ПРАВОВЕ РЕГУЛЮВАННЯ ТА ПРАКТИКА РЕАЛІЗАЦІЇ ВИСУНЕННЯ ПРОКУРОРОМ ДОДАТКОВОГО ОБВИНУВАЧЕННЯ

Abstract

In the article, based on the analysis of the domestic criminal procedural law, the study of case law materials, as well as the assessment of doctrinal opinions, a research concerning bringing an additional charge by the prosecutor is carried out. It is argued that a general precondition for bringing an additional charge is the approval of such a legal position of the prosecutor by the prosecutor of a higher level. It is concluded that the special conditions for bringing an additional charge by the prosecutor include: obtaining information during the trial, such information indicates the possible commission of another criminal offense by the accused, no pre-trial investigation was conducted regarding such criminal offense, and the person was not informed of the suspicion and the indictment in relation to it did not go to court, such a criminal offense is closely related to the original one and their separate consideration is impossible. It is substantiated that the close connection of the new criminal offense with the original one means that the components of these criminal offenses must have common features. It is said about a criminal offence, the composition of which is related, the separate consideration of which may negatively affect the comprehensiveness and completeness of the investigation of the circumstances of the criminal proceedings and their verification by evidence. Failure to comply with at least one of the special conditions for the prosecutor to bring an additional charge causes the court to refuse to adjust the scope of the trial. Attention is drawn to the fallacy of the legal regulation of bringing an additional charge, initiating proceedings against a legal entity, using the prosecutor’s discretionary powers. In the described in Part 1 of Art. 339 of the Criminal Procedure Code of Ukraine, the prosecutor does not "have the right" in this situation, but is obliged to apply to the court with a reasoned request for consideration of an additional charge and/or initiation of proceedings against a legal entity. The procedure for bringing an additional charge by the prosecutor does not indicate the need for the prosecutor to file information about "another criminal offense" into the Unified Register of Pretrial Investigations. A new examination of evidence, already examined by the court before the additional charge was issued, is carried out only if the court recognizes this necessity. Instead, a new examination of evidence, already examined by the court before the start of proceedings against a legal entity, is carried out at the request of the representative of such a legal entity only if the court recognizes this necessity. This shows the implementation of the principle of procedural economy. There is no need to re-examine evidence that has already been the subject of the trial, as such evidence is the basis not only for the primary charge, but also for the additional charge. However, the possibility of a new examination of evidence remains. It depends on the initiative of the court (in the case of an additional charge by the prosecutor) and the representative of the legal entity (in the case of initiation of proceedings against the legal entity), provided that the court recognizes this necessity. Bringing an additional charge is defined as the activity of the prosecutor to incriminate the accused with an independent charge, in agreement with the prosecutor of a higher level, on the basis of receiving during the trial information indicating the possible commission of another criminal offense by the accused, in relation to which no pre-trial investigation was conducted, the person was not informed about suspicion and the indictment in relation to it was not sent to the court and if the composition of this criminal offense has common features with the primary one.