УДК 343.133.3 PDF
ORCID: 0000-0002-0923-2663
DOI 10.37566/2707-6849-2021-1(34)-13
Anatolii CHERNENKO,
Associate Professor, Department of Criminal Law, Dnipropetrovsk State University of Internal Affairs,Candidate of Law Sciences, Associate Professor
Anatolii SHIYAN,
Senior Lecturer, Department of Criminal Law, Dnipropetrovsk State University of Internal Affairs
REGARDING THE POSSIBILITY FOR THE PROSECUTOR TO CARRY OUT PROCEDURAL ACTIONS IN CASE THE COURT RETURNS THE INDICTMENT
The article examines the possibility of the prosecutor to carry out procedural actions after the court of first instance returns the indictment from the preparatory court hearing, petitions for the application of coercive measures of medical or educational nature, if they do not meet the requirements of the CPC of Ukraine.
Analysis of the grounds for returning these procedural documents for revision shows that they are different in nature. Some of them are of a formal nature (the date and place of drawing up these documents are not specified, the signatures of the investigator and the prosecutor are not placed, etc.). The formal grounds for returning the indictment and other documents mentioned above do not create any difficulties for the prosecutor in correcting them: they eliminate them, after which these documents are again sent to the court of first instance. Simultaneously, the grounds for returning these procedural documents for revision may be with more serious shortcomings (the accusation formulated by the investigator is vague, there are no established circumstances that aggravate or mitigate the punishment, etc.). When the court determines other grounds for their return, the prosecutor's decision on these grounds is more difficult. And the main problem is the possibility of conducting investigative (search) and other procedural actions to correct the shortcomings in these documents.
It is concluded that the Ukrainian criminal procedure legislation does not contain a mechanism for regulating this issue, and the case law and opinions of lawyers are not unanimous and are often contradictory. Due to these and other reasons, this problem continues to exist today, creating discomfort in the activities of both prosecutors and courts of first and second instance.
The arguments presented in the article substantiate the right of the prosecutor, if necessary, to conduct the necessary investigative (search) and other procedural actions to correct the identified deficiencies in these procedural documents.
To fill the current legal gap on this issue, to eliminate differences in its resolution by judicial authorities and prosecutors, it is proposed to make appropriate additions to the provisions of paragraph 3 of Part 3 of Article. 314 of the Criminal Procedure Code of Ukraine.
Keywords: pre-trial investigation, indictment, court of first instance, preparatory court session.
References
Criminal Procedure Code of Ukraine. Information of the Verkhovna Rada of Ukraine. 2013. № 9–10, № 11–12, № 13. Art. 88. [ukr.]
Lehkykh K. V. Use of the shortcomings of the indictment by the defense. Indictment as a form of criminal action. URL: bnc.in.ua/.../430-vikoristannya-nedolikiv-obvinuvalnogo-akta-storonoyu- zakhistu-obvinuvalnij-akt-yak-forma-kriminalnogo-pozovu.html [ukr.]
Babayeva O. V. Some issues are the return of the indictment by the court to the prosecutor. URL: http://dspace.nlu.edu.ua/handle/123456789/11105 [ukr.]
Hlynnyanyy O. V. Return of the indictment to the prosecutor: problematic issues. URL: https://doi.org/10.32842/2078-3736/2020.2-3.15 [ukr.]
Takhtarov M. P. Prosecutor in preparatory court proceedings: Dis. … Cand. jurid. Science: 12.00.09. Kharkiv, 2019. 229 p. URL: http://nauka.nlu.edu.ua/download/diss/Tahtarov/d_Tahtarov.pdf [ukr.]
Ivanov A. P. Problematic issues when returning the indictment to the prosecutor. URL: https://sud.ua/.../106023-problemni-pitannya-pri-povernenni-obvinuvalnogo -aktu-prokuroru [ukr.]
Decision of the Court of Appeal of the Lviv region of the court № 73776167 of 20.04.2018 in the case № 461/3472/17 URL: https://youcontrol.com.ua/catalog/court-document/73776167/ [ukr.]
Ponomarenko D. V. Return of the indictment. Grounds and procedural significance. URL: http://blog.liga.net/user/ponomarenko/article/21285.aspx. [ukr.]
Symonenko Z. Theoretical possibilities of resumption of pre-trial investigation after the return of the indictment to the prosecutor. URL: http://uba.ua/documents/presentation/11 03 2016 / [ukr.]
Ivanets A. “The show must go on”, or why the end of the pre-trial investigation is not always final. URL: https://yur-gazeta.com/.../the-show-must-go-on-abo-chomu-zakinchennya-dosudovogo-rozsliduvannya-ne-zavzhdi-e-ostatochnim.html [ukr.]
On the procedure for conducting preparatory court proceedings in accordance with the Criminal Procedure Code of Ukraine: letter Vyshch. specialization. Court of Ukraine for Civil Cases. and crime. cases dated 03.10.2012 № 223–1430 / 0 / 4–12. URL: http://zakon4.rada.gov.ua/laws/show/ v1430740–12 [ukr.]