The Supreme Court has concluded on the calculation of the pre-trial investigation terms in cases of revocation of the decision to close criminal proceedings

The panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation of the Supreme Court (hereinafter – “the SC”) has rendered a significant decision in case No. 367/1335/21 dated April 3, 2023. It relates to the application of the provisions of clause 2 of para 10 of part 1 of Article 284, part 6 of Article 284, part 6 of Article 36, and Article 219 of the Criminal Procedure Code of Ukraine (hereinafter – “the CPC”).

Notably, the issue of prosecutors abusing their authority by renewing previously closed criminal proceedings is a longstanding one. Higher-level prosecutors have practiced it through the revocation of the decisions to close criminal proceedings without taking into account the expiration of the pre-trial investigation terms.

In our experience, we have dealt with the abovementioned situations and argued in court the illegality of such decisions. However, due to a lack of an express provision in the CPC and the relevant Supreme Court practice, the courts frequently turned a blind eye to the defense’s arguments.

The SC has finally clarified the procedure for applying the law provisions for determining the consequences of revoking decisions to close criminal proceedings.

Thus, if a prosecutor exercising procedural control under part 6 of Article 284 of the CPC or a higher-level prosecutor exercising authority under part 6 of Article 36 of the CPC revokes a decision to close criminal proceedings in which no one has been notified of suspicion, the period between passing the decision to close the criminal proceedings and its revocation is not included in the pre-trial investigation, provided that the decision to revoke the decision to close the criminal proceedings has been drawn up by the authorized prosecutor and within the terms under the CPC.

Revocation by the prosecutor of an investigator’s or inquiring officer`s decision to close the criminal proceedings in which no one has been notified of suspicion beyond twenty days from the date of receipt of a copy of the decision under part 6 of Article 284 of the CPC deprives the investigator with the consent of the prosecutor or the prosecutor from the right to notify a person of suspicion of committing a criminal offense. It does not apply to cases when the prosecutor revokes the decision to close criminal proceedings on the applicant’s or victim’s complaints, and the Prosecutor General, the chief prosecutor of an oblast prosecutor’s office, the chief prosecutor of a district prosecutor’s office, their first deputies and deputies revoke the decision to close criminal proceedings within the time limits under Article 219 of the CPC.

If the Prosecutor General, the chief prosecutor of an oblast prosecutor’s office, the chief prosecutor of a district prosecutor’s office, their first deputies, and deputies revoke the prosecutor’s decision to close the criminal proceedings in which the person has been notified of suspicion within the time limits set out in Article 219 of the CPC, the period between the passing of the decision to close the criminal proceedings and its revocation shall be included in the pre-trial investigation terms.

The Criminal Procedure Law does not grant the Prosecutor General, the chief prosecutor of an oblast prosecutor’s office, the chief prosecutor of a district prosecutor’s office, their first deputies, and deputies the right to revoke the prosecutor’s decision to close criminal proceedings in which a person has been notified of suspicion after the time limits outlined in Article 219 of the CPC.

In criminal proceedings in which no one has been notified of suspicion, non-compliance by the prosecutor in charge of procedural control with the provisions of part 6 of Article 284 of the CPC, and by higher-level prosecutors with the provisions of part 6 of Article 36 of the CPC results in the notification of suspicion being recognized as invalid. The criminal proceedings in such cases must be closed under clause 2 of para 10 of part 1 of Article 284 of the CPC because the pre-trial investigation terms have expired and no one has been notified of suspicion. Cases in which decisions to close criminal proceedings made by the inquiring officer, investigator, or prosecutor are revoked as a result of complaints from criminal proceedings participants, as defined in part 6 of Article 284 and para 3,4 of part 1 of Article 303 of the CPC, are exceptions.

In case the inquiring officer`s, investigator`s, or prosecutor’s decision to close criminal proceedings is revoked as a result of judicial control effort in response to complaints of criminal proceedings participants under para 3, 4 of part 1 of Article 303 of the CPC, the period between the passing of such decisions and their revocation shall not be included in the pre-trial investigation terms, both in criminal proceedings in which no person has been notified of suspicion and in proceedings in which suspicion has been notified.

Some anti-corruption organizations have opposed the aforementioned court decision. This is especially relevant to the part about including in the pre-trial investigation terms the time between the prosecutor’s decision to close the proceedings and its revocation by the Prosecutor General, the chief prosecutor of an oblast prosecutor’s office, the chief prosecutor of a district prosecutor’s office, their first deputies and deputies, if a person has been notified of suspicion. This will provide the defense with a legal basis to request that many cases be closed due to the expiration of the pre-trial investigative term provided by law.

This reason, in our judgment, is not a “formal and artificially constructed ground” for closing a criminal proceeding, because the Supreme Court’s decision complies with the general criteria of the CPC regarding pre-trial investigation time restrictions. We believe the aforementioned Supreme Court decision is rational, fair, and meant to put an end to abuses committed by higher-level prosecutor’s offices.

Kristina Kolchynska

Kristina Kolchynska

Counsel, Attorney at Law

4782

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