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Such a case is resolved in the manner prescribed by Art.

Such a case is resolved in the manner prescribed by Art.

In case of refusal to initiate a criminal case, the same terms shall apply as in the case of its initiation. Practice shows that mistakes in refusing to initiate a criminal case are often made in a hasty decision. The decision to refuse to initiate a criminal case must be made within the time limits established by law for making such a decision.

According to Art. 99 of the CPC in the absence of grounds for instituting a criminal case, the body of inquiry, prosecutor, investigator or judge by its decision refuses to initiate a criminal case, as notified by interested persons, enterprises, institutions and organizations.

If the examination of the application or notification received does not establish grounds for initiating a criminal case, but the inspection materials contain information about the presence of an administrative or disciplinary offense or other violation of public order, the inquiry body, investigator, prosecutor, judge may refuse in initiating a criminal case, send an application or notification for consideration to a public organization, juvenile service, staff or owner of an enterprise, institution, organization or its authorized body to take appropriate measures of influence or submit materials for the application of administrative sanctions.

An exhaustive list of grounds and conditions under which a criminal case may be refused is given in Art. 6 of the CCP. Refusal to initiate a criminal case on other grounds (for example, because the stolen property was poorly guarded or because the victim could not name the perpetrators) is illegal.

Cases of crimes under Art. 125, part 1 of Art. 126 of the Criminal Code of Ukraine (intentional minor bodily injury, beatings and slaughter), as well as Art. 356 of the Criminal Code of Ukraine (arbitrariness) regarding actions that harm the rights and legitimate interests of individual citizens, are violated only on the complaint of the victim, who should in this case to support the accusation. In these cases, inquiries and pre-trial investigations are not conducted. These cases are subject to closure if the victim reconciles with the accused, the defendant. Reconciliation can only take place before the court is removed to the deliberation room for sentencing.

Circumstances precluding the possibility of instituting criminal proceedings

The prosecutor, the investigator, the inquiry bodies and the judge refuse to initiate a criminal case not only in the absence of grounds for its initiation, but also in the presence of circumstances that preclude proceedings in the case.

The list of circumstances that preclude criminal proceedings is contained in Art. 6 of the Criminal Procedure Code of Ukraine.

A criminal case may not be initiated, and the initiated case shall be closed:

in the absence of a crime; in the absence of corpus delicti in the act; as a result of an act of amnesty, if it eliminates the application buy lab report writing online of punishment for the act, as well as in connection with the pardon of individuals; in respect of a person who has not reached the age of 11 at the time of committing a socially dangerous act; on reconciliation of the defendant with the victim in cases initiated only on the complaint of the victim, except for the cases provided for in parts 2, 3 and 4 of Art. 27 KISH; in the absence of a complaint of the victim, if the case can be initiated only on his complaint, except in cases where the prosecutor has the right to initiate proceedings and in the absence of a complaint of the victim (Part C of Article 27 of the CPC); in respect of the deceased, except in cases when the proceedings are necessary for the rehabilitation of the deceased or the reopening of the case in respect of other persons in newly discovered circumstances; in respect of a person subject to a conviction on the same charge that has entered into force, or a court ruling or ruling to close the case on the same grounds; in respect of a person about whom there is an irrevocable decision of the body of inquiry, investigator, prosecutor to close the case on the same charge, except in cases where the need to initiate a case is recognized by the court in which the criminal case (Articles 276 and 278 CPC); if the refusal to initiate a case on the same fact is an irrevocable decision of the body of inquiry, investigator, prosecutor, except in cases where the need to initiate the case is recognized by the court in which the criminal case (Articles 276 and 278 CPC).

If the circumstances specified in paragraphs 1, 2 and 4 of Art. 6 of the CPC, are at the stage of trial, the court brings the case to an end and in cases where the case is closed in the absence of a crime and in the absence of corpus delicti, issues an acquittal, and in cases of amnesty – a conviction of release of the convict from punishment.

Closing the case on the grounds of an amnesty act, as well as in connection with a pardon is not allowed if the accused objects. In this case, the proceedings continue as usual.

If there are sufficient grounds to believe that a socially dangerous act was committed by a person who has reached 11 years of age, but before reaching the age from which the law provides for criminal liability, a criminal case is instituted on the fact of this act … Such a case is resolved in the manner prescribed by Art. 78 of the CCP.

Circumstances that by law preclude the initiation of a criminal case, in essence, can be systematized and divided into four groups.

The first group contains grounds stating that the crime was not committed, namely: the absence of a crime, the absence of corpus delicti, the person’s failure to reach the age of socially dangerous act, at which criminal liability is possible.

The second group covers the grounds that entail the refusal to initiate a criminal case in view of other circumstances that lead to the release of a person from criminal liability and punishment. A person is released from criminal liability in view of the act of amnesty, which eliminates the punishment for the crime committed by him, or in connection with pardon, as well as in case of death.

The third group consists of the grounds that entail the refusal to initiate a criminal case in view of the lack of will of the victim to bring the perpetrator to justice. Here the refusal to initiate a case takes place in the absence of a complaint of the victim, if the case is subject to initiation only on his complaint, or on reconciliation of the victim with the accused in this category of cases (paragraph 6 of Article 6 of the CPC of Ukraine).

The fourth group combines the grounds that it is impossible to re-investigate the facts concerning the actions of persons in respect of whom the competent state authorities have made a decision. These include the following grounds: the existence of a sentence that has entered into force, or a court decision or ruling to close the case on the same grounds, the presence of a decision of the investigating authority or prosecutor to close the case on the same charge (paragraphs 9-10 of Article 6 of the CPC).

The absence of a crime (paragraph 1 of Article 6 of the CPC) is a ground for refusing to initiate a criminal case in cases where there was no crime at all, which was indicated in the reasons and grounds that were the basis for the criminal case, ie the reason took place (for example, a statement or message published in the press), but not confirmed when checking the grounds (signs) of the crime.

An example of the absence of a crime scene is the following situation: the police in one of the districts of the Zhytomyr region received a statement about the murder of B.’s mother-in-law by a neighbor. The statement stated that the applicant had seen in the window of her house how B. had punched the victim in the face, knocked her to the ground and then struck her with a pitchfork. During the inspection, it became clear that the victim had disappeared from the house, and B. and his wife could not answer where she was. B. did not deny that in a state of intoxication he hit his mother-in-law and she fell to the ground, and when he walked away from her, he grabbed the pitchforks, picked them up, pushed them into the ground, and then went to bed. A criminal case was opened against B. on charges of murder. However, three weeks later it became clear that the victim lived with her son in another area, where she went on foot, offended by the behavior of her son-in-law. The case was terminated under paragraph 1 of Art. 6 of the CCP.

When refusing to initiate a criminal case, it is necessary to clearly distinguish the absence of a crime from the absence of corpus delicti in the act.

If the event of the crime is not established, then the question of the signs of the crime does not arise.

It is necessary to distinguish the specified circumstances and in those cases when the event or the fact took place, but they are not result of illegal actions of any person. The causal link between actions and consequences should be checked; in the absence of a causal link – a refusal to initiate a criminal case in the absence of a crime, and not in the absence of corpus delicti.

Absence of corpus delicti in the act (paragraph 2 of Article 6 of the CPC) is the most common ground for refusing to initiate a criminal case. Refusal to initiate a criminal case on this basis should take place only in cases where there is no doubt in the absence of corpus delicti. It is impossible to refuse to initiate a criminal case under paragraph 2 of Art. 6 of the CPC due to the fact that all the signs that allow to conclude that the presence of a crime in a particular act is unknown. Refusal to initiate a criminal case should take place in cases where all the signs of a certain act are known and there is no corpus delicti in it.

This ground is used when it is established that the event took place, was the result of an act committed by a person (action or inaction), but in itself is not a crime, because:

there is at least one of the elements of the crime (object, objective side, subject, subjective side); there are circumstances that exclude the public danger of the act. These include: necessary defense and extreme necessity (Articles 36 and 39 of the Criminal Code of Ukraine).

Necessary defense is considered to be actions taken to protect the legally protected rights and interests of the protected person or another person, as well as public interests and the interests of the state from socially dangerous encroachment by causing harm to the offender, necessary and sufficient in a given situation. immediate deterrence or cessation of encroachments, if it was not allowed to exceed the limits of necessary defense (Part 1 of Article 36 of the Criminal Code of Ukraine).

When deciding on the initiation of a criminal case in such cases, first of all there is a need to distinguish the state of self-defense from exceeding its limits.