HOW DO I CANCEL A STATE SUSPECT REPORT?

Procedure for calculating the terms of pre-trial investigation (specific case)

On 04/05/2018, information was entered on criminal proceedings № 120180000000000232 on the grounds of a criminal offense under Part 4 of Art. 190 of the Criminal Code of Ukraine.

12.12.2018 in accordance with Article 208 of the Criminal Procedure Code of Ukraine, within the framework of criminal proceedings № 1201800000000000232, on suspicion of committing a criminal offense under Part 4 of Article 190 of the Criminal Code of Ukraine, a number of persons were detained and, in accordance with Article 2, suspicion of a criminal offense.

02/04/2019 by the Deputy Prosecutor General, the pre-trial investigation period in criminal proceedings № 1201800000000000232 was extended to 3 months, that is, until 03/12/2019.

02/18/2019 by the prosecutor in criminal proceedings, the materials of pre-trial investigations in criminal proceedings № 12018000000000232 and № 12018040000000337 were combined into one criminal proceedings, about which information was entered into the Unified Register of Pre-trial Investigations under № 12018040000000337.

On 05.04.2019, the prosecutor in criminal proceedings combined the materials of pre-trial investigations in criminal proceedings № 12018160470000733 and № 12018040000000337, which was entered into the Unified Register of Pre-trial Investigations under № 12018160470000733.

06/05/2019 by the investigating judge of the Pechersky District Court of Kiev, the pre-trial investigation in criminal proceedings № 12018160470000733 was extended to nine months, namely until 09/12/2019.

On June 27, 2019, the pre-trial investigation in criminal proceedings was stopped due to the need to perform procedural actions within the framework of international cooperation.

At the time of the first stop of the pre-trial investigation, the prosecution had 4 days left in June 2019 + 31 days in July 2019 + 31 days in August 2019 + 11 days in September 2019 = 77 days.

On 03.07.2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On 03.07.2019, the pre-trial investigation in criminal proceedings was stopped due to the need to perform procedural actions within the framework of international cooperation.

Considering that the day of stopping and the day of resumption of the pre-trial investigation is counted in the total period of the pre-trial investigation, after the decision of 03.07.2019 to suspend the pre-trial investigation, the prosecution has 76 days left.

On July 8, 2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On July 15, 2019, the pre-trial investigation in criminal proceedings was stopped due to the need to carry out procedural actions within the framework of international cooperation.

After the decision of July 15, 2019 to suspend the pre-trial investigation, the prosecution had 63 days left.

On July 16, 2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On July 18, 2019, the pre-trial investigation in criminal proceedings was stopped due to the need to carry out procedural actions within the framework of international cooperation.

After the decision of July 18, 2019 to suspend the pre-trial investigation, the prosecution has 60 days left.

On 05.08.2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On 05.08.2019, the pre-trial investigation in criminal proceedings was stopped due to the need to carry out procedural actions within the framework of international cooperation.

After the decision of 08/05/2019 to suspend the pre-trial investigation, the prosecution had 59 days left.

A copy of the decision of 08/05/2019 on the suspension of the pre-trial investigation was the last one that the prosecution received in accordance with the requirements of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine sent to the defense.

09/21/2020 Pechersky District Court in Kiev in the case 757/26684/20-k adopted a ruling to cancel the order of 08/05/2019 to stop the pre-trial investigation in criminal proceedings № 1201816047000

According to Part 5 of Art. 219 of the Criminal Procedure Code of Ukraine, the period from the date of the decision to stop the criminal proceedings until the day of its cancellation by the investigator by the judge shall be included in the terms provided for in this article.

Taking into account the above, as of 09/21/2020, 21 days of September 2020 + 31 days of August 2020 + 31 days of July 2020 + 30 days of June 2020 + 31 days of May 2020 30 + 31 days of March are attributed to the general period of pre-trial investigation 2020 + 29 days of February 2020 + 31 days of January 2020 + 31 days of December 2019 + 30 days of November 2019 31 days of October 2019 + 30 days of September 2019 + 27 days of August 2019 = 4.

Thus, the period of pre-trial investigation exceeded the allowable 414 days - 59 days by 355 days.

Taking into account the above, in accordance with the determination of the investigating judge of the Pechersky District Court of Kiev dated 03.22.2021 in case № 757/11767/21-k, the authorized prosecutor in criminal proceedings № 12020000000000119 is obliged to perform the actions specified in paragraph 10 of part 1 of Art. 284 of the Criminal Procedure Code of Ukraine regarding the suspicion of a number of persons.

This definition established the obligation of the authorized prosecutor to close criminal proceedings № 1202000000000119 in connection with the end of the pre-trial investigation period.

This court ruling is in line with the practice of the Supreme Court of Ukraine, in particular in case № 556/1381/18 (decision of May 26, 2020), where the court noted that the current criminal procedural legislation does not contain restrictions on the closure of criminal proceedings at any stage process before the court leaves the deliberation room to make a decision on the merits. Such a possibility is also valid at the stage of pre-trial investigation of criminal proceedings - in accordance with Art. 307 of the Criminal Procedure Code of Ukraine by the obligation of the investigator to the judge to perform a specific action. So, in the decision of 12.12.2019 in case № 161/10535/19, the Supreme Court of Ukraine indicated that the determination of the investigating judge, who satisfied the complaint of the lawyer and is obliged to the authorized person of the SU GUNP in the Volyn region and the prosecutor's office of the Volyn region to make a decision on the closure of criminal proceedings due to the expiration of the pre-trial investigation period is not subject to appeal.

After the announcement of the ruling of the investigating judge of the Pechersky District Court of Kiev from 22.03.2021 in case № 757/11767/21-k, the prosecutor applied in accordance with Art. 380 of the Code of Criminal Procedure of Ukraine, to clarify the judgment. In accordance with the ruling of the Pechersky District Court of Kiev from 26.04.2021 in case № 757/11767/21-k, the statement of the prosecutor of the Department of the Office of the Prosecutor General Gustyakov Y. on clarifying the ruling of the investigating judge of the Pechersky District Court of Kiev dated 22.03. - left unsatisfied.

In addition, in violation of the requirements of the court ruling and the current norms of the Criminal Procedure Legislation of Ukraine, the prosecutor completed the pre-trial investigation in criminal proceedings № 1202000000000119 dated 13.02.2020 and opened the materials of the criminal proceedings in accordance with Art. 290 of the Criminal Procedure Code of Ukraine. These actions contain signs of crimes committed by an official of the prosecutor's office, about which relevant statements were sent to law enforcement agencies.

After the defense side familiarized itself with the materials of case № 757/11767/21-k, in particular, a statement on clarifying the determination of the investigating judge of the Pechersk District Court of Kiev dated 03.22.2021 filed in accordance with Art. 380 of the Code of Criminal Procedure of Ukraine, a thorough defense learned about the existence of other decisions to resume and stop the pre-trial investigation.

In accordance with the statement of the prosecutor filed in accordance with Art. 380 of the Criminal Procedure Code of Ukraine, the pre-trial investigation period is 1 month and 17 days. In addition, the prosecutor states that

On 09.08.2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On 08/09/2019, the pre-trial investigation in criminal proceedings was stopped due to the need to carry out procedural actions within the framework of international cooperation. A copy of this decree, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of 08/09/2019 to suspend the pre-trial investigation, the prosecution, according to the estimates of the defense, has 58 days left. In addition, if we take into account the determination of the Pechersky District Court of Kiev in case 757/26684/20-k on the cancellation of the order of 08/05/2019 to stop the pre-trial investigation, then it is necessary to take into account the period from 08/05/2019 to 08/09/4. pre-trial investigation was 54 days.

On 12 August 2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On 12 August 2019, the pre-trial investigation in criminal proceedings was stopped due to the need to carry out procedural actions within the framework of international cooperation. A copy of this decree, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of 12.08.2019 to suspend the pre-trial investigation, the prosecution, according to the estimates of the defense, has 53 days left.

On August 17, 2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On August 17, 2019, the pre-trial investigation in criminal proceedings was stopped due to the need to perform procedural actions within the framework of international cooperation. A copy of this decree, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of 17.08.2019 to suspend the pre-trial investigation, the prosecution, according to the estimates of the defense, has 52 days left.

On September 30, 2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On September 30, 2019, the pre-trial investigation in criminal proceedings was stopped due to the need to perform procedural actions within the framework of international cooperation. A copy of this decree, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of September 30, 2019 to suspend the pre-trial investigation, the prosecution, according to the defense, had 51 days left.

On 09.10.2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On 10/09/2019, the pre-trial investigation in criminal proceedings was stopped due to the need to perform procedural actions within the framework of international cooperation. A copy of this decree, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of 10/09/2019 to suspend the pre-trial investigation, the prosecution, according to the estimates of the defense, has 50 days left.

On 10.10.2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On 10.10.2019, the pre-trial investigation in criminal proceedings was stopped due to the need to perform procedural actions within the framework of international cooperation. A copy of this decree, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of 10.10.2019 to suspend the pre-trial investigation, the prosecution, according to the estimates of the defense, has 49 days left.

On October 16, 2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On October 16, 2019, the pre-trial investigation in criminal proceedings was stopped due to the need to carry out procedural actions within the framework of international cooperation. A copy of this decree, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of 10/16/2019 to suspend the pre-trial investigation, the prosecution, according to the estimates of the defense, has 48 days left.

On 6 November 2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On 08.112019, the pre-trial investigation in criminal proceedings was stopped due to the need to perform procedural actions within the framework of international cooperation. A copy of this decree, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of 11/08/2019 to suspend the pre-trial investigation, the prosecution, according to the estimates of the defense, has 45 days left.

On 11.11.2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On 11/11/2019, the pre-trial investigation in criminal proceedings was stopped due to the need to perform procedural actions within the framework of international cooperation. A copy of this decree, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of 11/11/2019 to suspend the pre-trial investigation, the prosecution, according to the estimates of the defense, has 44 days left.

On 13 November 2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On 13 November 2019, the pre-trial investigation in criminal proceedings was stopped due to the need to carry out procedural actions within the framework of international cooperation. A copy of this decree, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of 11/13/2019 to suspend the pre-trial investigation, the prosecution, according to the estimates of the defense, has 43 days left.

On 14 November 2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On 11/14/2019, the pre-trial investigation in criminal proceedings was stopped due to the need to carry out procedural actions within the framework of international cooperation. A copy of this decree, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of 11/14/2019 to suspend the pre-trial investigation, the prosecution, according to the estimates of the defense, has 42 days left.

On December 10, 2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On December 10, 2019, the pre-trial investigation in criminal proceedings was stopped due to the need to carry out procedural actions within the framework of international cooperation. A copy of this decree, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of 10.12.2019 to suspend the pre-trial investigation, the prosecution, according to the estimates of the defense, has 41 days left.

On December 18, 2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On December 18, 2019, the pre-trial investigation in criminal proceedings was stopped due to the need to carry out procedural actions within the framework of international cooperation. A copy of this decree, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of 12/18/2019 to suspend the pre-trial investigation, the prosecution, according to the estimates of the defense, has 40 days left.

On December 26, 2019, the pre-trial investigation in criminal proceedings was resumed due to the need to conduct investigative (search) and procedural actions.

On December 26, 2019, the pre-trial investigation in criminal proceedings was stopped due to the need to carry out procedural actions within the framework of international cooperation. A copy of this decree, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of 12/26/2019 to suspend the pre-trial investigation, the prosecution, according to the estimates of the defense, has 39 days left.

On February 13, 2020, materials concerning the suspects were separated from criminal proceedings № 12018160470000733 into separate proceedings under № 12020000000000119, in which the pre-trial investigation was stopped on the same day. A copy of the decision to suspend the pre-trial investigation, in violation of Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, the defense was not sent.

After the decision of February 13, 2020 to suspend the pre-trial investigation against the prosecution, according to the estimates of the defense, 38 days remain.

After the defense learned about the existence of other orders to suspend the pre-trial investigation, copies of which were not sent to the latter, all decisions were appealed in accordance with Part 4 of Art. 280 and paragraph 2 of Part 1 of Art. 303 of the Criminal Procedure Code of Ukraine.

In accordance with the determination of the Pechersky District Court of 21.09.2021 in case № 757/26684/20-k, the decision of the prosecutor of the department of organization of procedural leadership and the maintenance of public prosecution in criminal proceedings on transnational crime of the Department of supervision and procedural leadership in criminal proceedings for organized and procedural guidance of the pre-trial investigation of the police and the fiscal service and in criminal proceedings on organized crime of the Office of the Prosecutor General Zhikharev V.A. of 13.02.2020 on the suspension of the pre-trial investigation in criminal proceedings № 12020000000000119 canceled.

Thus, the period from 13.02.2020 to 21.09.2021 (more than 19 months) is attributed to the period of pre-trial investigation.

Regulatory rationale for canceling suspicion by timing

The pre-trial investigation ends within 2 months from the date of notification of the suspicion.

Part 4 of Article 219 of the Criminal Procedure Code of Ukraine provides that the period of pre-trial investigation may be extended in the manner prescribed by paragraph 4 of Chapter 24 of this Code. According to the content of Art. 283 of the Code of Criminal Procedure of Ukraine, a person has the right to consider the charges against him in court as soon as possible or to terminate it by closing the proceedings. The prosecutor is obliged to carry out one of the following actions as soon as possible after notifying the person of the suspicion: to close the criminal proceedings; apply to the court with a petition to release a person from criminal liability; go to court with an indictment, a petition for the application of compulsory measures of a medical or educational nature.

According to part 1 of Art. 2 of the Criminal Procedure Code of Ukraine, one of the tasks of criminal proceedings is to protect the rights of participants in criminal proceedings, which is ensured by ensuring that a proper legal procedure is applied to each participant in criminal proceedings. According to Part 1 of Art. 7 of the Criminal Procedure Code of Ukraine, the content and form of criminal proceedings must comply with the general principles of criminal proceedings, which, in particular, include: the reasonableness of terms (Art. 28 of the Criminal Procedure Code of Ukraine). According to the provisions of Art. 28 of the Code of Criminal Procedure of Ukraine, reasonable time limits may not exceed the time limits provided for by this Code for the performance of individual procedural actions or the adoption of individual procedural decisions. The prosecutor shall ensure that the pre-trial investigation is carried out within a reasonable time frame. Thus, the term of the pre-trial investigation is not a mere formality, but acts as a guarantee of the fundamental human right to consider his case within a reasonable time, which is enshrined in paragraph 1 of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and is provided for by the fundamentals of criminal proceedings, Art. 7, part 1 of Art. 21 of the Criminal Procedure Code of Ukraine. A person cannot be in the state of a suspect for an unlimited time if the public prosecution, for whatever reason, is unable to determine the charge, draw up an indictment and send the case to the court within the time limit established by law. In such circumstances, the person should be relieved of suspicion. According to Art. 8 of the Criminal Procedure Code of Ukraine, criminal proceedings are carried out in compliance with the principle of the rule of law, according to which a person, his rights and freedoms are recognized as high values ​​and determine the content and direction of the state's activities. The procedural period of pre-trial investigation is one of the most important manifestations of the legal principle of the rule of law, which requires proper legal certainty in such a vulnerable status of a person as a suspect.

Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides that everyone has the right to a fair and public hearing of his case within a reasonable time by an independent and impartial court established by law, which will resolve a dispute regarding his rights and obligations of a civil nature or establish the validity of any the criminal charge brought against him.

At the same time, in paragraph 95 of the Decision of the ECHR in the case "Nakhmanovich v. Russia" dated 02.03.2006, application № 55669/00, it is indicated that one of the criteria assessed when checking the reasonableness of the duration of proceedings is the applicant's behavior and the behavior of the competent authorities .

The European Court of Human Rights points out that the Convention bodies have consistently adhered to the approach according to which Article 6 in criminal cases is “designed to prevent an excessively prolonged detention of an accused person in a state of uncertainty about his fate” (judgment in the case “Nakhmanovich v. Russia” ), Application № 55669/00, dated 02.03.2006, p. 89).

Article 19 of the Constitution of Ukraine stipulates that state authorities and local self-government bodies, their officials are obliged to act only on the basis, within the powers and in the manner provided for by the Constitution and the laws of Ukraine.

According to clause 10, part 1 of Art. 284 of the Code of Criminal Procedure of Ukraine, criminal proceedings shall be closed if: after informing a person about the suspicion, the period of pre-trial investigation determined by Article 219 of this Code has expired, except for the case of notifying the person about the suspicion of committing a grave or especially grave crime against the life and health of the person.

According to par. 3 h. 1 tbsp. 284 of the Criminal Procedure Code of Ukraine, the prosecutor adopts a resolution to close criminal proceedings on the suspect on the grounds provided for in part one of this article, except for the case provided for in paragraph four of this part.

According to paragraph 4 of part 3 of Art. 219 of the Code of Criminal Procedure of Ukraine from the day the person is notified of the suspicion, the pre-trial investigation must be completed within two months from the day the person is notified of the suspicion of committing a crime.

In accordance with paragraph 3 of part 4 of Art. 219 of the Code of Criminal Procedure of Ukraine, the period of pre-trial investigation may be extended, while the total period of pre-trial investigation cannot exceed: twelve months from the date of notification of the person on suspicion of committing a grave or especially grave crime.

In the event that the prosecutor fails to fulfill this obligation, the investigating judge pursuant to Art. 307 of the Code of Criminal Procedure of Ukraine may oblige the prosecutor to take an action - to make a decision to issue an order to close criminal proceedings, including in connection with the expiration of the pre-trial investigation period (Resolution of the Supreme Court of Ukraine in case № 556/1381/18 of 26.05). 2020).

With this in mind, in accordance with the determination of the investigating judge of the Pechersky District Court of Kiev dated 03.22.2021 in case № 757/11767/21-k, the authorized prosecutor for criminal proceedings № 12020000000000119 is obliged to perform the actions specified in paragraph 10 of part 1 of Art. 284 of the Criminal Procedure Code of Ukraine regarding the suspicion of a number of persons.

A notice of suspicion is a procedural decision made in accordance with Art. 110, 276, 277 of the Criminal Procedure Code of Ukraine.

According to Art. 42 of the Code of Criminal Procedure of Ukraine, a person acquires the status of a suspect from the moment of notification of a suspicion.

According to Part 2 of Art. 283 of the Criminal Procedure Code of Ukraine, the prosecutor is obliged, as soon as possible after notifying the person of the suspicion, to take one of the following actions:

• close criminal proceedings;
• apply to the court with a petition to release a person from criminal liability;
• go to court with an indictment, a petition for the application of compulsory measures of a medical or educational nature.

A person may be in the status of a suspect up to a certain Art. 283 of the Criminal Procedure Code of Ukraine or until the notice of suspicion by the investigator by the judge is canceled in accordance with clause 10, part 1 of Art. 303 of the Criminal Procedure Code of Ukraine.

Therefore, if the prosecutor, contrary to Art. 283, paragraph 10, part 1 of Art. 284 of the Criminal Procedure Code of Ukraine does not close criminal proceedings, then the persons to whom the report of suspicion has been delivered are illegally in the status of suspects.

The grounds for canceling the suspicion are:

Groundlessness of suspicion (in practice, it is almost impossible to prove groundlessness).

Violation of the procedure for notification of suspicion (here judicial practice is 50 to 50, if indeed doomed by an inappropriate subject, or there is no evidence of service, the investigators of the judge cancel such notifications of suspicion).

Violation of the terms of stay of a person in the status of a suspect (at the time of publication of the article, there was no judicial practice, we will form it in the near future).