of the Criminal Procedural Code and within the limits provided by Article 219 of the above Code and the deadline of such extension, which depends on the degree of the offence. Besides, Article 219 of the Criminal Procedural Code provides that the period when the parties of the criminal proceeding examine the case files in the manner prescribed by Article 290 of the above Code, is not included in the period provided by this Article.
However, if the parties examine the case files, it shall not be deemed as stop of the preliminary investigation. Firstly, it seems that the legislator did not determine the investigation period when the case files are being examined. In my opinion, it is logical, since the preliminary investigation is considered to be completed when you examine the case files, and there is no matter which investigative measures are carried out. Therefore, the investigation should not continue, as well as the preliminary investigation was stopped.
We should focus on the notion of “the completion of the preliminary investigation”. The notion of “completion” and “the end of the preliminary investigation” are widely used in the Criminal Procedural Code.
It seems to be synonyms, but not in the scope of criminal proceeding. The notions are completely different and have different legal ramifications. The common mistake of the prosecution is that the notion and fact of completion of preliminary investigation it relates to the providing access to the case files, which is regulated by Article 290 of the Criminal Procedural Code. However, such an approach is wrong.
I admit that Article 290 (Part 1) of the Criminal Procedural Code provides for the duty of the Prosecutor or Investigating Officer to notify the defence about the completion of the preliminary investigation and provide access to the case files. However, it is not defined by the Article above that a fact of such notification determines that the preliminary investigation was completed. In general, the above Article is not about the completion of preliminary investigation. It only regulates the procedure for providing asses to the case files by parties, which could later be used at the hearing as evidence. No more and no less. Article 110 (Part 4) of the above Code clearly and controversially determines the moment when the preliminary investigation is completed.
The above Article provides that the bill of indictment is a procedural judgment, where the prosecutor shall prosecute an individual of the criminal offence and which is the last stage of the preliminary investigation. Considering Article 290 (Part 1) and Article 110 (Part 4) of the Criminal Procedural Code, it becomes clear that the prosecutor draws up the bill of indictment after examining the supporting evidence and found them sufficient to draw up such a document, thereby completing the preliminary investigation. Then the prosecutor notifies the defence about the completion of the preliminary investigation and provides him access to the case files. I consider that such a procedural actions should be performed in that way.
So, the preliminary investigation is completed, the investigative measures are not carried out, and the defence can examine the case files. It is logical that when the defence is examining the case files, the preliminary investigation is terminated, but is not finally completed.
The moment of completion of the preliminary investigation is connected with the moment when the prosecutor accuses an individual of a criminal offence through the execution of a special type of a procedural decision, which is the bill of indictment. Also, one of the formats of completion of the preliminary investigation is connected with the bill of indictment, in particular, with the moment (day) when the prosecutor went to the court with the bill of indictment.
The question is if the prosecutor goes to a court with a notice of suspicious, should it considered to be the final stage of the preliminary investigation. I think no and I will later explain why. At the preliminary case hearing, the rules and procedure of which are determined by Article 314 of the Criminal Procedural Code, it is provided that the court has the right to return the bill of indictment to the prosecutor if it does not comply with the requirements of the present Code.
It should be noted that the court shall make such a decision only if the bill of indictment does not comply with the requirements of the above Code. Therefore, another common mistake of the prosecution is that they consider that the bill of indictment must comply with the requirements of Article 291 of the Criminal Procedural Code. However, the requirements for the bill of indictment are much more extensive and they are covered by the whole Code, rather than its separate provisions (the content, structure and the drafting date). In other words, if the bill of indictment was drawn up after the expiration of the preliminary investigation, it is obvious that it does not comply with the requirements of Article 219 and Article 283 of the above Code. Considering the bill of indictment and the above Code, you can find that the bill of indictment may not comply with lots of requirements. What could happen if a court at the preliminary case hearing found that the bill of indictment does not comply with the requirements of the Criminal Procedural Code and shall be returned to the prosecutor?
The current practice is formed in such a way that the preliminary investigation seems to fall into the strange procedural vacuum. The prosecutor considers that the preliminary investigation has been completed and he has no right to continue it, perform any actions, make additional or new findings, collect evidence etc. In his opinion, the only thing he can do is to correct the returned bill of indictment and go to the court again.
It usually happens because of the incoherent paragraphs and the content of some sentences. At the same time, I want to note that the Criminal Procedural Code does not provide for the repeated prosecutor’s go to the court with a bill of indictment. The same bill of indictment, which is sent to the court two or three times, does not provide information about the previous unsuccessful attempts. The Single Register of the Preliminary Investigation does not provide such information, too.
What could be done if it is impossible to correct the bill of indictment? If you missed the deadline of the preliminary investigation? It is impossible to extend the investigation period after its expiration. Especially, it is impossible to update it. Could the prosecutor decide to go to the court with another bill of indictment? Could he close the criminal proceedings? Could he continue the preliminary investigation if the bill of indictment was returned because of the failure to define the factual background? It seems that such questions do not have a clear answers. Still, it may be caused by the gaps in the Criminal Procedural Code. However, I am convinced that the prosecutor is not only able but also must do all of the above. When the court decides to return the bill of indictment to the prosecutor, then such a decision is based upon the fact that the bill of indictment does not comply with requirements of the Criminal Procedural Code. In other words, it does not comply with requirements of law.
Therefore, it is illegal and the court somehow cancels and invalidates the bill of indictment. If the bill of indictment is illegal and invalid, then the relevant legal facts are also invalid (the fact of completion and end of the preliminary investigation). If the preliminary investigation is not considered to be completed according to the law, there are not any barriers to continue it.
Such statements would not seem impossible if to compare them with other formats of end of the preliminary investigation. No wonder that the prosecutor, including the senior prosecutors or the court, has a right to invalidate the decision to close the proceeding. Therefore, the preliminary investigation is still in force. Besides, the preliminary investigation is still in force after the motion on the absolute discharge from the criminal liability was dismissed by the court. That is why – “The show must go on”! When the prosecutor goes to the court with a bill of indictment and a motion to take the medical or educational measures of constraint, it is not considered to be the completion of the preliminary investigation.
At least until the court sets a trial upon the bill of indictment and a motion to take the medical or educational measures of constraint. Otherwise, the preliminary investigation should not be stopped. However, there is a significant gap in the laws of Ukraine.
Therefore, the Criminal Procedural Code requires the provision, which would regulate the period of a preliminary investigation if the bill of indictment was returned to the prosecutor. We realize that the preliminary investigation shall be completed when the prosecutor goes to the court with the bill of indictment. However, it is not prescribed by the law when the preliminary investigation is reopened. In my opinion, it may be reopened in the following ways: when the court decided to return the bill of indictment to the prosecutor, or the appellate court upheld such decision, or the court returned the bill of indictment to the prosecutor.
Although I am an attorney, I probably should rely upon the way, which is the most appropriate for the defence, but I still prefer the third one, since it would enable the prosecutor to appeal the first judgment and to submit a motion to extend the period of the preliminary investigation if it would expire soon. Such changes are required by the Criminal Procedural Code, since the approach specified in the article and considering the above provisions would improve the quality of the preliminary investigation and its results.
Andrii Ivanets
Attorney, Head of Criminal Law and Procedure Managing Partner
for “Yurydychna Hazeta” - https://bit.ly/2TrhBlO
