The dissertation at the monograph level considers theoretical and practical problems of legitimacy and validity of the judge’s decisions in preparatory proceedings.
The research investigates genesis of emergence, development and reforming of this stage of criminal procedure. The author has analyzed legislation of foreign states, inter alia, those included in the Commonwealth of Independent States (CIS), which adapted new criminal procedural codes after disintegration of the Soviet Union. It is proposed to use the experience of some of these countries (Republics of Belorussia, Moldova, Kazakhstan, Russian Federation) in improvement of the criminal-procedural legislation, which regulates the process of preparatory proceedings, namely to fix in the Criminal Procedure Code of Ukraine the exact list of issues to be solved by a court of law in preliminary consideration of the case.
The author makes a conclusion that preparatory proceedings are an independent part of criminal procedure, and not a constituent part of the judicial procedure stage in a court of first instance as it is determined in the Criminal Procedure Code of Ukraine of 2012.
It is defined that decisions in preparatory proceedings should correspond to the basic requirements set for all the decisions in criminal procedure, namely the requirements of legitimacy, validity and motivation.
The necessity to reform the procedure of completing pre-trial investigation has been proved, it is proposed to assign to investigative bodies the duties of systematization and processing the materials of pre-trial investigation, compiling an indictment, in which the prosecution should give deep and logical analysis of the collected evidence, and the defense, in case it does not agree with the indictment, should be provided with the opportunity to compose a motivated defensive statement, and investigative bodies should be obligated to present all pre-trial investigation materials to court.
The research provides a classification of the decisions made by the judge in preparatory proceedings, considers legal qualities of the judge’s decisions dealing with return of the indictment to the prosecutor, approval of deals in criminal proceedings, defining jurisdiction, possibility to suspend proceedings due to illness or search for the accused, scheduling judicial consideration of the case on the merits.
The author substantiates the necessity to extend the court’s powers in preparatory proceedings, namely: to provide the court with the right to initiate making decisions to prolong, change, revoke a constraint measure; to appoint a forensic examination; to return the indictment to the prosecutor in case of erroneous definition of the accused person’s actions.
As item 6, part 1, article 303 of the Criminal Procedure Code of Ukraine envisages possibility in preparatory proceedings to appeal against actions or omissions to act by an investigator or a prosecutor which concern safety of the participants in a procedure, and the Criminal Procedure Code of Ukraine of 2012 does not contain norms, regulating the grounds and rules ensuring such measures, the dissertation substantiates the necessity to supplement the Criminal Procedure Code of Ukraine with paragraph 7 of chapter 3 “Ensuring safety of the persons taking part in criminal procedure”.
The research determines that data referring to the person of the suspect/accused should be collected and studied by the investigator in pre-trial investigation which is his duty and is included in the subject of proof, envisaged by item 4, part 1, article 91 of the Criminal Procedure Code of Ukraine, and not a probation body, created for social adaptation of the already convicted persons. Attaching to the case the conclusion of a probation body before trial violates the right of the accused to defense. That is why it is proposed to eliminate item 6, part 3, article 314 and article 314-1 from the Criminal Procedure Code of Ukraine, and part 1, article 6 from the Law of Ukraine “On probation”.
