Discontinuation of the proceedings at a hearing because it is established that the act described in the indictment does not contain the characteristics of a prohibited act is a common practice of the Courts, intended to streamline the course of the proceedings and relieve the Courts. Its application, however, carries the risk of a serious violation of procedural law and should be used only in exceptional cases, supported by an in-depth analysis of the collected evidence.
A premature decision of the Court to discontinue the case without holding a hearing may prevent the submission of relevant evidence and, as a consequence, insufficient clarification of the circumstances of the case. The practice in which the Courts, despite applying for obtaining evidence, decides to resign from conducting the proceedings is unacceptable. As stipulated in Art. 167 of the Code of Criminal Procedure, evidence in the case is taken at the request of the parties or ex officio, therefore the withdrawal from taking evidence without examining the evidence requests of the prosecutor cannot be considered admissible. Even if, however, the Court familiarized itself with the submitted evidence requests and nevertheless decided to reject them, in accordance with Art. 170 §1a of the Code of Criminal Procedure, he may do so only when he is sure that carrying them out would not lead to the determination of circumstances of significant importance to the case. In a situation where the prosecutor would turn to the Police in order to obtain evidence, the discontinuation of the proceedings before the officers took evidence may be considered as depriving him of the opportunity to take evidence, which should be guaranteed under the provisions of the Code of Criminal Procedure. When considering discontinuation of the proceedings on the basis of finding that there are no signs of a crime, the court should also take into account the fact that failure to conduct a hearing and thus resignation from examining all the circumstances of the evidence may be considered a serious infringement of Art. 92 of the Code of Criminal Procedure, according to which the decision may be based only on all the circumstances disclosed in the proceedings, which are relevant to the decision.
Bearing in mind the above-mentioned threats related to the abuse by the Courts of Art. 339 § 3 point 2 CCP it should be stated that the discontinuation of the proceedings due to the Court’s finding that there are no signs of a prohibited act, unless it has decided to conduct a comprehensive and exhaustive evidentiary procedure, should not be admissible.
