DENIS PONOMARENKO, attorney, partner at the “Barristers” law firm, chair of the Committee on Criminal Law and Procedure of the Odesa Regional Bar Association
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The issue of procedural deadlines during the pretrial investigation stage has been and remains highly relevant since the adoption of the Code of Criminal Procedure. Currently, due to the submission and serious discussion of draft laws Nos. 12367-2 and 12367-3 dated January 14, 2025 (the text of these drafts is identical), which provide for substantial amendments to the CPC regarding time limits, the relevance of this issue has become even more significant.
The time limits for pretrial investigation, their expiration, and their extension are a key element of criminal proceedings, as they ensure a balance between the speed of the pretrial investigation—and ultimately the administration of justice—and the rights of the suspect. The main objective is to avoid unjustified delays that could violate the rights of the parties, while also ensuring that the investigation has sufficient time to gather evidence, which in turn is fully consistent with the objectives
of criminal proceedings (Art. 2 of the CPC).
Although the CPC contains quite specific provisions on procedural deadlines at the pretrial investigation stage (Art. 219 of the CPC), in practice, there are significant challenges in adhering to procedural deadlines, as well as contentious and sometimes intractable procedural situations.
In this article, I propose to examine a practical situation through the lens of current regulations and proposed amendments to the CPC, which will help us understand:
- whether the current provisions of criminal procedural law governing the time limits for pretrial investigation generally fulfill the objectives of criminal proceedings;
- Will the aforementioned draft laws be able to address the shortcomings of criminal procedural law regarding the regulation of pretrial investigation time limits?
- What practical mechanism exists to ensure the fulfillment of the objectives of criminal proceedings in the absence of direct procedural rules governing the time limits for pretrial investigations?
Let us examine these questions based on specific practical situations.
In one case, a client was notified of suspicion of committing a criminal offense under Part 1 of Article 185 of the Criminal Code. According to the provisions of Part 2 of Article 12 of the Criminal Code, this criminal offense is classified as a misdemeanor.
Thus, based on the provisions of Part 3 and subparagraph 1 of Part 4 of Article 219 of the Code of Criminal Procedure, the maximum time limit for a pretrial investigation under this classification of a misdemeanor cannot exceed one month.
In this case, after the individual was notified of the suspicion, the investigator immediately issued a ruling declaring the individual wanted and suspending the pretrial investigation.
One and a half months after the issuance of the order to place the person on the wanted list and suspend the pretrial investigation, the defense learned of this order and challenged it as unlawful before the investigating judge.
Following the review of the defense’s appeal, the investigator’s order was overturned.
As is known, pursuant to the provisions of paragraph 2 of Part 5 of Article 219 of the Code of Criminal Procedure, the period from the date of issuance of the ruling to suspend criminal proceedings until the date of its revocation by the investigating judge is included in the time limits provided for in Article 219 of the Code of Criminal Procedure, except in cases where such a ruling is issued in accordance with the procedure established by Article 615 of the Code of Criminal Procedure.
However, Article 2985 of the Code of Criminal Procedure also provides for an additional and special procedure for extending or suspending the time limits for preliminary investigation. Under this procedure, the period from the date of issuance of a ruling to suspend criminal proceedings until the date of its revocation by an investigating judge or the issuance of a ruling to resume criminal proceedings is not included in the time limits provided for by this article (Part 4 of Article 2985 of the CPC).
Thus, in order to apply the provisions of Part 4 of Article 2985 of the CPC, a prerequisite must be met: such time limits must be provided for in Article 2985 of the CPC.
The time limits specified in Part 1 of this article state that, if additional investigative and search measures are necessary, the preliminary inquiry period may be extended by the prosecutor to thirty days. Article 2985 of the CPC contains no other provisions regarding time limits.
Therefore, a necessary condition for applying the provisions of Part 4 of Article 2985 of the CPC is that the prosecutor issue a ruling extending the preliminary investigation period to 30 days. However, taking into account the provisions of Article 219 of the CPC, the prosecutor may issue such a ruling only within the maximum duration of the preliminary inquiry specified in Article 219 of the CPC—one month (Part 3 and subparagraph 1 of Part 4 of Article 219 of the CPC).
Thus, we see that the total maximum duration of the pretrial investigation of misdemeanors may be one month (Part 3 and subparagraph 1 of Part 4 of Article 219 of the CPC) plus 30 days—an extension of the preliminary inquiry period (Article 2985(1) of the CPC).
In fact, the CPC uses two terms: “pre-trial investigation period” and “preliminary inquiry period.”
It also appears that upon the revocation of an investigator’s ruling to suspend the time limits for the pretrial investigation, the period from the date the ruling to suspend the pretrial investigation was issued until the date of its revocation is included in the time limits specified in Article219 of the CPC; and in the event of the revocation of a ruling to suspend criminal proceedings, after the prosecutor has extended the time limits by thirty days pursuant to Part 1 of Article 2985 of the CPC, the period from the date the order to suspend criminal proceedings was issued until its revocation by the investigating judge is not included in the time limits provided for in Part 1 of Article 2985 of the Code of Criminal Procedure.
Thus, upon receiving the investigating judge’s decision to revoke the investigator’s ruling to issue a wanted notice and suspend the pretrial investigation, the defense, in accordance with the procedure set forth in paragraph 10 of Part 1 of Article 284 of the Code of Criminal Procedure, filed a motion with the prosecutor to dismiss the criminal proceedings.
Instead, the prosecutor issued a ruling pursuant to Part 1 of Article 2985 of the Code of Criminal Procedure to extend the preliminary inquiry by 30 days and, citing the provisions of Part 4 of Article 2985 of the Code of Criminal Procedure, denied the defense’s motion. Immediately after the prosecutor issued the ruling to extend the preliminary inquiry, the investigator issued a new ruling to suspend the pretrial investigation, which was also challenged by the defense, as were all subsequent rulings.
What issues does this example highlight?
1. A certain contradiction between the provisions of Part 3 and Subparagraph 1 of Part 4 of Article 219 of the Code of Criminal Procedure and Part 1 of Article 2985 of the Code of Criminal Procedure.
2. Such a decision by the prosecutor to extend the preliminary inquiry period by 30 days—even if issued beyond the time limits specified in Part 3 and Subparagraph 1 of Part 4 of Article 219 of the Code of Criminal Procedure—cannot be appealed at the pretrial investigation stage (Article 303 of the CPC).
3. Article 219 of the CPC does not contain provisions granting investigating judges the authority to issue a decision at the pretrial investigation stage to close the criminal proceedings in the example cited (to apply subparagraph 10 of Part 1 of Article 284 of the CPC).
4. At the same time, the CPC does not contain provisions that would grant investigating judges the authority to compel the prosecutor to make a decision specified, inter alia,
paragraph 10 of Part 1 of Article 284 of the CPC, or one of the decisions specified in Article 283 of the CPC.
These issues are not addressed by the provisions of draft laws Nos. 12367-2 and 2367-3 and have not yet been resolved by judicial practice.
In light of the example provided, it is effective, well-founded, and necessary to propose, in the aforementioned draft laws, amending Part 4 of Article 284 of the Code of Criminal Procedure by adding paragraphs 7–11, pursuant to which it is proposed to grant the defense, the victim, or any other person whose rights or legitimate interests are restricted during the pretrial investigation the right to file a motion requiring the prosecutor to resolve the issue of concluding the pretrial investigation. The proposed amendments provide for a procedure for considering such a motion.
The exclusion of paragraph 10 of Article 284 of the CPC appears to be unjustified and unfounded.
At the same time, these draft laws do not resolve the practical problems regarding the duration of pretrial investigations in criminal proceedings where no notice of suspicion has been served on any person, nor do they address the oversight of such investigations by investigating judges in terms of compliance with the principle set forth in Article 28 of the Code of Criminal Procedure — there is no real, unified mechanism for implementation. However, this issue is already the subject of analysis in another article. And whether the mechanism proposed in paragraphs 7–11 of Part 4 of Article 284 of the CPC in the draft laws will be able to resolve these issues remains unknown.
Author: Denys Ponomarenko, Attorney and Partner at Barristers
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