Document from CIS Legislation database © 2003-2024 SojuzPravoInform LLC

RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of February 11, 2005 No. 2

About practice of application by courts of Ukraine the legislation which regulates return of criminal cases to additional investigation

For the purpose of ensuring the correct and identical application by courts of the procedural legislation which regulates return of criminal cases to additional investigation the Plenum of the Supreme Court of Ukraine DECIDES:

In other cases provided by the specified Article namely when there are bases for criminal prosecution of other persons concerning which separate consideration of the case is impossible, or for qualification of actions of the person accused under the article of the Criminal code of Ukraine (further - UK) which provides responsibility for more serious crime, or for presentation of charge to it which was not brought before, case can be returned on additional investigation only in the presence of the corresponding petition of one of the Codes of Criminal Procedure of participants of process called in the p. 2 of Art. 246.

3. The question of whether the violation of the law allowed in case of initiation of proceedings, implementation of inquiry or pretrial investigation, to its appointment to judicial review interferes is solved depending on that how essential it was to what infringement of the rights and interests of participants of process it led and whether there is opportunity to renew these rights and interests. Criminal case cannot be anyway appointed to judicial review if: it was not initiated or initiated by incompetent person; its investigation performed not authorized on that person or person who was subject to branch; requirements of the Code of Criminal Procedure about obligation of brining a charge and materials of investigation for acquaintance were violated; when implementing inquiry or pretrial investigation the right of the accused to defense or the right to use the native language or language which he knows, and the help of the translator was violated.

The violations of the law allowed when making separate investigative or legal proceedings which led to infringement of the rights and interests of participants of process which cannot be renewed cannot be the basis for return of case to additional investigation. In the presence of the corresponding bases such violations shall pull recognition of proofs inadmissible.

5. Return of case to additional investigation in connection with availability of the bases for qualification of actions of the person accused under the article of the Criminal Code which provides responsibility for more serious crime or for presentation of charge to it which was not brought before, is allowed only according to the petition of the prosecutor or victim or his representative.

The resolution of body of inquiry, the investigator, prosecutor on closing of criminal case regarding accusation of person in making of more serious crime or about refusal in initiation of the corresponding case, as well as the resolution concerning accusation amount, is not obstacle for return of case to additional investigation for these reasons.

6. The list of the bases for return of case to additional investigation provided in Art. 246 by the Code of Criminal Procedure from stage of preliminary consideration of case is exhaustive. Therefore the judge has no right to return case on additional investigation from this stage, for example, based on incompleteness of pretrial investigation or because the person accused after case referral in court disappeared and the place of its stay is unknown.

7. Recognize correct practice of those courts which in case of receipt before preliminary consideration of case of the petition for its return to additional investigation from one of the Codes of Criminal Procedure of participants of process called in the p. 2 of Art. 246 report about it to other participants of process.

8. Return of case to additional investigation from stage of judicial review of case is allowed only based on incompleteness or abnormality of pretrial investigation.

Wrong the pretrial investigation is recognized in case were incorrectly applied by bodies of pretrial investigation during the making of legal proceedings and adoption of proceeding decisions or is groundless regulations of the criminal and procedural or penal statute are not applied and without elimination of these violations case cannot be considered in court.

Draw the attention of courts that on contents of the current legislation the challenge and interrogation of new witnesses, conducting additional or repeated examinations, reclamation of documents, making court orders according to the procedure, the Code of Criminal Procedure provided in Art. 315-1, in confirmation or confutation of line items of the parties are allowed only according to the petition of the parties. At the same time the court gives court orders only for the purpose of check and refining of the actual data obtained during court investigation.

10. On contents of articles 246 and 281 Codes of Criminal Procedure return of case to additional investigation from stage of judicial review is possible both according to petitions of participants of process, and at the initiative of court. However the court cannot return on own initiative case on additional investigation when during its judicial review the bases for criminal prosecution of other persons, or the defendant - for other crime are established, or for increase in amount of accusation.

In the presence of the bases for qualification of actions of the person accused under the article of the Criminal Code which provides responsibility for more serious crime or for increase in amount of accusation case can be returned on additional investigation only provided that the prosecutor has no right to change accusation in court (the p. 2 of Art. 277 of the Code of Criminal Procedure and also when the victim or his representative consider that the bases for this purpose are, and the prosecutor does not see them.

11. Draw the attention of courts that their conclusions cannot be based on the evidence obtained with violation of procedural procedure for collection of the last and also on materials of pretrial investigation which are not checked in judicial session. Recognition by the person accused (the defendant or the convict) of the fault shall be comprehensively checked. In case of change by the defendant of the evidences given during pretrial investigation, the court shall find out the reason of it, carefully check all its indications and give them proper assessment.

13. Draw the attention of courts that the written petition for return of case to additional investigation needs to be filed, and oral - to enter in the protocol of judicial session.

Warning!!!

This is not a full text of document! Document shown in Demo mode!

If you have active License, please Login, or get License for Full Access.

With Full access you can get: full text of document, original text of document in Russian, attachments (if exist) and see History and Statistics of your work.

Get License for Full Access Now

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info

Effectively work with search system

Database include more 50000 documents. You can find needed documents using search system. For effective work you can mix any on documents parameters: country, documents type, date range, teams or tags.
More about search system

Get help

If you cannot find the required document, or you do not know where to begin, go to Help section.

In this section, we’ve tried to describe in detail the features and capabilities of the system, as well as the most effective techniques for working with the database.

You also may open the section Frequently asked questions. This section provides answers to questions set by users.

Search engine created by SoyuzPravoInform LLC.