Unethical Practices in Halting Pretrial Investigations. The Defense's Response

One of the interim decisions that may be made during pretrial proceedings is a decision to suspend the pretrial investigation.  It is widely believed among experts that suspending proceedings at the first stage of criminal proceedings has a greater impact on the possibility of restoring the rights of the victim or civil plaintiff that were violated by the crime than on the exercise of the procedural rights of the suspect (the person regarding whom the issue of applying coercive measures of a medical or educational nature is being decided).

This conclusion can only be partially agreed with. Indeed, when a pretrial investigation is suspended, the actual duration of the proceedings increases, and consequently, for example, the time when the victim receives compensation for damages caused by the criminal offense is delayed.

At first glance, a suspect may view such a decision by the investigator (prosecutor) neutrally or even welcome it. In particular, the postponement of criminal prosecution and the imposition of criminal punishment for a person subject to criminal prosecution is a positive factor. Furthermore, once the pretrial investigation is suspended, investigative (search) actions are not permitted, except for those aimed at determining the suspect’s whereabouts (Part 5 of Article 280 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the CPC of Ukraine)), which effectively provides the defense with a certain “time-out.”

However, from a tactical standpoint, the period from the suspension of the pretrial investigation until its resumption should not be wasted by passively waiting for the next summons from an investigator or prosecutor; rather, it can be used to strengthen the defense’s legal position. The legal instrument in this case is the procedure, as regulated by the CPC of Ukraine, for appealing the decision of an investigator or prosecutor to suspend a pretrial investigation to an investigating judge in accordance with Article 303 of the CPC of Ukraine. This article will not analyze the correctness (or incorrectness) of the current procedural regulations governing the suspension of a pretrial investigation, nor will it address proposals for amendments or additions.

The current Code of Criminal Procedure of Ukraine provides for the possibility of suspending a pretrial investigation after a person has been notified of suspicion if:

1) the suspect has contracted a serious illness that prevents their participation in criminal proceedings, provided this is confirmed by a relevant medical opinion;

2) a warrant has been issued for the suspect’s arrest;

3) the investigating judge has denied a motion to conduct a special pretrial investigation;

4) there is a need to carry out procedural actions within the framework of international cooperation (Part 1 of Article 280 of the Code of Criminal Procedure of Ukraine).

This list is exhaustive and is not subject to broad interpretation.

At the same time, the appointment of an expert examination (or the involvement of an expert) does not constitute grounds for suspending a pretrial investigation (nor, for that matter, court proceedings).

It should be emphasized that the court’s discretionary authority to suspend proceedings in a case when an expert examination is ordered is regulated in civil (para. 5, Part 1 of Article 252 of the Civil Procedure Code of Ukraine), commercial (para. 2, part 1 of Art. 228 of the Commercial Procedural Code of Ukraine), and administrative proceedings (para. 4, part 2 of Art. 236 of the Code of Administrative Procedure of Ukraine).

It is no secret to any practicing lawyer that the procedure for ordering and conducting an expert examination is quite lengthy. As a rule, an expert examination takes at least several months. However, the time required to conduct this investigative action is included in the duration of the pretrial investigation.

Moreover, the provisions governing the appointment and conduct of expert examinations are set forth in Chapter 20 of the Code of Criminal Procedure of Ukraine, titled “Investigative (Search) Actions.” As previously noted, once a pretrial investigation has been suspended, the conduct of investigative (search) actions is not permitted, except for those aimed at determining the suspect’s whereabouts (Article 280(5) of the Code of Criminal Procedure of Ukraine). It is difficult to imagine a situation in which an expert examination is conducted for the purpose of determining the suspect’s whereabouts. Therefore, conducting an expert examination (and in this case, it does not matter that this investigative (search) action is carried out by an expert rather than an investigator or prosecutor) constitutes a procedural action within the framework of criminal proceedings. Therefore, conducting an expert examination in a suspended pretrial investigation is unlawful and should result in the conclusion derived from the expert examination being deemed inadmissible evidence.

However, in the practice of pre-trial investigation agencies, it is common to suspend a pre-trial investigation when an expert examination is ordered. In such cases, the legal grounds for suspending criminal proceedings include a serious illness that prevents the suspect from participating in the proceedings, a search for the suspect, or the performance of procedural actions within the framework of international cooperation.

For example, a serious illness that prevents the suspect from participating in the criminal proceedings is invoked by the prosecution in the vast majority of cases—either on its own initiative (when the parties’ interests align regarding the suspension of the pretrial investigation)  or with the tacit consent of the defense. The current Code of Criminal Procedure of Ukraine requires documentary evidence of the illness.

An institutional factor influences the prosecution’s choice of such a ground as the need to carry out procedural actions within the framework of international cooperation. As a general rule, the Prosecutor General’s Office of Ukraine submits requests for international legal assistance in criminal proceedings during the pretrial investigation and reviews corresponding requests from competent foreign authorities, except in the case of pretrial investigations of criminal offenses falling under the jurisdiction of the National Anti-Corruption Bureau of Ukraine, which in such cases acts as Ukraine’s central authority (Part 1 of Article 545 of the CPC of Ukraine). In addition, the law establishes specific requirements regarding the content and form of requests for international legal assistance. Furthermore, such requests must be routed through regional authorities, which, combined with other factors, makes the process of preparing and submitting a request time-consuming. Consequently, the de facto absence of a need to take procedural actions within the framework of international cooperation minimizes the possibility of suspending a pretrial investigation on such grounds when local and regional investigative units of pretrial investigation agencies are involved.

It appears impossible for the prosecution to use an investigating judge’s refusal to grant a motion for a special pretrial investigation as a basis for suspending the pretrial investigation in the absence of factual and legal grounds directly provided for by the Code of Criminal Procedure of Ukraine specifically for this case.

According to the author of this paper, placing a suspect on the wanted list is the most common “ground” for suspending a pretrial investigation. The reason for this is quite simple—it requires the least amount of effort, so to speak, on the part of the prosecution.

Violations of procedural law in the form of suspending a pretrial investigation in the absence of factual and legal grounds consist of a whole series of violations committed by various parties to the criminal proceedings. Thus, in cases where the suspect’s whereabouts are allegedly unknown (and it was precisely in this wording that, prior to March 16, 2017, the grounds for suspending a pretrial investigation—namely, placing the suspect on the wanted list—were regulated), the issuance by an investigator (prosecutor) of a ruling to suspend the pretrial investigation is, as a rule, preceded by a report from an operative unit officer stating that the suspect is not present at their place of residence. Given that the conduct of a pretrial investigation within a reasonable timeframe is ensured by the prosecutor serving as the procedural supervisor (Part 2 of Article 28 of the Code of Criminal Procedure of Ukraine), and that extending the duration of a pretrial investigation requires an application to other participants in the proceedings (a higher-level prosecutor, and as of March 16, 2018, also an investigating judge), the latter also has an interest in a “procedural pause.” In such a case, the prosecutor’s oversight—in the form of procedural supervision—regarding the legality and validity of the procedural decision to suspend the pretrial investigation is effectively not exercised.

It should also be noted that such “fabrication” of grounds for suspending a pretrial investigation constitutes a separate criminal offense—official forgery, that is, the drafting or issuance by a public official of knowingly false official documents, or the inclusion of knowingly false information in official documents (Article 366 of the Criminal Code of Ukraine). And this fact must certainly be addressed by the defense attorney (by filing a complaint regarding the commission of a crime in accordance with Article 214 of the Criminal Procedure Code of Ukraine).

In the event that the suspect is being sought, when appealing a ruling to suspend the pretrial investigation, attention should be paid to the following points: prior to suspending the pretrial investigation, the investigator is required to carry out all investigative (search) and other procedural actions that are necessary and feasible, as well as all actions necessary to locate the suspect (Part 2 of Article 280 of the Criminal Procedure Code of Ukraine); the suspect fails to appear, without valid reasons, when summoned by the investigator or prosecutor, provided that the suspect was duly notified of such a summons (Articles 135–136 of the Code of Criminal Procedure of Ukraine).

A common requirement in all cases of suspension of a pretrial investigation, with regard to appealing such a procedural decision to an investigating judge, is the prosecutor’s approval of the investigator’s decision (the author of this article has encountered cases where the procedural supervisor’s approval was formally absent) and the entry of the relevant information into the Unified Register of Pretrial Investigations.

A pretrial investigation is suspended by a reasoned ruling of the prosecutor or the investigator, with the prosecutor’s approval, and information regarding this is entered into the Unified Register of Pretrial Investigations (Part 4 of Article 280 of the Criminal Procedure Code of Ukraine). Thus, the law links the adoption of a procedural decision to suspend a pretrial investigation not only to the issuance of a separate ruling but also to the mandatory entry of information into the Unified Register of Pretrial Investigations. Consequently, failure to comply with this requirement should result in the decision being deemed unlawful (by analogy with initiating a pretrial investigation without entering information about it into the aforementioned register).

Additionally, failure to actually place a suspect on the wanted list may serve as grounds for revoking a resolution to suspend a pretrial investigation in cases where the suspect is being sought. Incidentally, up-to-date information on this matter is freely available via the website https://wanted.mvs.gov.ua/searchperson/.

Unfortunately, failure to comply with the provision of Part 4 of Article 280 of the Criminal Procedure Code of Ukraine regarding the requirement to send a copy of the relevant ruling to the defense is not considered by investigating judges as an independent ground for its revocation.

The suspension of a pretrial investigation in criminal proceedings involving multiple suspects deserves special attention. According to Part 3 of Article 280 of the Code of Criminal Procedure of Ukraine, if there are two or more suspects in a criminal proceeding, and the grounds for suspension do not apply to all of them, the prosecutor has the right to separate the pretrial investigation and suspend it with respect to individual suspects. Thus, the current criminal procedure law leaves the decision to suspend the pretrial investigation with respect to all suspects to the prosecutor’s discretion. It appears unacceptable for the exercise of one suspect’s procedural rights to be contingent upon circumstances arising with another suspect in the case. Incidentally, this issue was the subject of consideration by the High Specialized Court of Ukraine for Civil and Criminal Cases (Summary of the Practice of Considering Complaints Against Decisions, Actions, or Inaction by Pre-trial Investigation Authorities or the Prosecutor During a Pre-trial Investigation, Letter No. 9-49/0/4-17 dated January 12, 2017).

It should be noted that in light of significant changes to criminal procedural legislation (Legislative Acts No. 2147-VIII dated October 3, 2017, and No. 2213-VIII dated November 16, 2017), the issue of rendering a procedural decision to suspend a pretrial investigation and the procedural consequences of an investigating judge’s revocation of such a decision takes on particular significance.

Under the new rules, the period from the date of issuance of a ruling to suspend criminal proceedings until the date of its revocation by an investigating judge is included in the time limits for the pretrial investigation (para. 2, part 3 of Article 219 of the Code of Criminal Procedure of Ukraine, as amended effective March 16, 2018).

Consequently, granting a complaint against a ruling to suspend a pretrial investigation may result in a situation where the time limit for the pretrial investigation has already expired. Obviously, only the portion of the pretrial investigation period that has not yet expired is subject to extension.

This conclusion is also supported by the provisions of Part 5 of Article 294 of the Criminal Procedure Code of Ukraine (as amended effective March 16, 2018), according to which a motion to extend the term of the pretrial investigation must be filed no later than five days before the expiration of the term of the pretrial investigation, and a term of the pretrial investigation that has already expired cannot be renewed.

Thus, the mechanism for appealing a ruling to suspend a pretrial investigation to an investigating judge serves as an effective means of defense in criminal proceedings.