Estimation of the Term of Pre-Trial Investigation when Studying Its Materials: Theory and Practice

Abstract

The analysis of court judgements established that the courts of first instance and the courts of appeal interpret and apply the provisions of Clause 10, Part 1 of Article 284, Part 5 of Article 219 of the Criminal Procedure Code of Ukraine differently. There are court rulings concerning the inclusion of the time when the defendant party did not yet have actual possession of the pre-trial investigation materials, based on the procedure described in Article 290 of the Criminal Code of Practice of Ukraine, into the timeframe of the pretrial investigation. This means including the time when the actual access to the materials was limited, impossible, or obstructed in some way, even though formal access could be granted and the formal requirements of the procedural law were satisfied by the investigator or prosecutor. In other words there are some situations where the prosecution failed to provide the defense with proper opportunities and conditions for unobstructed study of the pre-trial investigation materials. This appears to be the reason why the prevailing opinion is that this period is not a part of the term allocated for studying the materials of the pre-trial investigation and cannot be deducted from the total term of the pre-trial investigation. There is also an opinion that this approach contradicts the provisions of Part 5, Article 219 of the Criminal Code of Practice of Ukraine, because from the moment of sending out the notification of completion of the pre-trial investigation to the defense, the time limit for the pre-trial investigation is put on hold to provide the defense with an opportunity to study the materials.For this reason, the author attempted to demonstrate that when calculating the term of the pre-trial investigation, it is important to consider not only the day of notification indicating the completion of the pretrial investigation (which is included in the duration of the term of the pre-trial investigation), but also the actual provision of access to the pre-trial investigation materials for studying. Sending a notification that includes the date, time, and location for such study is not a sufficient proof of providing an actual access. It would be more appropriate to consider sending such a notification as one of the items in the list of the procedural and organizational measures aimed at facilitating further scheduled access to the materials. In its turn, access and subsequent study encompass the opportunity to copy and/or examine documents or their copies, physical evidence or relevant portions, etc. And it is the real opportunity provided for taking such actions, mentioning the names of the materials concerning which the party is granted such an opportunity (because the parties, having a real opportunity for such actions, have a right to refuse to take the mentioned actions at the pre-trial investigation) that one party of the criminal proceeding is obliged to confirm to the other, and the injured party, a representative of a legal entity, in relation to whom or which the proceeding is conducted, is to confirm it for the prosecutor (Part 9, Article 290 of the Criminal Procedure Code of Ukraine).