Due to the high workload on investigators and prosecutors, it is easy to find shortcomings and procedural abuses in any criminal proceeding. In our case, such an abuse is an unjustified suspension of the pre-trial investigation. Recent amendments to the Criminal Procedure Code of Ukraine (hereinafter - the CPC of Ukraine) allow the use of such abuses to cancel the notice of suspicion. It should be noted at once that it is possible to cancel the suspicion in criminal proceedings initiated on March 16, 2018. It is necessary to react quickly until the investigator sends the indictment to court.
According to paragraph 2, part 1 of Article 219 of the CPC of Ukraine, the pre-trial investigation must be completed within two months from the date of notification to the person of suspicion of committing a crime. The prosecution always monitors compliance with these deadlines, so if, after notifying the person of suspicion, he disappears or does not get in touch, the investigator, in agreement with the prosecutor, decides to suspend the investigation. When the suspect appears, the investigator resumes the pre-trial investigation. This simple trick with a stop allows the investigator to meet the statutory 2 months.
The CPC of Ukraine determines the grounds for suspending the pre-trial investigation: the suspect has contracted a serious illness that prevents him from participating in criminal proceedings, provided that this is confirmed by a relevant medical opinion; wanted by the suspect; the investigating judge denied the request for a special pre-trial investigation; there is a need to perform procedural actions within the framework of international cooperation (Part 1 of Article 280 of the CPC of Ukraine).
From this list of grounds, investigators often suspend the pre-trial investigation due to the suspect's illness or his search, without any objective grounds. In practice, the suspect and his lawyer learn about the suspension while reviewing the materials of the criminal proceedings, as the investigator and the prosecutor do not send the decision by mail.
Therefore, the first action is to appeal the decision to suspend to the investigating judge.
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We are appealing the decision to suspend the pre-trial investigation
According to Part 4 of Article 280 of the CPC of Ukraine, a copy of the decision to suspend the pre-trial investigation is sent to the defense, the victim, a representative of the legal entity in respect of which the proceedings are conducted, who have the right to appeal to the investigating judge. This right is also enshrined in paragraph 2, part 1 of Article 303 of the CPC of Ukraine, which allows to appeal the decision of the investigator, prosecutor to suspend the pre-trial investigation - the victim, his representative or legal representative, suspect, his lawyer or legal representative, representative of a legal entity. which is being conducted.
The term from the date of the decision to suspend the criminal proceedings to the date of its cancellation by the investigating judge is included in the 2-month period allotted to the investigator to complete the pre-trial investigation (Part 3 of Article 219 of the CPC of Ukraine). If the complaint is satisfied, the period of time we need (several days, a week, a month, etc.) appears, which allows us to proceed to the next stage - the appeal of the notice of suspicion.
We are appealing the report of suspicion
The right to appeal the notice of suspicion is granted to the suspect, his defense counsel or legal representative in case of expiration of two months from the date of notification of the person suspected of committing a crime, but not later than closing the criminal proceedings or appeal to the court .303 of the Criminal Procedure Code of Ukraine).
For example, a person was reported on suspicion under Part 1 of Article 212 of the Criminal Code of Ukraine (evasion of taxes, fees, other mandatory payments). While reviewing the materials of the criminal proceedings, the suspect learns about the unjustified suspension of the pre-trial investigation for 30 days and appeals the decision to the investigating judge. The investigating judge cancels the decision, as a result 30 days are credited within 2 months. If, after 30 days, the total period of investigation on the date of acquaintance exceeds 2 months, all further investigative and procedural actions are illegal, and the suspect has the right to appeal the notice of suspicion to the investigating judge.
When appealing a notice of suspicion, it is necessary to prove to the investigating judge that the investigator has violated the terms of the pre-trial investigation. To do this, you need to write a complaint against the notice of suspicion, which must include your own notice of suspicion, the decision to suspend the pre-trial investigation and the decision of the investigating judge to revoke the decision to suspend the pre-trial investigation. The complaint must include calculations of the deadlines, request that the investigator / prosecutor be obliged to revoke the notice of suspicion and enter the relevant information in the Unified Register of Pre-trial Investigations. An extract from the ERDR generated after fulfilling such requirements will be proof that the person does not have the status of a suspect.
Important point: it is possible to appeal the notification of the investigator, the prosecutor about the suspicion not later than the closing of the criminal proceedings by the prosecutor or the appeal to the court with an indictment. That is, you will not be able to appeal the notice of suspicion after the pre-trial investigation. In case the investigator violates the terms of the pre-trial investigation, it is not possible to delay, it is necessary to apply to the investigating judge.
Judicial practice
Currently, the Unified State Register of Judgments contains about 100 rulings of investigating judges on complaints of lawyers and suspects about the cancellation of the notice of suspicion. In all cases, the complaints relate to criminal proceedings initiated before March 16, 2018. I understand the wishes of lawyers and their clients, but this position contradicts paragraph 4 of paragraph 2 of the Final Provisions of the Law of Ukraine №2147-VIII of 03.10.2017, which allows to challenge suspicion only in criminal proceedings initiated after 16.03.2018.
For example, the investigating judge of the Shevchenkivsky District Court of Kyiv by decision of 23.03.2018 in the case №761 / 9804/18 refused to open proceedings on the complaint of the suspect about the obligations of the investigator or prosecutor in the criminal proceedings №42016111200000878 of 24.11.2016 to take action to exclude from ERDR information on reports of suspicion of committing a number of tax and official criminal offenses. At the time of entering the information into the ERDR, there was an edition of the CPC of Ukraine, which did not provide for the possibility of appealing the notice of suspicion, so the complaint was filed against the decision of the investigator, prosecutor, which is not subject to appeal.
Given the extension of the right to appeal suspicion only to cases initiated after March 16, 2018, the case law has simply not yet formed. Therefore, we will wait for the first decisions of the investigating judges to cancel the notice of suspicion, possibly in a few months.
The article was published in "Yuridichna Gazeta" №15 dated April 10, 2018
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