THE PROBLEMATIC PROVISIONS OF THE INSTITUTE OF THE SPECIAL CRIMINAL PROCEEDING IN UKRAINE

Abstract

The article deals with a number of controversial issues of legal regulation and maintenance of the institute of special criminal proceeding. Special attention was paid to the grounds for the special pre-trial investigation and special judicial process, in particular, regarding the announcement of the suspect/accused. The Draft Law «On Amendments to the Criminal Procedure Code of Ukraine on the Improvement of Certain Provisions in connection with the Special Pre-trial Investigation» No. 2164, which proposes to base a special pre-trial investigation on the manhunt, is considered. Attention is drawn to the fact that a regional (state) search may be admissible (among others) for a special pre-trial investigation only against a person hiding in Ukraine in the territory of an anti-terrorist operation or an operation, initiated by the Joint forces. The need to provide for a retrial in the court of fi rst instance has been proved, considered that the defendant is brought to trial in absentia after the sentencing, possibly by analogy, of Part 4 of Art. 323 of the Criminal Procedure Code of Ukraine, and on the basis of a duly substantiated request by the accused, which would ensure compliance with EU convention standards. It is noted that such a procedure should be procedurally diff erent from the procedure of appeal against court decisions made following the results of a special court hearing. Emphasis is placed on the contention that granting the right to grant special pre-trial investigations to prosecuting authorities (as well as extending the authority of the prosecutor’s offi ce in this matter otherwise) may be an additional risk factor for malpractice and an unjustifi ed restriction of the suspect’s rights since confl icting interests in criminal proceedings.