The issue of the consequences of the prosecution’s failure to meet pretrial investigation deadlines has once again come to the fore in light of yet another attempt to repeal the so-called “Lozovoy amendments.”

Thus, at the end of 2024, the Cabinet of Ministers of Ukraine submitted to the Verkhovna Rada of Ukraine a draft law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine and the Law of Ukraine ‘On the Prosecutor’s Office’ regarding the removal of obstacles for parties to criminal proceedings in accessing justice.”

Before assessing these legislative changes, it is important to determine whether the issue of compliance with deadlines is significant. Criminal proceedings are a set of formalized procedures aimed at investigating criminal offenses. Such investigations involve significant interference by law enforcement agencies in the rights of individuals and legal entities, including restrictions on freedom of movement and property rights.

Given the substantial restrictions on the rights of participants in criminal proceedings during the investigation, the duration of such investigations has been limited by the legislature; specifically, the suspect’s right to have their case heard within a reasonable time has become an integral part of the right to a fair trial, guaranteed by Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Thus, procedural time limits are a vital institution of criminal procedure that could undergo fundamental changes if the proposed legislative amendments are adopted. In particular, the draft completely revises the procedural consequences of failing to meet pretrial investigation deadlines and introduces changes to the mechanisms for extending them. The main changes include the following.

1. Abolition of the mandatory termination of proceedings due to the expiration of investigation time limits.

Thus, the proposed amendments to Articles 219 and 284 of the Code of Criminal Procedure eliminate the possibility of closing criminal proceedings on the grounds that the pretrial investigation deadline has expired after a person has been notified of suspicion, and simultaneously provide for the possibility of extending the investigation even after the deadlines have expired, provided that thethe actions prescribed by the prosecutor (Part 2 of Article 283 of the CPC).

According to the proposed amendments to the CPC, no later than the last day of the pretrial investigation period, the prosecutor is required to take one of the actions provided for in Part 2 of Article 283 of the CPC (draw up an indictment, close the proceedings, etc.).

Along with these amendments, it is proposed to grant participants in criminal proceedings the ability to compel the prosecutor to make a final decision.

Thus, if the prosecutor fails to take the specified actions after the investigation period has expired, the defense, the victim, or another interested party may file a motion with the investigating judge requesting that the prosecutor be compelled to make a decision to conclude the investigation.

The investigating judge shall consider the motion no later than 5 days after its receipt and, based on the results of the relevant review, may issue a decision to:

• require the prosecutor to issue a decision to conclude the investigation, disclose the case materials in accordance with the requirements of Article 290 of the Code of Criminal Procedure, or dismiss the criminal proceedings;
• to deny the motion if, by the time the motion is considered, the prosecutor has disclosed the materials of the pretrial investigation (completed the pretrial investigation in accordance with the procedure set forth in Article 290 of the Code of Criminal Procedure).

At the same time, the draft does not provide for any mechanisms to monitor compliance with such a court decision, which in practice may result in delays in the prosecutor’s final decision.

Overall, removing the possibility of closing criminal proceedings due to the expiration of the pretrial investigation period after notification of suspicion significantly restricts the rights of the suspect, who is deprived of one of the important defense tools, which allows them to avoid remaining in the status of a suspect for an extended period and the associated restrictions without a genuine investigation being conducted.

Once again, there is a risk of “frozen” criminal proceedings, where the investigation is effectively not being conducted, yet the case remains open and restrictions on the rights of the parties (in particular, asset freezes) remain in effect—which clearly violates the principle of legal certainty.

Furthermore, the proposed changes will significantly increase the burden on the judicial system, as judges will be forced to spend years reviewing criminal cases that should have been closed as early as the preliminary hearing stage.

2. Strengthening Prosecutors’ Accountability

As a compensatory mechanism to protect the rights of the suspect, it is proposed to increase the liability of prosecutors for violating procedural deadlines. Thus, prosecutors are required to promptly decide whether to conclude an investigation or close it. Disciplinary liability is introduced for failure to comply with these requirements. Thus, if the draft is adopted, a violation of the relevant time limits will constitute an independent and sufficient ground for holding a prosecutor disciplinarily liable, which will be enshrined in Article 43 of the Law of Ukraine “On the Prosecutor’s Office.”

At the same time, such violations have previously served as grounds for holding prosecutors accountable, as evidenced by numerous decisions of the Qualification-Disciplinary Commission for Prosecutors to hold prosecutors accountable in cases where a court has dismissed criminal proceedings pursuant to paragraph 10 of Part 1 of Article 284 of the Code of Criminal Procedure.

Therefore, in this regard, the draft law merely creates the illusion of increased accountability for prosecutors, while in practice it does not provide any compensatory mechanisms to protect the suspect’s violated rights.

3. Change in the Procedure for Extending Time Limits

The draft also proposes changing the procedure for extending the duration of a pretrial investigation, which will now be extended for up to 6 months by decision of the prosecutor, and up to 12 months by decision of an investigating judge.

If the proposed amendments to the Code of Criminal Procedure are adopted, the suspect’s rights and opportunities will be significantly restricted for several reasons.

Specifically, excluding the investigating judge from the process of extending the duration of a pretrial investigation to 6 months and transferring this authority exclusively to the prosecutor significantly limits the suspect’s ability to defend their rights, since the absence of the defense’s participation in such a process undermines the adversarial principle and judicial oversight of the prosecution’s actions.

The prosecutor, who represents the prosecution, may abuse this authority, which would contribute to prolonging the investigation.

Expanding the prosecutor’s authority to extend the duration of a pretrial investigation, in my opinion, is possible only if stricter requirements are imposed on the justification for such a decision by the prosecutor and, at the same time, the defense’s right to appeal it to an investigating judge is ensured.

During such an appeal, the prosecutor will be required, based on the principle of adversarial proceedings, to prove before the court that there are compelling grounds for continuing the restriction of the suspect’s rights.

In addition, disciplinary liability for the prosecutor should also be provided for in cases of abuse of the right to extend time limits without proper grounds, which may be established, in particular, in the relevant ruling of the investigating judge, issued following the consideration of the suspect’s complaint against the prosecutor’s decision to extend the pretrial investigation period.

General Consequences of Adopting the Bill

The proposed changes could upset the balance between the prosecution and the defense, reducing the level of judicial oversight and increasing the potential for abuse by investigative authorities. Although these changes are motivated by a desire for more effective investigations, they create risks of violating the principle of a fair trial, guaranteed by Article 6 of the Convention.

Therefore, the proposed amendments to the Code of Criminal Procedure will require substantial revision by lawmakers to introduce clear compensatory mechanisms for participants in criminal proceedings. Judicial oversight, time limits, and sanctions for abuse are key to ensuring a balance between the effectiveness of investigations and the rights of suspects.