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Viche 2014 6

6, 2014

Termination of Pretrial Investigation on the Grounds Set Forth in Paragraph 2 of Part 1 of Article 280 of the Criminal Procedure Code of Ukraine

This article studies the institute of termination of the pretrial proceedings according to the new Criminal Procedure Code of Ukraine. The norms of the criminal procedural legislation on grounds, conditions and procedural order to terminate the pretrial proceedings and other provisions of the legislation, which are connected with them, are analyzed. Some drawbacks of normative regulation of public relations, arising in practice due to the implementation of the institute of termination of the pretrial investigation, that concern the situations connected with the detection of people who were not served the notice of suspicion are looked at. The author pays attention to some positive effects that the norms of the CPC of 1960 had in those situations.
Appropriate proposals for improving the current legislation connected with the termination of pretrial investigation are made.
Keywords: suspect, termination, recovery, grounds, pretrail investigation

At the stage of pretrial proceedings, one of the main objectives of the criminal justice system is to provide rapid investigation of the circumstances of an offence. But during this period, the organs of pretrial investigation cannot continuously carry out their investigative activities in a timely fashion and make appropriate decisions for the rapid completion of pretrial proceedings because of some situations that may arise. In this regard, criminal procedure contains the institute of termination of pretrial investigation until the relevant obstacles to its fulfillment are removed.

In accordance with the new Criminal Procedure Code of Ukraine (hereinafter, the CPC) of 2012, the concealment of a suspect from the investigative authorities to evade criminal responsibility and the inability to establish his/her location are one of the grounds for terminating the investigation (Paragraph 2 of Part 1 of Article 280 of the CPC).

Unfortunately, the new procedural law has not only improved that institute of criminal procedure, but also complicated its practical implementation compared to the CPC of 1960. Now a suspect is a person who has been served a notice of suspicion. But there is no legal procedural form to determine the actions of the subject of investigation if the person does not appear at call on service of the notice of suspicion, and his/her location is unknown. Indeed, the effective Law prescribes that detection can be circulated only as for the suspect (Article 281 of the CPC). There are no answers to other questions related to the detection of a person whose location is unknown.

The issues regarding the institute of termination of criminal proceedings are ex-plored in many works of such domestic and foreign scientists as V. Bykov, L. Bogoslovska, P. Elkind, M. Egorova, E. Zakirova, A. Kochetova, G. Kozhevnykov, I. Kryvonos, A. Larin, V. Lomovsky, I. Maliutin, V. Navrotska, I. Nalyvaiko, M. Strogovych, O. Tatarov, etc. However, up to now there have been no sustainable approaches to solving both the theoretical and practical issues on the termination of  pretrial proceedings due to the absence of a suspect. Those issues have sharpened since the new procedural legislation was adopted.

This research aims at the analysis of scientific works, legal acts and current criminal procedural law novels, as well as the investigative practices regarding certain controversial and problematic aspects of pretrial proceedings termination due to the absence of a person, recognized as a suspect (or in respect of whom enough evidence was collected to do so), at the stage of pretrial investigation in order to make the authors proposals for the possible solutions of the above-mentioned problems.

The CPC of 1960, which operated in Ukraine before the adoption of a new criminal procedure law in 2012, also foresaw the absence (Paragraph 1 of Article 206) of an accused person (now a suspect) as the grounds for the termination of pretrial proceedings. However, at the stage of pretrial investigation, the subjects of criminal proceedings in regards to whom the investigator issued an order to arraign them as accused people and were also ranked among the accused people by lawmakers (articles 131, 133, 138 of the CPC). So, the termination of pretrial proceedings took place regardless of the fact whether an accused person had been served the order to arraign him/her as the accused person or not.

Part 1 of Article 42 of a new Criminal Procedure Code states that the suspect is a person who has been noticed on suspicion in accordance with the procedure prescribed by articles 276-279. Such a notice shall be in written form and served by the investigator or prosecutor (articles 277-278 of the CPC). Therefore, Article 280 of the CPC requires that the pretrial investigation may be terminated only after such a notice of suspicion has been served on a person. How should this procedural act be performed? In compliance with the requirements of Part 1 of Article 278 of the CPC of Ukraine, the written notice shall be served on the day when it is drawn up. In the case of failure to do so, it shall be served pursuant to the procedure of notices service set forth in the CPC, i.e. by calling on a person or at some pretext.

Part 3 of Article 111 of Chapter 6 of the CPC of Ukraine states that the notice within criminal proceedings is made according to the procedure envisaged by Chapter 11 of the CPC of Ukraine, with the exception of the provisions on the contents of this notice and the consequences of persons failure to come. In accordance with parts 1-7 of Article 135 of the CPC, a person shall be summoned to appear before an investigator, prosecutor, investigative judge or a court by means of service of the writ of subpoena, its sending by post, e-mail or facsimile communication, through a telephone call or a telegram. In the event of the temporary absence of a person at his/her place of residence, the writ of subpoena is served against receipt on his/her adult family member or any other person who lives with him/her, the housing and exploitation agency at the place of his/her residence or the administration at his/her place of work. The legislators point out (Article 136 of Chapter 11 of the CPC) that such a mediated service of the notice should be properly confirmed by the person who received the writ of subpoena or familiarized themselves with its contents by other means. This requires a signature of the person receiving the writ of subpoena, including the one by post notice; a video record of serving the writ of subpoena; and any other data confirming the fact of serving the writ of subpoena on the person or his/her being familiarized with its contents. If a person has previously informed the investigator, prosecutor, investigative judge or a court of their e-mail address, the writ of subpoena sent to this address is considered to be served in the case of confirmation of its receipt by the relevant person through an electronic letter.

What to do if a person has not received the relevant document or the investigators do not have proper confirmation of this fact for whatever reasons? This may be connected with several situations. The first: the person who had received the writ of subpoena by post or other form of communication destroyed it and the traces of receipt thereof. The second: all attempts to serve the writ of subpoena directly on that person failed. The person flatly refused to receive the writ of subpoena or familiarize themselves with its contents when it was served in a way determined by law, and any film, video and photo footage concerning the attempts of such service or the familiarization with the documents contents is absent. Then the person disappeared from the place of residence or temporary location. The third: the person had previously been interrogated as a witness in the case, and left their permanent place of location (for work, treatment, long-term business trip abroad, etc.) while the notice of suspicion was being drawn up, and there is no evidence of their concealment or intentional evasion of criminal liability. Some authors have already paid attention to similar reasons for the possible absence of a person who is the participant of criminal proceedings [Iurkova, 2009: 87].

So, in all those cases the person is not a suspect because he/she did not receive the writ of subpoena and has not been notified on suspicion. As a result, even if the notice of suspicion for the person has been drawn up and all the possible investigative activities have been performed without their participation, the proceedings cannot be terminated because there is no formal suspect. This person cannot also be put on the wanted list and, thus, the operative and search activities cannot be performed despite the fact that he/she is intentionally hiding from the investigative authorities. Part 1 of Article 281 of the CPC states that detection shall be announced only in relation to the suspect.

Under such circumstances, another problem arises. How to deal with the application of limitation periods in order to settle the issue on the discharge of this person from criminal liability? The Law (Part 2 of Article 49 of the Criminal Code of Ukraine) states that the limitation period is suspended if the person who had committed the crime avoided the investigation. Taking into account the formalities of the current version of the CPC, the person who has committed the crime must be served the notice of suspicion, and the process of such a service, as it has already been noted, did not take place. In this case, the procedural periods would be expiring in favour of the person because they bring closer his/her discharge from criminal liability. These periods would be expiring much quicker when the crime had been detected late and a lot of time has passed before the beginning of pretrial proceedings.

These legal forms to regulate legal relationships of the institute of pretrial proceedings are unacceptable because in each case when a suspect deviates from criminal liability in one way or another the rights and interests of a victim would be violated.

The new CPC has also narrowed the circumstances under which a pretrial investigation may be terminated. Paragraph 2 of Part 1 of Article 280 of the CPC emphasizes that such a decision can be made only if the absence of the suspect is connected with the fact that he/she is hiding from the investigative authorities in order to evade criminal liability. The absence of the suspect is not the fact of his/her concealment from the investigative authorities to evade criminal liability. In order to prove this, in most cases one needs, firstly, to identify the place of the persons location, and, thus, to explore the ways and means of his/her concealment, interrogate the suspect, etc. Moreover, the determination of the reasons for the absence of a person is obligatory in any case because this process is connected with the calculation of the limitation period for the discharge of a person from criminal liability. If this cannot be proven without the determination of the place of the location of a suspect, how should law-enforcement authorities act? Should they not terminate the criminal proceedings? What should investigative authorities do when a person has been served the notice of suspicion but he/she left their permanent place of location without the intention to hide or evade criminal liability? The breach of obligations under the preventive measure chosen for the suspect is an issue to be explored separately. All the above-mentioned issues have been solved by the provisions of Paragraph 1 of Part 1 of Article 206 of the CPC of 1960. They foresaw the termination of criminal proceedings when the place of location of an accused person is not known at all.

But these are not all the issues arising out of the contents of the new CPC. Taking into consideration the provisions of the efficient norm of Part 1 of Article 281 of the CPC, one can see that a suspect may be put on the wanted list. This norm does not contain such conditions for the detection as the concealment from investigative authorities to evade the criminal liability. It envisages that such a measure is taken if ... the location of the suspect is unknown during the pretrial investigation. It is difficult to understand this logic of lawmaking and objectively explain the above-mentioned divergence between the dispositions of articles 280 and 281 of the CPC. Thus, if the location of the suspect is unknown, he/she can be put on the wanted list but it is impossible to terminate the criminal proceedings. Under these circumstances, the termination of investigation in the case is impossible even if the suspect has been detected for a long time and there are no opportunities for conducting further investigative activities because all the necessary activities to be performed without the suspect have already been implemented in full within the criminal proceedings. Another issue arises. If in such a situation the criminal proceedings cannot be terminated because that causes the termination of the procedural investigation period (Part 3 of Article 219 of the CPC), what to do with the procedural terms of investigation which are currently limited (Article 219 of the CPC): up to six months from the date when a person was notified on suspicion of having committed a minor- or medium-gravity crime; up to twelve months from the date when a person was notified on suspicion of having committed a grave or especially grave crime? The hope that the period of pretrial proceedings determined by Law would be appropriate is not always true in cases when the persons detection takes too much time (this is not rare in practice). For instance, the wanted person could be found shortly before the end of the maximum period of investigation in the case but extensive work to terminate the investigation should be done with his/her participation; or the suspect could be detected and put to the investigative organ after the end of a maximum period. That issue could have been resolved under the CPC of 1960 as there were no restrictions to the investigation terms in a criminal case which could be extended in exceptional cases (Part 3 of Article 120 of the CPC) by the Prosecutor General or their deputies to complete the investigation.

While reforming the criminal procedural law, one should remember that this is a comprehensive system formation based on public experience and knowledge accumulated in the process of its elaboration and practical application. Therefore,  compliance of new criminal proceedings with the requirements of the Basic Law of our State, the legal principles, legal consciousness, justice, and continuity of the provisions that meet the best international standards and contribute to their development and progress are the main indicators of their effectiveness and quality. Novelty for novelty is hopeless. It has no grounds for its development and public perception, and gives rise to problems in law enforcement activities without its perfect modeling and experimentation in practice. It inevitably has a negative impact on the protected rights and freedoms of citizens, society and also the state.

Not so much time has passed from the day the new criminal procedural law was adopted but the ignorance of these obvious principles of lawmaking has caused some problems in the process of its practical implementation, including the legal rules on the termination of criminal proceedings at the stage of pretrial investigation.

Scientists could not help but respond to that. In particular, E. Nalyvaiko states that a suspect should be put on the wanted list and the pretrial investigation should be terminated not only after the notice on suspicion has been served but also in cases when a suspect is intentionally hiding from investigative authorities or when the order on the notice of suspicion has been drawn up [Nalyvaiko, 2013: 379]. One can partially agree with this proposal of the author. In fact, the termination of pretrial investigation should take place in the case of intentional concealment of the person in respect of whom there was enough evidence collected to suspect him/her of having committed a crime regardless of the fact whether one had been able to serve the written notice on that person till the moment the latter disappeared from his/her place of residence.

At the same time, we do not believe that the above-mentioned termination of criminal proceedings during the pretrial investigation can be carried out only in the case of the deliberate concealment of a person from the investigative authorities. It is clear that a person in respect of whom the notice of suspicion was issued and their location is unknown (possible reasons for that were given hereinabove) should be also detected by terminating the investigation to save the limitation period for criminal liability but should not be released from the liability due to involuntary procrastination. I. Kryvonos uses the limitation periods as the grounds to explain his proposal on the need for a legislative decision to terminate the investigation within criminal proceedings when the location of the suspect is simply unknown [Kryvonos]. But the scientist does not say anything about a person who has not been served the notice on suspicion.

These problems are complex and their resolution, firstly, requires considering the status of the person in respect of whom there is evidence to suspect him/her of having committed a crime. Agreeing with L. Udalova that this person should acquire the status of a suspect since the investigator has drawn up ... a written notice of suspicion [Udalova, 2013: 10], one should prove this statement. Legislators have acknowledged that such a notice shall be drawn up (Paragraph 3 of Part 1 of Article 276 of the CPC) if there is sufficient evidence to suspect a person of having committed a criminal offence. Under such conditions, it is considered as an official procedural act that certifies a certain legal fact: the appropriate person becomes a suspect having committed a criminal offence. This person is suspected to have committed a crime since the date when that act was issued. Therefore, legislators state (Part 1 of Article 278 of the CPC) that the above-mentioned notice shall be served on the day when it is drawn up, since it comes into force at the same time. That is why, since that day (not after the service of the notice or interrogation of a person) a person de jure becomes a suspect, i.e. a participant in the criminal proceedings having other status, procedural rights and obligations than he/she had before (as a witness).

At the same time, lawmakers, taking into account the practical realities connected with the inability of a person to come to the investigative organ in certain cases or his/her absence for other reasons, allow to serve this notice after the suspect was called on or put to the investigative authorities. The service of the notice confirms another legal fact. Since then, the person shall actually be considered as a suspect arraigned on a criminal charge. Back in 1999, the Constitutional Court of Ukraine gave a clear explanation of the status of such a person at those two stages of pretrial proceedings [1].

If, to comply with the provisions of a new CPC, the person becomes a suspect since the notice of suspicion was served. So, in case of failure to serve the notice of suspicion the latter loses its effect. But this interpretation would be judicially incorrect. If one agrees with the legislators' view that a person shall be considered as a suspect since he/she was served a proper notice, it allows (after the location of this person was established and he/she was called on (put to) by the investigator) to interrogate this person as a witness without restrictions in time (the Law does not determine the term when a notice is to be served on that person) and to require the truthful testimony given even against themselves under the threat of criminal liability for false evidence. Therefore, when the investigative organ receives all the necessary testimony which is essential for the suspicion, it can fulfill the formal actions that are to serve the notice on suspicion and to give the person another procedural status. One cannot also agree with this.

Grounded on the above-mentioned facts we consider that a person should acquire the status of a suspect not from the date when the notice of suspicion was announced but from the moment when that procedural act was drawn up. This will contribute to solution of the other problematic issues relating to the termination of investigation and detection of a suspect.

Therefore, we propose the following:

1. To amend Part 1 of Article 42 of the CPC of Ukraine. Instead the words who was noticed on the suspicion in accordance with the procedure prescribed by articles 276-279 of this Code, it should be written as for whom the notice of suspicion was drawn up in accordance with the procedure prescribed by articles 276-277 of this Code with no further amendments to the text.

2. The words after a person was noticed on suspicion should be removed out of Part 1 of Article 280 of the CPC.

3. To remove the conjunction and and insert the conjunction or to the text of Paragraph 2 of Part 1 of Article 280 of the CPC.

4. Part 1 of Article 281 of the CPC should be formulated due to the wording change indicated for Paragraph 2 of Part 1 of Article 280 of the CPC.

 

References

1. г 1-15/99 ̳ 80 ( ) 9-/99 27 1999 . [Decision of the Constitutional Court of Ukraine in case 1-15/99 in return of the Constitutional Notice of the Ministry of Internal Affairs of Ukraine on the official interpretation of provisions of Part 3 of Article 80 of the Constitution of Ukraine (the case on deputy immunity) 9-/99 of 27 October 1999] (1999), 44: 2193.

2. Iurkova G. (2009) , [Termination of pretrial investigation and detection of an accused person whose location is unknown], ³ 6: 8690.

3. Kryvonos I. , , [Termination of pretrial investigation when a suspect hides from the investigative and court authorities in the context of a new Criminal Procedure Code of Ukraine], <http://archive.nbuv.gov.ua/portal/soc_gum/vkhnuvs/2012_58/58/14.pdf >

4. Nalyvaiko I. (2013) [Problematic issues on the notice on suspicion and termination of pretrial investigation], 1: 379.

5. Udalova L. (2013) [Some problematic issues on the implementation of the criminal procedural law], : . . , 26 2013 , . : 10.

Bohdan ROMANIUK