POSSIBLE ABUSE OF THE PARTY OF THE ACCUSATION DURING THE SUSPENSION OF THE PRE-TRIAL INVESTIGATION

 In its practice, the law firm "PRIKHODKO AND PARTNERS" often encounters an artificial suspension of the pre-trial investigation in criminal proceedings by the prosecution. The prosecutor or investigator, in agreement with the prosecutor, on the basis of Article 280 of the Criminal Procedure Code of Ukraine, shall issue resolutions on the suspension of the pre-trial investigation in criminal proceedings.

 The pre-trial investigation may be suspended after notifying the person of the suspicion in the following cases:

• the suspect has contracted a serious illness that prevents him from participating in criminal proceedings, provided that this is confirmed by an appropriate medical opinion;
• wanted by the suspect;
• the investigating judge denied the request for a special pre-trial investigation;
• there is a need to perform procedural actions within the framework of international cooperation.

 One of the most common practices of abuse of procedural rights by investigators is the issuance of unreasonable and unfounded decisions to suspend the pre-trial investigation, due to the need for procedural actions in the framework of international cooperation. Consider this basis in practice.

 The need for procedural action in the framework of international cooperation, in most cases, means that the prosecution sends requests to foreign states for international legal assistance in criminal proceedings.

 How exactly do the investigator (prosecutor) abuse their rights during the suspension of the pre-trial investigation?

 Part 4 of Article 280 of the Criminal Procedure Code of Ukraine stipulates that a pre-trial investigation is terminated by a reasoned decision of the prosecutor or investigator in agreement with the prosecutor, information on which is entered into the Unified Register of Pre-trial Investigations.

 In this case, in accordance with Part 5 of Article 110 of the Criminal Procedure Code of Ukraine, the prosecutor's decision consists of a motivating part, which must contain information about:

• the content of the circumstances that are grounds for the decision;
• the reasons for the decision, their justification and reference to the provisions of this Code.

 In practice, the investigator, ignoring these provisions, in his decision makes a formal reference to paragraph 3 of part 1 of Article 280 of the Criminal Procedure Code of Ukraine, does not justify the need for a request for international cooperation to the competent authorities of foreign countries, does not explain why it sends requests to resolution.

 The next thing to focus on is that the procedure of international cooperation in criminal proceedings is regulated by both national law and international law. Chapter 43 of the Criminal Procedure Code of Ukraine and the European Convention on Mutual Assistance in Criminal Matters of April 20, 1959 define specific requirements for a request. As a rule, the investigator does not indicate what requests and on what grounds were sent to foreign states, therefore, it is impossible to verify whether the request was sent in accordance with the procedure for international cooperation to bodies recognized as a judicial body for the purposes of the Convention.

 Given the fact that the prosecution does not specify on the basis of which the requests are sent, does not indicate the amount of legal assistance that the pre-trial investigation body intends to receive from the competent authorities of foreign countries, does not specify what procedural actions under Ukrainian law must be performed by the competent authorities. foreign states, and finally, does not indicate information that confirms the direction of the relevant requests to the competent authorities in the framework of international cooperation, the decision of the investigator to suspend the pre-trial investigation can not be considered motivated and consistent with procedural law.

 A similar position was taken by the investigating judge of the Pechersk District Court of Kyiv in the decision of 27.05.2020 in case №757 / 15235/20-k.

 What should the defense do if the pre-trial investigation is unjustifiably suspended?

 The defense party must immediately appeal to the investigating judge to appeal the investigator's decision on the basis of paragraph 2 of part 1 of Article 303 of the Criminal Procedure Code of Ukraine.

 The complaint must be filed within 10 days of the defense receiving a copy of the decision to suspend the pre-trial investigation.

 Taking into account the typical abuse of the investigator and prosecutor in suspending the pre-trial investigation on the basis of paragraph 4 of part 1 of Article 280 of the Criminal Procedure Code, we note the main arguments for appealing this decision:

• the investigator's decision was made in violation of Part 4 of Article 280 and Part 5 of Article 110 of the Criminal Procedure Code of Ukraine (the need for proper motivation to decide to suspend the pre-trial investigation);
• the absence of references in the investigator's decision to the relevant articles of current legislation on the basis of which international cooperation is carried out;
• failure of the prosecution to provide evidence of requests for international legal assistance in criminal proceedings;
• not specifying the amount of legal assistance that the pre-trial investigation body intends to receive from the competent authorities of foreign states.

 The investigating judge is obliged to consider this complaint against the investigator's decision to suspend the pre-trial investigation within 72 hours of its receipt by the court. Based on the results of the complaint, the investigator decides either to cancel the decision of the investigator or prosecutor, or to refuse to satisfy the complaint.

 So, as we can see, there are ways to counter the abuse by the prosecution in stopping the pre-trial investigation. However, in order to develop a successful action plan to avoid such abuses, it is necessary to seek professional legal assistance from specialists.