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CRIMINAL PROCEEDINGS: when and what for should the terms of investigation be checked

authors: Alexander Minin, Antonina Gorodetska

25 August, 2020 Exclusive

Recently the pre-trial investigation in criminal proceedings goes through certain “activity renaissance”: so-called “demands” on provision of documents and information under Article 93 of the Criminal Procedural Code of Ukraine, court rulings on temporary access and even searches, execution of such court rulings, summons for interrogation, security measures etc.

It seems like tax officers have nothing to do since almost half a year there is a moratorium on all basic audits implemented due to the quarantine. Therefore, the number of requests with references to the Tax Code of Ukraine has been increased, as well as activity from the part of the investigative bodies. Moreover, even certain “cold” proceedings have been used as a ground for sending requests.

Such burst of activity has been observed not only in the tax aspect but among other “white collar crimes” being investigated by different authorities.

As is commonly known it is a rather simple affair to “open a criminal case” on paper. And this is to be done when necessary.

Does it mean that the case may be under investigation till hell freezes over, and all this time there would be a ground for potential investigative actions in this case? Or the terms are limited with a general note on compliance with “reasonable terms” or otherwise?

May the prosecution rely on evidence gathered beyond the specified terms?

What measures may be taken if the investigative terms are expired, but investigative actions are not, e.g. summons for interrogation?

These and certain other issues are to be reviewed in this newsletter accompanied by practical tips for those to whom it may concern.

1.

The issue of terms in the criminal procedure is a substantial component of guarantees of individual rights. In particular, it concerns terms of pre-trial investigation.

International treaties do not provide any limitations as regard the specified terms, however they are clearly defined and stipulated by the national law.

Thus, pursuant to Article 6 of Convention for the Protection of Human Rights and Fundamental Freedoms as of 1950 (the “Convention”) in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time.

Para. 3 of Article 14 of the International Covenant on Civil and Political Rights as of 1966 stipulates that in the determination of any criminal charge, everyone shall be entitled to be tried without undue delay.

According to the court practice of the European Court of Human Rights (the “ECHR”) , a “reasonable term” in criminal cases as specified in the Convention depends on the complexity of the case, actions of investigators and in practice may be calculated from the earlier point than that one determined by the national law, e.g. from the issuance date of arrest warrant; from the date when the person concerned was notified that there is opened criminal proceeding against him; from the date when the pre-trial investigation was initiated (cases “Vemhoff v. Germany” as of June 26, 1968, “Neumaister v. Austria” as of June 27, 1968, “Ringeisen v. Austria” as of July 16, 1971).

Along with that, the terms shall be set by the national law and its compliance is an integral part of the supremacy of law.

2.

The importance of the pre-trial investigation terms is confirmed by the Decision of the Constitutional Court of Ukraine as of January 30, 2003 No. 3-рп/2003, where the court having considered the pre-trial investigation terms stipulated by the Criminal Procedural Code of Ukraine as of 1960, underlined the following in the context of whether the provision of the Constitution does not violate the possibility of the terms’ extension, at least under the procedure and for an additional term set in the Criminal Procedural Code of Ukraine:

“Therefore, the law stipulates a general rule - the pre-trial investigation shall be completed within two months, and the extension of this term is deemed to be an exception from this rule. Compliance with the investigation terms is one of conditions of performance of tasks of fast and full solving of crimes.

Pursuant to the international treaties of Ukraine the terms of pre-trial investigation shall be reasonable. Article 14 of the International Covenant on Civil and Political Rights as of 1966 stipulates that everyone shall be entitled to be tried without undue delay in any criminal charge brought against him (subpara. "c" of para. 3).

Pursuant to para. 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms as of 1950, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

"Reasonable pre-trial investigation term" is a judgement-based concept, i.e. the concept that shall be determined in each particular case in view of the totality of all the circumstances of commitment and investigation of the crime (crimes). Determining a reasonable term for a pre-trial investigation depends on many factors, including the scope and complexity of the case, the number of investigative actions, the number of victims and witnesses, whether the expert examination is required to be performed and respective conclusions to be obtained.

However, under any circumstances, the pre-trial investigation term should not exceed the necessity lines. The pre-trial investigation should be completed in each case without violating the right to a fair trial and the right to an effective remedy stipulated by Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms".


Further in this Decision the Constitutional Court concludes that the limitation of the pre-trial investigation with specific terms together with the possibility of their extension only as an exception and only within the terms specified by law, ensures the compliance with the Constitution.

3.

Determination of the pre-trial investigation terms in criminal procedure has been drastically changed within the transition to a new procedural code:

3.1.

Until 2012 the criminal process was regulated by the Criminal Procedural Code of Ukraine as of 1960, adopted by the Ukrainian Soviet Socialist Republic (the “Soviet Criminal Procedural Code”), which was “inherited”. At the same time, the Soviet Criminal Procedural Code clearly specified the terms of pre-trial investigation, which in accordance with Article 120 were defined as follows: “The pre-trial investigation in criminal cases shall be completed within two months. This period includes the time from the moment of initiating the case until sending it to the prosecutor with an indictment or a resolution on transferring the case to the court for consideration of the application of coercive measures of a medical nature or until the proceedings is closed or suspended”.

Although the Soviet Criminal Procedural Code contained a number of its "own" flaws, at least it specified a clear and understandable term (where the start of the term’s running and termination were specified) and the framework for procedural actions as well.

3.2.

In 2012 the new Criminal Procedural Code of Ukraine (the “Criminal Procedural Code”) entered the legal force, which in its primary version actually did not duly specify the admissible duration of the pre-trial investigation terms, and contained only a general note as regards the "reasonable" terms. In particular, pursuant to Article 219 of the Criminal Procedural Code Ukraine as worded in 2012 it was specified the following:

“1. The pre-trial investigation shall be completed:

1) within one month from the date when the person is notified on suspicion of committing a criminal offense;
2) within two months from the date when the person is notified on suspicion of committing a crime.”

Therefore, specific terms were determined only for the duration of the investigation after notifying the person on suspicion of committing a criminal offense. The Criminal Procedural Code did not include any specific terms preceding such an event.

In the context of Ukraine, this should practically be recognized as a flaw and a gap in required legal regulation.

These legal provisions resulted in "endless" criminal proceedings since there were not any limitations of investigation terms from the moment of registration of the criminal proceedings until the moment of notifying the person on suspicion. In light of this the pre-trial investigation bodies have leisurely "investigated" criminal proceedings within 2, 3, and even 5 years, having once in a while conducted some interrogations, searches, not to mention property being seized in such criminal proceedings for years.

4.

Eventually the mentioned state of proceedings, which led to unjustified coercion and the burden on involved and potentially involved persons, was finally realized. The government responded with changes being introduced to the legislation.

4.1.

The Law of Ukraine as of October 3, 2017 No. 2147-VIII “On Amending the Commercial Procedural Code of Ukraine, the Civil Procedural Code of Ukraine, the Code for Administrative Procedure of Ukraine and Other Legislative Acts” (the “Law No. 2147-VIII”) finally amended the Criminal Procedural Code of Ukraine, afterwards Article 219 of the Criminal Procedural Code of Ukraine as worded after March 16, 2018 specified as follows:

“1. The term of pre-trial investigation shall be calculated from the moment when information on a criminal offense is entered to the Unified Register of Pre-trial Investigations until the day of applying to the court with an indictment, a petition for application of coercive measures of medical or disciplinary nature, a motion for release from criminal liability or until the day when the court decision on closing the criminal proceedings is adopted.

The pre-trial investigation term starting from the moment when information on a criminal offense is included to the Unified Register of Pre-trial Investigations until the day when the person is notified on suspicion shall be:

1) six months - in criminal proceedings regarding a criminal offense;

2) twelve months - in criminal proceedings regarding a crime of low or medium gravity;

3) eighteen months - in criminal proceedings regarding an aggravated or exceptionally aggravated crime".


Although there are some possibilities and procedures for extending this procedural term, the Criminal Procedural Code of Ukraine as worded after March 16, 2018 has finally set at least some clear and specified pre-trial investigation terms, which were calculated from the moment of entering information on criminal proceedings into the Unified Register of Pre-trial Investigations (the “URPI”), which basically prevents for unreasonable "endless" criminal proceedings.

4.2.

At the same time, para. 4 § 2 of section 4 of the Law No. 2147-VIII (sic! However, such provisions were not directly included to the Criminal Procedural Code of Ukraine) still contained an “unpleasant surprise”, which stipulated that these specific pre-trial investigation terms “shall have no retroactive effect and shall be applied to criminal cases, information on which was included to the Unified Register of Pre-trial Investigations after these changes entered the legal force”.

Probably, it was a kind of a compromise, which, however, literally left the possibility of investigating criminal proceedings initiated before March 16, 2018, within the previous "endless" pre-trial investigation terms.

However, it may be affirmed that these provisions of Law No. 2147-VIII were not applicable since:

4.2.1.

Pursuant to part 1 of Article 5 of the Criminal Procedural Code of Ukraine:

"1. A procedural action shall be performed, and a procedural decision shall be adopted in accordance with the provisions of this Code being in force at the time of the commencement of such an action or the adoption of such a decision".

It means that the Criminal Procedural Code of Ukraine directly stipulates that all procedural actions and decisions shall be performed and adopted exclusively according to the provisions of the Criminal Procedural Code of Ukraine being in force at the time of the adoption of relevant decision/commencement of procedural action.

Actually the Criminal Procedural Code of Ukraine does not include any provisions on the application of repealed provisions of the Criminal Procedural Code of Ukraine or other provisions that would provide for the application of the old unlimited terms to “old” criminal proceedings.

Along with that part 3 of Article 9 of the Criminal Procedural Code of Ukraine stipulates:

"3. Laws and other regulatory legal acts of Ukraine related to the criminal proceedings, shall correspond to this Code. The law that contradicts to this Code may not be applied in criminal proceedings”.

In other words, the Criminal Procedural Code of Ukraine is considered to be the supreme law on criminal procedure and any legal provisions contradicting the Criminal Procedural Code of Ukraine shall not be applicable.

This is confirmed by the fact that all procedural actions should be performed only within the term specified by the Criminal Procedural Code of Ukraine. In particular, part 1 of Article 116 of the Criminal Procedural Code of Ukraine stipulates that:

"1. Procedural actions shall be performed within the terms specified by this Code …".

Accordingly, the provisions of para. 4 § 2 of section 4 of the Law of Ukraine as of October 03, 2017 No. 2147-VIII, which contradict the Criminal Procedural Code of Ukraine, were not and are not applicable.

4.2.2.

The Law No. 2147-VIII was focused “On Amending the Commercial Procedural Code of Ukraine, the Civil Procedural Code of Ukraine, the Code of Administrative Procedure of Ukraine and Other Legislative Acts”.

It means that when the Law No. 2147-VIII on March 15, 2018 entered the legal force on March 15, 2018 the actual amendments were made to the relevant procedural codes and legislative acts. Accordingly, new versions of the codes/laws, but not the law on amending, should be applied for regulating certain relations.

The Law No. 2147-VII became obsolete at the time when the relevant codes and laws entered the legal force. Accordingly, the Law No. 2147-VIII may not be applied for regulating any legal relationship.

Therefore, the provisions of the effective Criminal Procedural Code of Ukraine are subject be applied for performance of procedural actions, instead of provisions of the law which has already outlived its usefulness.

On the analogy this is confirmed by the Decision of the Constitutional Court of Ukraine as of June 26, 2008 No. 13- рп/2008:

"Laws on amending the Constitution of Ukraine lose their effect after the function of transmitting the constitutional provisions is performed and remain significant only from the historical point of view. Therefore, it is reasoned that the constitutional provisions of this law, having entered the legal force, should be contained only in the Constitution of Ukraine and have the supreme legal force.

The Law of Ukraine "On Amending the Constitution of Ukraine" is considered to be the law that was terminated simultaneously with the entering the legal force by the new constitutional provisions included to the Constitution of Ukraine by this Law. Having historical value, this Law does not exist as a regulator of public relations.

This position was elaborated by the Constitutional Court of Ukraine in the Ruling No. 6-у/2008 as of February 05, 2008 on denial in opening constitutional proceedings in the case under the constitutional motion of another subject of the right to a constitutional motion - 102 members of Parliament of Ukraine concerning the Law: "The provisions of the law on amending the Constitution of Ukraine after its entering the legal force become an integral part of the Constitution of Ukraine, and the law itself runs out of its function".


Therefore, the provisions of the Law No. 2147-VIII were not and are not applicable to criminal procedural relations. In order to determine the pre-trial investigation terms, the provisions of Article 219 of the Criminal Procedural Code of Ukraine being effective as of the date of procedural action shall be applied.

4.2.3.

With regard to the above, criminal proceedings including those being included to the URPI within 2012-2018, should have been closed under subpara. 2 of para. 10) of part 1 of Article 284 of the Criminal Procedural Code of Ukraine due to expiration of the pre-trial investigation terms, determined by Article 219 of the Criminal Procedural Code of Ukraine as amended on March 16, 2018.

However, unfortunately, in practice the pre-trial investigation bodies ignored these circumstances, and criminal proceedings being investigated for years are still illegally opened in 2020.

5.

Further relevant amendments, which were introduced into the Criminal Procedural Code by the Law of Ukraine No. 2617-VIII as of November 26, 2018 "On Amending Certain Legislative Acts of Ukraine on Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses" (the "Law No. 2617-VIII"), entered the legal force on July 01, 2020 and stipulated the following:

"21) parts one and two of Article 219 shall be replaced by four new parts as follows:

"1. The pre-trial investigation term shall be calculated from the moment when information on a criminal offense is included to the Unified Register of Pre-trial Investigations until the day of applying to the court with an indictment, a petition for application of coercive measures of medical or disciplinary nature, a motion for release from criminal liability or until the day when the court decision on closing the criminal proceedings is adopted.

2. The pre-trial investigation term starting from the moment when information on a criminal offense is included to the Unified Register of Pre-trial Investigations until the day when the person is notified on suspicion shall be:

1) twelve months - in criminal proceedings regarding a minor crime;

2) eighteen months - in criminal proceedings regarding a aggravated or exceptionally aggravated crime”.


Therefore, Article 219 of the Criminal Procedural Code of Ukraine as regards the determining the pre-trial investigation terms is hereby amended in full. At the same time, the Law No. 2617-VIII does not contain any restrictions/reservations on the application of any special (indefinite) terms to certain criminal proceedings referred to the date when they were included to the URPI (which would be illegal as mentioned above in Section 3).

Hence, this amendment may be interpreted as the final solution of the issue concerning the pre-trial investigation terms: from July 01, 2020 all the "old" criminal proceedings included to the URPI within 2012-2018 are subject to be closed under subpara. 2 para. 10) of part 1 of Article 284 of the Criminal Procedural Code of Ukraine due to the expiration of the pre-trial investigation terms, determined by Article 219 of the Criminal Procedural Code of Ukraine as amended on July 1, 2020.

6.

The "old" criminal proceedings, which pre-trail investigation terms have been already expired, should be closed "automatically".

Thus, pursuant to Article 294 of the Criminal Procedural Code of Ukraine:

"1. If the pre-trial investigation of a crime may not be completed within the terms specified in part two of Article 219 of this Code by the time when the person is notified on the suspicion, the investigative judge may extend these terms on numerous occasions by the term specified in para. 2 and 3 of part 4 of Article 219 of this Code upon consideration of the petition of the prosecutor or investigator being agreed with the prosecutor.

5. A petition for extension of the pre-trial investigation terms shall be submitted no later than five days prior the expiration of the pre-trial investigation terms defined in Article 219 of this Code.The pre-trial investigation term being expired shall not be subject to renewal".

7.

So what should be done in practice if based on calculations proceeding from the commencement date (including to the register of pre-trial investigations) the pre-trial investigation term stipulated by the law is expired, but there is no information on closing the criminal proceedings and some procedural actions such as summons for interrogation are still ongoing? ...

 

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