ESSENCE OF THE SPECIAL PRE-TRIAL INVESTIGATION (IN ABSENTIA) IN THE CRIMINAL PROCEDURE

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ESSENCE OF THE SPECIAL PRE-TRIAL INVESTIGATION (IN ABSENTIA) IN THE CRIMINAL PROCEDURE

Journal Title: «Приватне та публічне право» - Year 2018, Vol 1, Issue

Abstract

The institute of special criminal procedure has been introduced into in the criminal process of Ukraine due the necessity of accomplishing the principle of inevitability of criminal punishment when dealing with the cases conducted in condition of suspect/defendant person absence. To meet this requirements person have be evading from the process by hiding abroad and be declared into an international search. Article 21 of European Convention on the International Validity of Criminal Judgments, 1970 envisages that unless otherwise provided in this Convention, enforcement of judgments rendered in absentia and of ordonnances pénales shall be subject to the same rules as enforcement of other judgments. However, the Law of Ukraine “On the ratification of European Convention on the International Validity of Criminal Judgments” (2002) had a clause that Ukraine would refuse to execute sanctions, passed in the absence of an accused person. This provision has been excluded in 2014 with the simultaneous introduction of the special criminal procedure (in absentia) in the legislation of Ukraine. The Criminal Procedure Code of Ukraine defined the exact list of felonies (with some specific exclusions) to be investigated within this instrument. The etymology of this category points on the necessity of its usage in reaction to the resistance to justice by discharging a defendant his or her duty to be personally involved in the process. However, during this procedure there is a higher risk to make a judicial mistake. That is why we have no common positive perception of this institute amongst the scientific and practical communities. At this moment special pre-trial investigation is more and more actively used in our country while still being on the stage of approbation. However, previously it was only exercised to persons, who sojourn beyond the state. Now investigative judges grant permissions on this instrument usage against persons who stay on the temporarily occupied territory of Ukraine or in the zone of anti-terroristic operation. Based on the statistics (as of September 2016) special pre-trial investigation has been conducted in 338 cases against 597 figurants. 307 accusation orders against 341 figurants have been transferred to court. 16 of them have passed through the trial process and ended up in sentences. This shows a certain effectiveness of the described instrument. Committee of ministers of the Council of Europe’s resolution (75) 11 “On the criteria governing proceedings held in the absence of the accused” (1975) gives us the guidelines to improve this institute. One of them is its unique character. That is the reason we do not positively assess the proposals of widening the list of felonies to the entire Criminal Code of Ukraine. Neither do we support introducing the regulation, according to which a defender can be interrogated instead of a defendant with further acknowledging of his statement as witness’s testimony. To summarize we note that special pre-trial investigation is a separate self-reliant institute of criminal procedure with specific conditions of its executing and special features. The question of maintenance of basic human rights while preforming the special pre-trial procedure is quite debating. Nevertheless, international juridical practice shows that this institute is useful from the point of effectiveness and simplification of criminal investigation.

Authors and Affiliations

О. І. Верещак

Keywords

special pre-trial investigation procedure by default in absentia evade from investigation and court special way of investigation simplified form of criminal procedure acceleration of criminal justice

EP ID EP589503
DOI -
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