Volume 11 - Issue 55
/ July 2022
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DOI: https://doi.org/10.34069/AI/2022.55.07.10
How to Cite:
Bobechko, N., & Maksymyshyn, N. (2022). Termination of pre-trial investigation due to a serious illness of the suspect (accused) in
the criminal procedure of Ukraine and some European states. Amazonia Investiga, 11(55), 97-106.
https://doi.org/10.34069/AI/2022.55.07.10
Termination of pre-trial investigation due to a serious illness of the
suspect (accused) in the criminal procedure of Ukraine and some
European states
Зупинення досудового розслідування з огляду на тяжку хворобу підозрюваного
(обвинуваченого) у кримінальному процесуальному праві України та деяких
європейських держав
Received: July 30, 2022 Accepted: September 5, 2022
Written by:
Nazar Bobechko45
https://orcid.org/0000-0001-9304-3170
Web of Science ResearcherID
GPC-8023-2022
Nataliya Maksymyshyn46
https://orcid.org/0000-0003-1555-5220
Web of Science ResearcherID
GPK-1316-2022
Abstract
The aim of the article is to study the legal
regulations, doctrinal approaches to the
understanding of mental disorder or another
serious disease of the suspect (accused) as a
reason for stopping the pre-trial investigation in
the criminal procedural law of European
countries, and also the development and
justification of the proposal, directed for the
improvement of the regulation of such reasons in
the criminal procedural law of Ukraine. The
methodological grounds of the research
constitute general scientific and special legal
methods, in particular dialectical, method of
analysis, method of generalization, structural and
functional method, hermeneutical method,
dogmatic method, comparative legal method. We
analyze one of the reasons for stopping the pre-
trial investigation – mental disorder or another
serious disease of the suspect (accused).
Analyzing the corresponding legal acts of the
CPC of Ukraine and European countries, the
views of researchers, we provide our views on
the questions of the research topic, and give
suggestions on the improvement of the criminal
procedural law of Ukraine. The signs of mental
disorder of the suspect (accused) have been
45
Dr. Sc. (Law), Professor, Professor of the Department of Criminal Procedure and Criminalistics, Ivan Franko National University
of Lviv, Ukraine.
46
PhD (Law), Associate Professor of the Department of Criminal Procedure and Criminalistics, Ivan Franko National University of
Lviv, Ukraine.
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clarified, the criteria of the serious somatic
symptom disorder as a reason for stopping the
pre-trial investigation have been singled out. A
new version of P. 1 Ch. 1 Art. 280 of the CPC of
Ukraine has been proposed.
Keywords: criminal procedural law, stopping
(suspension) of the pre-trial investigation,
suspect (accused), mental disorder, serious
somatic symptom disorder.
Introduction
The society predominantly associates the words
“criminal law” and “criminal procedure” with a
criminal offence that has been committed, with a
perpetrator who should be found and punished
(Meikališa & Strada-Rozenberga, 2018). After
having been started, the pre-trial investigation,
directed to achieving the goals of criminal
proceedings, must be brought to a logical
conclusion. However, during the pre-trial
investigation certain circumstances sometimes
appear which prevent the continuation and end of
the criminal proceedings. It would appear that if
the fact of committing a criminal offense is
established, then there cannot exist any delays for
the comprehensive, complete and impartial pre-
trial investigation. However, in real life this is not
always the case. The circumstances, which are
meant here, are connected with the temporary
obstacle in the implementation of criminal
proceedings, in particular with the impossibility
of the suspect (accused) to take part in such a pre-
trial investigation. Such circumstances make up
the content of the grounds for stopping the pre-
trial investigation.
The grounds for stopping the pre-trial
investigation constitute circumstances confirmed
by the totality of evidence, which are provided
for in the criminal procedural law and which
temporarily prevent the continuation and end of
the pre-trial investigation.
It is worth mentioning that in the Polish doctrine
of the criminal proceedings the circumstances
which make up the grounds for the suspension of
the criminal proceedings are treated as such that
not only prevent the continuation of the
proceedings, but make its course impossible
(Waltoś, 1970; Rodzoch, 2017). Instead, in the
Ukrainian criminal procedural law, law
enforcement practice and science of criminal
procedure only the circumstances that make
criminal justice impossible are considered as the
grounds for the closure of criminal proceedings.
The termination of the pre-trial investigation
leads to unfavorable consequences. Indeed, the
termination of the pre-trial investigation results
in the fact that its normal development and
course is disturbed, the restoration of the violated
rights of participants in criminal proceedings is
delayed. This affects the quality and
effectiveness of the criminal proceedings in
general. The termination of the pre-trial
investigation has also negative consequences of
the mental nature. The natural processes which
occur in the memories of the witnesses and
victims lead to forgetting of some details of the
committed criminal offense, which surely affects
the completeness and depth of establishment of
the subject of proof. On the other hand, the
opinion about the helplessness of law
enforcement agencies is increasing in society, the
authority of the law enforcement agencies
decreases. With this in mind, the legislator must
introduce effective procedural means which
would decrease (neutralize) negative effects of
the fact of termination of the pre-trial
investigation, and provide for successful
overcoming of obstacles that led to such a
decision. The doctrine of the criminal process is
supposed to help the legislator to accomplish this
task.
The article answers the questions about the
regulation of such ground for the termination of
the pre-trial investigation as mental disorder or
other serious disease of the suspect (accused) in
the criminal procedural law of Ukraine, whether
it is consistent with the approaches established in
the criminal procedural law of some European
countries and which are the doctrinal positions on
the essence of such ground for the termination of
the pre-trial investigation.
Literature Review
The problems of termination of pre-trial
investigation, in particular mental disorder or
another serious disease of the suspect (accused)
as the ground for making such a decision, were
Bobechko, N., Maksymyshyn, N. / Volume 11 - Issue 55: 97-106 / July, 2022
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considered in the works of Ada Famiglietti, Jan
Kudrelek, Inka Rodzoch, Stanisław Waltoś,
Mykola Shumylo, Liudmyla Dunaievska, Olena
Kozeratska. Scientific ideas, theoretical
provisions and recommendations which were
formulated in their works were reflected in
legislation and positively perceived by law
enforcement practice.
Stanisław Waltoś (1970) researched the matter of
disease duration of the suspect as the ground for
termination of criminal proceedings. The author
justifies that the language unit “duration” means
that the suspect would be ill for an indefinite
period of time or during the period that is larger
than the maximal term of pre-trial investigation.
On the other hand, Jan Kudrelek (2004) rightly
noted that the termination of pre-trial
investigation based on the mental disorder of the
suspect may be possible only in the case when
mental dysfunction occurs after the suspect
commits a criminal offense. The researcher
rightly attributed the impossibility of the
suspect's participation in criminal proceedings as
the ground for termination of pre-trial
investigation to the signs of a mental disorder of
the suspect. Instead, Inka Rodzoch (2017)
arrived at the conclusion that the use of the term
“another serious disease of the suspect” by Polish
legislators provides for an opportunity to
differentiate it from mental disorder and to affirm
that somatic symptom disorder of the suspect was
meant in this case. She argued that unlike in the
case of mental disorder, doubts in the somatic
health of the suspect should not require
certification of the fact of the disease by the
expert’s conclusion.
Ada Famiglietti (2014, 2018) emphasized that in
order to terminate criminal proceedings it is not
enough only to prove the mental disorder of the
accused. It is also necessary for the accused to be
in the state which makes it impossible for him to
understand what is happening all around, and
such a state prevents the accused from self-
defense. The researcher pointed out that the
aforementioned can be expanded also to somatic
symptom disorders in the case when they are
reflected on the psyche of the accused in a way
that excludes the possibility to consciously
participate in the criminal proceedings.
Mykola Shumylo, Liudmyla Dunaievska and
Olena Kozeratska (2019) made a distinction
between the terms “mental disorder” and “mental
disability”. They arrived at the conclusion that
mental disability constitutes a deviation from
normal mental development, that includes speech
disorders, emotional and volitional sphere,
mental development and limits the total
intellectual activity of a person. Instead, mental
disorder is always connected with the lack of the
ability of a person to realize the meaning of their
actions and control them. It is the mental disorder
that is the ground for the termination of the pre-
trial investigation.
Methodology
The methodological basis of this article is the
dialectical approach to the scientific knowledge
of social phenomena. While writing this article,
we have also used general scientific and special
legal methods of knowledge: the analysis, which
was used to determine the drawbacks of legal
regulations of mental disorder or another serious
disease of the suspect (accused) as ground for the
termination of pre-trial investigation in the
criminal procedural law of Ukraine);
generalization, which was used to form new
scientific approaches to understanding mental
disorder of the suspect (accused) as ground for
the termination of pre-trial investigation);
structural-functional method, which made it
possible to find out the signs of mental disorder
as ground for the termination of pre-trial
investigation; hermeneutical method, which was
used to interpret the essence of the serious
somatic symptom disorder as ground for the
termination of pre-trial investigation; dogmatic
or special legal method, which was used to study
scientific approaches to understanding mental
disorder or another serious disease of the suspect
(accused) as ground for the termination of pre-
trial investigation; comparative legal method,
which made it possible to compare norms
regarding regulations of such ground for the
termination of pre-trial investigation as mental
disorder or another serious disease of the suspect
(accused) in the criminal procedural law of
Ukraine and other European countries.
Results and discussion
The case when a suspect has come down with a
serious illness which prevents him from
participating in the criminal proceedings and
such an illness is confirmed by a medical
conclusion (P.1 Ch. 1 of Art. 280 of the CPC of
Ukraine) is the first ground for the termination of
pre-trial investigation in the criminal procedural
law of Ukraine (Law of Ukraine No. 4651-VI,
2012).
The latter describes the situation when a person
has been informed about the suspicion but the
illness of the person prevents them from
participating in the criminal proceedings. Since
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such an active participant as the suspect is
excluded from the investigation process, this
prevents pre-trial investigation from continuing
and ending. Under such circumstances the
criminal proceedings shall be stopped.
In addition, similar ground is present in the
criminal procedural law of a number of European
countries.
Indeed, according to P.1 Ch.1 of Art. 24 of the
CPC of the Republic of Bulgaria, the criminal
proceedings are stopped if the accused gets a
short-term disorder of consciousness which
excludes prudence or another serious disease
which prevents the implementation of
proceedings after committing a crime (Code of
the Republic of Bulgaria).
According to § 1 Art. 22 of the CPC of Republic
of Poland, if there exists a long-term obstacle
which prevents the implementation of the
proceedings in particular if the accused cannot
participate in the criminal proceedings due to the
mental or another serious disease, the
proceedings in the case is terminated for the
duration of the obstacle (Act of Republic of
Poland No. 555).
According to points «b», «c» Ch. 2 § 228 of the
CPC of Slovak Republic, police officer
terminates the criminal prosecution if the
accused cannot be taken to court due to the
serious disease and also if the accused cannot
understand the essence of the criminal
prosecution due to the mental disease which
occurred only after the crime was committed
(Law of Slovak Republic No. 301, 2005). At the
same time, the decision about the termination of
pre-trial investigation can be made only after
indictment (Kolektív autorov, 2012). Analogous
legal regulations are stated in points «b», «c»
Ch. 1 § 173 of the CPC of Czech Republic (Law
of Czech Republic No. 141, 1961).
In turn, the CPC of the Republic of Italy connects
the termination of pre-trial investigation to the
mental disorder of the accused. According to p. 1
of art. 70 of this codified act, if the results of
investigation reveal that the mental state of the
accused is one that prevents their conscious
participation in the proceedings and that this state
is reversible, the judge makes the decision about
the termination of proceedings under the
condition that an acquittal or a decision not to
prosecute the suspect will not be issued (Code
No. 477, 1988).
It is worth mentioning that Italian criminal
procedural law makes a distinction between the
ability to understand and desire and the ability to
participate in the proceedings. The first one
covers the fullness of mental abilities that the
suspect had at the moment when the crime was
committed. The second one corresponds to the
possibility of execution of all rights by the
suspect connected with legal capacity, in order to
guarantee the right to self-defense "on the
assumption that technical protection alone is not
sufficient" (Famiglietti, 2018).
According to the interpretation of the
Constitutional Court of the Republic of Italy the
termination of criminal proceedings is not only
due to the presence of disorder which can be
defined in the clinical sense as mental but also
any other state of weakness of the accused that
prevents them from the efficient participation in
the criminal proceedings (for example, the
ischemic pathology makes it difficult to express
oneself fully and clearly). Subsequently, the
Constitutional Court of the Republic of Italy
clarified that a sign of inability to appear before
the court is the "irreversibility" of the illness,
which excludes any form of conscious
participation of the accused. In this case a
significant change of the previous legal position
happened since the last decision suggests
adhering to the current legal regulation despite
the attempts to expand the concept of inability of
the accused to participate in the criminal
proceedings (Famiglietti, 2014).
In addition, according to p. 3 of Art. 80 of the
CPC of Greece/Hellenic Republic, if the accused
has been proven to have the state of disorder of
mental functions before the end of the
investigation, the investigator shall make a
decision about the termination of the proceedings
(Law of Hellenic Republic No. 4620, 2019).
As it has been rightly noted in the literature, the
incorrect application of this ground is one of the
reasons for the increased duration of pre-trial
investigation that affects in a negative way the
evaluation of the actions of the investigator and
prosecutor (Kudrelek, 2004).
In the Law of Ukraine, the term “serious disease”
is not defined. Therefore, this category is
evaluative. By pointing at such a disease
Ukrainian legislator do not define its specific
belonging to the groups defined by medicine. In
the medical literature the health ailments of a
person are customarily divided into two big
categories: somatic (from Greek, soma – body)
symptom disorders and mental (also known as
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psychiatric) (from Greek, psyche – soul)
disorders. In addition, the eleventh revision of the
International statistical classification of diseases
and related health problems (ICD-11), adopted
by the World Health Organization on December
12, 2018, describes health-related mental and
behavioral disorders and not mental diseases
(World Health Organization, 2018). It is
explained by the fact that the use of the main
criteria of the disease (biological – the presence
of the physical pathology, medical – the quality
of life and life threat, social – human social
dysfunction) in psychiatry is complicated.
Mental disorders do not always manifest
themselves in a clear way. Moreover, mental
disorder does not have the stages which are
traditional for the term “disease” and includes
different reactions, personality decompensations
against the background of somatic dysfunctions.
It is such diseases that are mentioned in Сh.1
p.1.of the Art. 280 of the CPC of Ukraine. At the
same time, it is worth mentioning that Ukrainian
legislators defined “mental or any other serious
extended disease” as one of the grounds for the
termination of trial investigation (art. 335 of the
CPC of Ukraine). The absence of indication of
mental disorder in P.1 Ch. 1 of Art. 280 of
Ukraine can be explained by imperfections of the
legislative technique (Law of Ukraine
No. 4651-VI, 2012).
It is important to keep in mind that the criminal
procedural law of Ukraine does not include the
list of somatic diseases or mental disorders that
lead to termination of pre-trial investigation.
According to the List of diseases that can serve
as a ground for the submission to the court of the
materials on the release of the accused from
further serving their sentences, approved by a
joint order of the Ministry of Justice of Ukraine
and the Ministry of Health of Ukraine dated
August 18, 2014 № 1348/5/572, tuberculosis,
AIDs, leprosy, all IV-th stage malignancies,
some endocrine diseases/diseases of endocrine
system, mental disorders, diseases of nervous
system and sense organs, blood circulation
diseases, respiratory diseases, diseases of
digestive system, kidneys diseases, diseases of
the musculoskeletal system and connective
tissue, metabolic diseases, anatomical defects
developed from a disease or trauma, acute
radiation syndrome are considered as such
diseases (Decree of the Ministry of Justice of
Ukraine and the Ministry of Health of Ukraine
No. 1348/5/572, 2014). However, not all of the
diseases mentioned above serve as a factual
ground for the termination of pre-trial
investigation. Some of them (for example,
mental disorders) serve as a ground for changes
in the order of proceedings in pre-trial
investigation, the others (for example,
malignancies) serve as a ground for the release of
a person from criminal liability due to a situation
change, in the presence of the necessary material
and legal conditions. Therefore, the
corresponding by-law normative legal act does
not answer the questions which exactly serious
somatic disorders and mental disorders cause the
termination of pre-trial investigation.
It follows from P.1. Ch.1 of Art. 280 of the CPC
of Ukraine that such diseases must be serious and
confirmed by relevant medical conclusions (Law
of Ukraine No. 4651-VI, 2012).
The medical conclusions can be prepared by a
doctor-professional in the specific branch
himself or collegially by a medical commission.
Moreover, the medical conclusion can be issued
either by a doctor who directly treats the suspect
or by a head doctor of the medical institution or
their deputy, where the suspect is held. In
addition, the medical conclusion can be compiled
both on the basis of the procedural act of the
investigator and at the request of the suspects
themselves, their defender or legal
representative. Finally, medical conclusions can
be prepared by the doctors of both public and
communal health care institutions, but also by
doctors of private clinics. However, in the
controversial cases a forensic medical
examination can be appointed to establish the
fact of somatic disease of the suspect itself and to
determine its seriousness.
The existence and nature of disease of the suspect
can be also confirmed by medical certificates and
conclusions, which are prepared not in
connection with the criminal proceedings, but
prior to the beginning of the criminal
proceedings.
Firstly, let us consider the mental disorder of the
suspect as the ground for the termination of pre-
trial investigation.
In the CPC of Ukraine, the specific signs of the
mental disease, which provide an opportunity to
separate it from the other disorders of mental
activity that do not result in the termination of
pre-trial investigation, are not defined. As a
result, the cases of termination of pre-trial
investigation in the investigative practice happen
only on the ground of the statement of fact of
mental dysfunction but without the establishment
of the nature and degree of illness of the suspect.
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Only such a mental disorder can be the ground
for the termination of pre-trial investigation
which occurred after the criminal offense had
been committed. Those are the cases, in which
the suspect committed the criminal offense in a
state of sanity, namely when they were aware of
their actions (inactivity) and were able to control
them.
The discovery of mental disorder of the suspect
during the pre-trial investigation, which occurred
after a criminal offense had been committed and
which did not result in the loss of ability to be
aware of their actions (inactivity) or control
them, cannot be the ground for termination of
pre-trial investigation. The criminal proceedings
in this case are conducted in the usual manner
with providing such a suspect with an additional
guarantee for the right of defense. According to
P. 3 Ch. 2 of the Art. 52 of the CPC of Ukraine,
mandatory participation of the defender from the
moment of establishing the mental defect serves
as such a guarantee (Law of Ukraine
No. 4651-VI, 2012).
Mental defects, as opposed to mental disorders,
do not cause a distorted perception of reality. A
defect is any deviation from a mental norm. The
difference between a defect or state, when a
person is not capable to realize their own actions
and control them, and another morbid state of
mind is in the depth of the defect, its complexity
and in the way how it affects the actions of a
person. The state of the mental functions
(perception, attention, memory, thinking), which
provides for an adequate reflection of reality and
creates prerequisites for full-fledged intellectual
activity, is required for a person’s ability and
provides them with the right to defend
themselves. Such persons realize their actions
and can control them, although this does not
combine with the mental anomalies without the
signs, typical of mental disorders. Such persons
have limited abilities to perceive, to comprehend
and to remember the facts and circumstances,
knowledge of which is necessary for the exercise
of the right to protect themselves (Shumylo,
Dunaievska, & Kozeratska, 2019).
Solving the problem of what kinds of mental
disorder can cause the termination of pre-trial
investigation, and in which case the pre-trial
investigation has to continue in the order of
proceedings regarding the application of coercive
measures of a medical nature has an important
value for the legislator practice. The answer to
this question is stated in the criminal procedural
law. Indeed, according to P.4 of the Art. 503 of
the CPC of Ukraine, the coercive measures of a
medical nature are applied only to persons, who
are dangerous for the society (Law of Ukraine
No. 4651-VI, 2012).
In the Ch. 39 of the CPC of Ukraine it is stated,
that if the temporary mental disorder, insanity or
other morbid mental states of the suspect, which
prevent them from realizing their actions
(inactivity) and (or) controlling them, are
established during pre-trial investigation, and in
the nature of the committed criminal offense and
their mental state the suspect is dangerous for the
society and needs forced treatment then the pre-
trial investigation is not terminated. In such a
case the resolution on the change in the order of
pre-trial investigation and its continuation
according to the rules stated for the criminal
proceedings regarding the application of coercive
measures of a medical nature is issued (Law of
Ukraine No. 4651-VI, 2012).
It is worth pointing out that in P.1 Ch. 1 of art.
280 of the CPC of Ukraine does not state on the
temporary nature of suspect’s dysfunction, since
in the case of the clinics of mental disorders it is
difficult to know beforehand when leveling of
symptomatic manifestations occurs and if it
occurs at all.
Therefore, the signs of the mental disorder of the
suspect that serve as a ground for the termination
of pre-trial investigation are the following:
1) serious mental disorder, which lasts for a
certain period of time and ends with a
compensation, relief of its symptoms,
remission;
2) such a disorder caused a loss of ability by the
suspect to understand their actions
(inactivity) and (or) control them;
3) taking this into account, the mental disorder
deprives the suspect of intellectual capacity
to participate in pre-trial investigation;
4) such a disorder of the suspect occurred
during pre-trial investigation;
5) the suspect is not socially dangerous for the
society and for themselves, and therefore
does not require the application of coercive
measures of medical nature.
The question of presence or absence of mental
disorder of the suspect cannot be solved solely by
the investigator and prosecutor, since even for
the professionals difficulties often arise during
the diagnostics and evaluation of seriousness and
nature of mental dysfunction of the suspect. After
obtaining the document which certifies that the
suspect has a mental disorder (for example,
references from the psychiatric neurological
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dispensary) it is necessary to appoint a forensic
psychiatric examination to obtain additional data
on the nature and seriousness of the disease and
also to establish if it is allowed for the suspect to
participate in the criminal proceedings. Such a
conclusion follows from the provisions of P.3
Ch.2 Art.242 and Art. 509 of the CPC of Ukraine
(Law of Ukraine No. 4651-VI, 2012).
By the way, a similar approach is stated also in
both Slovak and Czech sciences of the criminal
process (Čentéš, 2012; Jelinek, 2012). In other
words, the mental disorder of the suspect shall be
established as a result of conducting a forensic
psychiatric examination, and not be a probable
mental disease of the perpetrator of a criminal act
(Kudrelek, 2004).
In addition, according to P. 1 of the Art. 70 of the
CPC of the Republic of Italy, assessment of the
presence of a mental disorder of the suspect is not
necessarily connected to the results of the expert
examination ex officio. The judge can also
establish the fact on the basis of evidence, which
can be obtained from the case materials.
Therefore, such an activity is referred to the
judge's discretion (Rumore, 2013; Famiglietti,
2014).
When the criminal proceedings are terminated on
the ground of serious somatic symptom disorder
of the suspect, it is necessary to establish the
nature of the disease and its seriousness.
The somatic disease of the suspect can occur in
different forms and can have different
consequences. Some diseases are of chronic
nature and cannot serve as a ground for the
termination of pre-trial investigation (for
example diabetes, tuberculosis, loss of vision,
hearing etc.) except for the period of their
exacerbation.
In the same way, the diseases that are of episodic
nature, but which are connected with high
temperature, increased blood pressure, loss of
conscience, namely with temporary sharp
deterioration of health, exclude the possibility for
the suspect to participate in the criminal
proceedings during such a period, however, do
not serve as a ground for the termination of pre-
trial investigation due to their short-term nature.
Under such circumstances if needed the
investigator has to raise a question about the
continuation of pre-trial investigation terms, if
such disease of the suspect prevents pre-trial
investigation from ending in times, established
by the law.
If it is established during the pre-trial
investigation that the suspect has come down
with an incurable serious illness (for example,
focal ischemic myocardial dystrophy, III-IV
stage malignancy, amyotrophic lateral sclerosis),
then in such a case if the suspect has committed
a criminal offense or minor crime for the first
time (apart from corruption criminal offenses,
criminal offenses related to corruption, violations
of traffic safety rules or vehicle operation by
persons in a state of alcohol, drug or other
intoxication or were under the influence of drugs,
which reduce the attention and reaction speed),
pre-trial investigation has to be terminated by
filing a petition for the release of a person from
criminal liability due to the change in the
circumstances and due to the loss of suspect’s
danger for the society.
Therefore, the evaluation of the suspect’s disease
as serious, which results in the termination of
pre-trial investigation, causes some difficulties.
The medical and legal criteria of such a disease
are traced in order to provide correct and equal
enforcement with P.1. Ch.1 of Art. 280 of the
CPC of Ukraine (Law of Ukraine No. 4651-VI,
2012).
Based on medical criteria, the diseases that are
dangerous for the life and health of the suspect
(some soft tissue damage and injuries of
musculoskeletal system, a number of internal
organs diseases) and their surroundings (some
infectious diseases) belong to serious somatic
symptom diseases.
The soft tissue damage and injuries of
musculoskeletal system which can serve as an
actual ground for the termination of pre-trial
investigation, should include clavicle
dislocations, upper and lower limbs dislocations,
bone fractures, pelvic fractures, skeletal
fractures, multiple injuries, that require urgent
intervention with the following rehabilitation.
The main diseases of internal organs which at
some stages of the course and during the period
of exacerbation can lead to the suspension of pre-
trial investigation, namely chronic bronchitis,
bronchiectasis, bronchial asthma, emphysema,
pulmonary fibrosis, respiratory failure,
hypertension, ischemic heart disease, a
myocardial infarction, rheumatism, chronic
venous insufficiency, a peptic ulcer disease, a
duodenal ulcer disease, chronic pancreatitis,
chronic hepatitis, cirrhosis, gallstone disease,
chronic cholecystitis, chronic
glomerulonephritis, chronic pyelonephritis,
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chronic kidney disease, hyperthyroidism,
hypothyroidism, diabetes, obesity, iron-
deficiency anemia, B₁₂-(folate) deficiency
anemia, hemolytic anemia, chronic lymphocytic
leukemia, polycythemia vera.
Among infectious diseases it is relevant to single
out the following: respiratory tract infections
(tonsillitis, flu, acute respiratory viral infections,
meningococcal infection, diphtheria, measles,
rubella, epidemic parotitis, chicken pox, scarlet
fever, whooping cough); bowel infections
(typhoid, cholera, food poisoning, salmonellosis,
botulism, shigellosis, campylobacteriosis,
intestinal yersiniosis), viral hepatitis (hepatitis A,
hepatitis B, acute hepatitis C, hepatitis D,
hepatitis E), infections of the integumentary
system (tetanus, anthrax, erysipelas); infections
with multiple transmission mechanisms (3rd and
4th clinical stages of HIV infection, plague,
primary and recurrent herpes infection, herpes
zoster, infectious mononucleosis,
cytomegalovirus infection).
It is important that the disease is either temporary
or of a chronic nature but undergo treatment that
should cause health improvement to the level that
allows suspects to participate in the criminal
proceedings.
At the same time, not every serious or even
incurable somatic disease of the suspect from the
medical point of view can serve as the ground for
termination of pre-trial investigation. For
example, pulmonary hypertension, poliomyelitis,
Parkinson's disease at certain stages and without
exacerbation have no significant interference
with the suspect’s life activities. Therefore, the
judicial criterion of the definition of presence of
a serious somatic disease from P.1 Ch. 1 Art. 280
of the CPC of Ukraine. This also includes such a
circumstance that the disease causes the suspect's
health disorder, which physically prevents him
from participating in pre-trial investigation for a
certain period of time (to testify, make a request,
familiarize yourself with the materials of
criminal proceedings, etc). The understanding of
the legal criterion is complemented in the
doctrine by the fact that a serious somatic disease
does not allow to deliver the suspect to the place
of implementation of procedural actions due to
the danger of suspect’s health deterioration and
physical and mental efforts, connected with
participating in such actions (Waltoś, 1970).
However, this characteristic is only a
specification of the previous provision due to the
legal criterion of the definition of the presence of
serious somatic disease.
Finally, it is worth mentioning that in the Slovak
criminal process theory it is emphasized that such
an assessment of the somatic disease is usually
stated in the expert’s conclusion (Ivor, 2012).
Based on this, P.1 Ch. 1 of Art. 280 of the CPC
of Ukraine should be stated in the following form
– «the suspect has a serious disease, is injured or
has a mental disorder, that temporarily prevents
him from participating in the criminal
proceedings if this diagnosis is confirmed by a
medical or expert’s conclusion”.
Conclusions
One of the conditions for the comprehensive,
complete and impartial pre-trial investigation is a
mandatory participation of the suspect. This is
because the criminal proceedings happen
because of the actions incriminated to them. The
presence of the circumstances for which the
suspect is not able to participate in pre-trial
investigation directly, realizing the procedural
rights and executing their own procedural
responsibilities, provided to them by the laws,
prevents the completion of tasks of the criminal
proceedings. It is not always possible to establish
the subject of proof without the presence of a
suspect. That is why plenty of European
countries defined the causes connected with
mental disorders or serious somatic diseases of
the suspect (accused) to be grounds for the
termination of pre-trial investigation.
Legal regulation of this cause in the CPC of
Ukraine and European countries is similar.
Indeed, the presence and nature of mental
disorder of the suspect (accused) is established
only in the conclusion of forensic psychiatric
examination. Instead, it suffices to have a
corresponding medical document in the case of
serious somatic disease. The essential sign of
termination of pre-trial investigation for this
ground is the impossibility of participation of the
suspect (accused) in the criminal proceedings for
a certain period of time.
At the same time, the question whether the
mental disorder should be connected with the
loss of the suspect's ability to understand their
actions (inactivity) and control them or not
remains debatable in the doctrine of the criminal
procedure. In our opinion, the establishment of
the presence of such a mental disorder of the
suspect (accused) after a criminal offense was
committed, which did not cause the loss of
suspect’s ability to understand their actions
(inactivity) or to control them, serves as a ground
to recognize such participant of criminal
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/ July 2022
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proceedings to be a person, which due to their
mental defects is not able to fully exercise their
rights, but cannot serve as a ground for the
termination of criminal proceedings.
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