“In a preparatory court hearing, the court has the right to decide to return the indictment, a request for the application of coercive measures of a medical or educational nature to the prosecutor, if they do not meet the requirements of this Code”(Paragraph 3, part 3 of Article 314 of the CPC of Ukraine).
The return of the indictment is a procedural clue convenient for the defense party, which does not require significant efforts to achieve the result. It is not difficult to find shortcomings. During the analysis of the wording of the accusation, in the personal data of the accused or the victim, in the register of materials of the pre-trial investigation - the list can be continued. The defender, having chosen such way of protection, can pursue various purposes: and) closing the proceedings at the stage of pre-trial investigation; b) change in the composition of the court hearing the criminal proceedings; in) receiving "bonuses" from the center of free legal aid; d) delaying the process, etc.
From these cases, I exclude situations where the return of the indictment is due to the tactics of defense and is in favor of the client. The exception is due to the fact that it is the "negative" goals that motivate the defense counsel to find any grounds for returning the indictment. The result is a misunderstanding of the provisions of criminal procedure law and distorted case law. Let's be honest, it's also easier for a judge to send a case to the prosecutor and avoid overburdening - next time the case will be assigned to another judge.
In the article I offer an overview of the TOP-5 erroneous grounds for returning the indictment to the prosecutor, which "pass" in court.
1. Incorrect wording of the accusation. "Suspected" instead of "accused" is indicated. A person who has committed a criminal offense receives a procedural document - an indictment. The content of the indictment and the wording of the indictment, in particular, eliminates any doubts about the status of the person who received the indictment. A person cannot be considered a suspect solely on the grounds that the word "suspect" is contained in the indictment. And the main question is - how does this prevent the court from making a lawful and reasonable decision? Finally, the Supreme Court of Ukraine put an end to this issue. The Resolution of the Supreme Court of Ukraine of 24.11.2016 №5-328x16 states that the absence of an indication in the indictment on charges of committing a criminal offense is not a significant violation of the requirements of the criminal procedure law, which prevented lower courts from making legal and reasonable decisions.
2. Presence of shortcomings in the register of materials of pre-trial investigation. In accordance with paragraph 3 of Part 3 of Art. 314 of the CPC of Ukraine, the only procedural document to be examined by the court during the preparatory hearing is the indictment. Appendices to the indictment, defined in Part 4 of Art. 291 of the CPC of Ukraine, are not and cannot be the subject of judicial control during the preparatory hearing. The Code of Criminal Procedure does not identify deficiencies in the register of pre-trial investigation materials as a basis for returning the indictment to the prosecutor. In addition, the defense will greatly strengthen its position when, during the trial, it declares the inadmissibility of evidence that is not listed in the register of pre-trial investigation materials.
3. Lack of the seal of the prosecutor's office on the indictment. In Part 3 of Art. 291 of the CPC of Ukraine contains requirements for the certification of an indictment only by signing by the investigator and the prosecutor who approved it, or only by the prosecutor, if he drew it up independently. No additional requirements for the indictment in Art. 291 of the CPC of Ukraine is not specified. The legal position on the need to certify an indictment is usually based on the need to comply with the requirements for the details of an official document. There is also a reference to the bylaws that define the rules of record keeping and document management. This approach contradicts Art. 1 of the CPC of Ukraine - the procedure of criminal proceedings on the territory of Ukraine is determined only by the Constitution of Ukraine, international treaties, this Code and other laws of Ukraine. Thus, reference to any by-laws or organizational and administrative acts is illegal.
4. Absence in the indictment of the amount of damage caused by a criminal offense against the life and health of a person. The indictment must contain the amount of damage caused by the criminal offense (paragraph 7 of Part 2 of Article 291 of the CPC of Ukraine). According to Part 1 of Art. 55 of the CPC of Ukraine, the victim in criminal proceedings may be a natural person who has suffered moral, physical or property damage by a criminal offense, as well as a legal entity who has suffered property damage by a criminal offense. The material equivalent of the physical damage caused cannot be determined. In this case, the physical damage is indicated in accordance with the conclusion of the forensic examination. Which party's rights will be violated without such wording? Another example of a literal interpretation that is meaningless. Thus, the absence in the indictment of the amount of damage caused by a criminal offense against the life and health of a person cannot be an obstacle to the appointment of a trial.
5. The personal data of the accused or victim are incorrectly indicated. The indictment must contain personal information of each accused and victim (paragraph 2.3, part 2 of Article 291 of the CPC of Ukraine). During the establishment of personal data in the preparatory court session, the inconsistency of the information specified in the indictment may become clear. Errors of surname, name, patronymic, date and place of birth, place of residence, citizenship are not an obstacle to the appointment of a trial. First, the rights of participants in criminal proceedings are not violated, if, for example, instead of the actual date of birth "10.05.1960" the indictment states the date "born on October 25, 1975". Such discrepancy may be clarified during the trial. Secondly, this circumstance does not prevent the court from making lawful and reasonable decisions.
Conclusions. Thus, to determine the validity of the grounds for the return of the indictment, formulate several questions: "Does this shortcoming violate the law of the parties to the criminal proceedings?", "Can the shortcoming be eliminated during the trial?", "Does this shortcoming prevent a lawful and reasonable decision time of trial? ”. I want legal and reasonable decisions!
