| Article | Challenging Issues of Pre-Trial Investigation Term Extension by Investigating Judge |
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| Authors | YURI ALENIN, OLGA MALAKHOVA |
| Name of magazine | Legal journal «Law of Ukraine» (Ukrainian version) |
| Issue | 8 / 2018 |
| Pages | 60 - 71 |
| Annotation | Having introduced judicial control over extension of the pre-trial investigation term as an enhanced guarantee of rights, freedoms and legitimate interests of participants to criminal proceedings, the legislator left unresolved a number of issues pertaining to legal regulation exercised when a respective procedural decision is made, and this entails certain contradictions in the administration of law activities. The purpose of the article is to develop the proposals for improving the procedure of pre-trial investigation term extension by investigating judge through the prism of ensuring the balance of public and private interests. The authors have established that the regulatory uncertainty resulted in the contradictory court practice regarding investigating judge’s powers to hear on the motion to extend the pre-trial investigation term without a respective preliminary extension of the term by prosecutor. The article provides rationale for the need to give more specifically in Art. 294 of the Code of Criminal Procedure of Ukraine (hereinafter – the CCrP of Ukraine) the cases when the prosecution files the motion requesting pre-trial investigation term extension to investigating judge in the context of the investigator’s, prosecutor’s right to submit a respective motion to investigating judge, without prior extension of the term in the manner prescribed by cl. 1, Part 3, Article 294 of the Code of Criminal Procedure of Ukraine. As the authors have found, in the administration of law activities a point at issue is the capability of investigating judge to extend the preliminary investigation term to three months, in case the prosecution fails to prove that a longer period is needed. It is noted that it would be expedient in Article 294 of the CCrP of Ukraine to provide a more specific definition of the powers enjoyed by investigating judge based on the results of hearing on the motion to extend the pre-trial investigation term, with due regard for the provisions of Article 114 of the CCrP of Ukraine. The authors note that there is a need in Article 295-1 of the CCrP of Ukraine to determine the procedure for notification of suspect, defense counsel about the motion to extend the pre-trial investigation term submitted to investigating judge. It is established that investigating judges in a different manner decide on hearing on the motion to extend the pre-trial investigation term in case of default of appearance by the parties to criminal proceedings. The authors provide rationale for the expediency of a differentiated approach to the consequences of default of appearance by the parties to criminal proceedings in cases when they should participate in hearing on the motion to extend the pre-trial investigation term. Based on the research findings, it is proposed to make changes and additions to Art. 294 and Art. 295-1 of the CCrP of Ukraine, which will facilitate the implementation of the fundamental principles of criminal proceedings in deciding on the term of pre-trial investigation.
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| Keywords | pre-trial investigation term; extension of pre-trial investigation term; investigating judge; prosecutor; the prosecution |
| References |
List of legal documents
Legislation
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| Electronic version | Download |