Bargen attorneys recently settled a client's case on charges of taking 2 vehicles with a prior conspiracy by a group of individuals. The reason is the prosecutor's violation of the pre-trial investigation period. In this case, the prosecutor violated the period of pre-trial investigation and sent an indictment outside the period of investigation.
We had a choice - to go for an acquittal or to demand the closure of the case due to the violation of the investigation period. Exculpatory - this is a long game, it takes several years to complete all 3 instances. Plus, there were no guarantees that there would be an acquittal or that it would not be overturned by one of the courts.
Before the debate, they decided to take an easier path and filed a motion to close the criminal proceedings. The court granted the request and the case was closed.
How to close the case due to violation of the terms of the pre-trial investigation?
Pre-trial investigation is a stage of criminal proceedings that begins with the entry of information about a criminal offense into the Unified Register of Pre-trial Investigations and ends with the closing of criminal proceedings or the sending of an indictment to the court.
The pre-trial investigation must be completed within 2 months from the date of notification to a person of suspicion of committing a crime.
Criminal proceedings are closed if after notification of the person about the suspicion, the term of the pre-trial investigation has expired, defined by Article 219 of this Code, except for the case of informing a person of suspicion of committing a serious or particularly serious crime against a person's life and health.
Current judicial practice of the Supreme Court suggests that within the period of pre-trial investigation the indictment must not only be drawn up, approved and served, but also sent directly to the address of the court.
Thus, to calculate the term of the pre-trial investigation, we take the date of notification of suspicion and the date of the direct sending of the indictment to the court.
If the period between these dates exceeds the period of the pre-trial investigation (minimum 60 days or the period for which the court extended the pre-trial investigation), then there are grounds for closing the criminal proceedings by the court.
What are the consequences of closing criminal proceedings due to violation of the pre-trial investigation period?
The court issues a decision to close the criminal proceedings. At the same time, the court does not examine the evidence and does not decide on the guilt or innocence of a person.
At what stage can the court make a decision to close the proceedings due to violation of the investigation period?
This is directly provided for at the stage of the preparatory hearing, but there are no restrictions on closing the criminal proceedings during the trial. Therefore, the court can close the case at any stage, but before the court debates in the case. This is confirmed by judicial practice.
The judicial practice of calculating procedural terms was also brought to the attention of prosecutors by the Prosecutor General's Office in the information letter on legal conclusions of the Supreme Court regarding the observance of procedural terms.
Is there an exception to the category of criminal proceedings in which the court can close the case?
Yes, the court can close the case, except in cases of notification to a person of suspicion of committing a serious or particularly serious crime against a person's life and health.
Conclusions: if in your situation the terms of the pre-trial investigation have been violated, you can choose which way to proceed - close the case immediately in court or go to the end and demand an acquittal. It depends on many factors and each option has both advantages and disadvantages.