Problem issues of evidence admissibility regarding misconduct after the expiration of pre-trial investigation terms

Abstract

The article notes that the criminal procedural law currently does not regulate and does not set the term of pre-trial investigation from the moment of entering data on a criminal offense into the Unified Register of Pre-Trial Investigations prior to the date of serving a person with a notice of suspicion of a criminal offense. At the same time, the Code of Criminal Procedure sets such term for crimes being publicly dangerous than misconduct involving more severe punishment. The systematic analysis of general provisions of the Code of Criminal Procedure gives reasons to be sure that the term of a pre-trial investigation of a criminal offense should not be unlimited and should not exceed the term of a pre-trial investigation of criminal offences. Based on the analysis of case law, this article proposes to address the issue of amending Article 219 of the Code of Criminal Procedure regarding the terms of a pre-trial investigation to extent the terms to six months prior to the date of serving a person with a notice of suspicion of committing a crime. The author proves that such term is necessary and sufficient for performing procedural actions and making procedural decisions. The article also gives examples of the defense’s response to evidence obtained by the pre-trial investigation body exceeding the terms set for minor crimes. That is if the case files shows that the investigator/prosecutor conducted a pre-trial investigation for more than 12 months prior to the date of serving a person with a notice of suspicion without filling a motion to extend the time limit with the investigation judge, the defense may respond as follows: during the pre-trial investigation – to fill a motion to close a criminal proceeding in accordance with clause 9, Article 284 of the Code of Criminal Procedure of Ukraine; during the preparatory court hearing – to fill a motion to close a criminal proceeding in accordance with sub-clause 10, clause 1, Article 284 of the Code of Criminal Procedure of Ukraine; during the consideration of a case on merits – to fill a motion to recognize evidence as obviously inadmissible in accordance with clause 2, Article 89 of the Code of Criminal Procedure of Ukraine. It is noted that such legislative changes and ways for defense’s response ensure that the pre-trial authorities comply with the principles of criminal proceeding within a reasonable time.