PROCESSUAL FEATURES OF CRIMINAL PROCEEDINGS OF THE SUCCESSFUL JUDGE
Article 309 of the CPC of Ukraine contains a list of decisions of the investigating judge who may be appealed during the pre-trial investigation. In addition, appeals may also be appealed against the decisions of the investigating judge, determined in accordance with Part 2 of Art. 117, part 7 of Art. 583, part 9 of Art. 584, part 6 of Art. 591 CPC of Ukraine.
Systemic interpretation of the relevant provisions of Chap. 31 CPC of Ukraine makes it possible to conclude that the legislator has established certain peculiarities of the appellate review of the decisions of the investigating judge, which are conditioned primarily by the nature of this type of court decision, the necessity of urgent verification of its legality and validity.
The peculiarities of verifying such decisions include:
a) a simplified procedure for lodging an appeal directly to the Court of Appeal (Part 1 of Article 395 of the Criminal Procedure Code of Ukraine);
b) a shortened term for appeal of the decision of the investigating judge – within 5 days from the date of its announcement, and for the person who is in custody – from the moment when a copy of the court decision is served to her; for a person without whose call the decision of the investigating judge is issued and which challenges it, from the day of receipt of the copy of the court decision (Part 2 and 3 of Article 395 of the CPC of Ukraine); c) a shortened period of consideration of the appeal – no later than 3 days after its receipt in the court of appellate instance (Part 2 of Article 422 of the CPC of Ukraine).
Decisions of the investigating judge specified in art. 309 CCP may appeal against:
the suspect, his legal representative or counsel;
a minor, his legal representative or counsel for the appeal of the decisions of the investigating judge provided for in paragraphs. 6.7 parts of item 1. 309 CPC;
a person in whose possession there are things and documents regarding the appeal of the decisions of the investigating judge provided for in clause 10 part 1 of Art. 309 CCP, Defender or Representative;
a civil plaintiff for the purpose of providing a civil claim for appealing against the decisions of an investigating judge provided for in clause 9, part 1, Article. 309 CPC, his representative or legal representative of a civilian plaintiff who is a minor;
other owners or owners of property in relation to the appeal of the decisions of the investigating judge provided for in clause 9 part 1 of Art. 309 CPC, their representatives;
other persons in cases stipulated by the CPC.
From the contents of Part 1 of Art. 492 of the CCP it is understood that after receiving an appeal against the decision of the investigating judge in the case, the judge-rapporteur is appointed. He immediately requests relevant materials from the court of first instance and no later than within a day, the person lodging it, the prosecutor and other interested persons shall be informed of the time, date and place of the appeal. In addition, the judge carries out the necessary preparatory actions in accordance with the requirements of Art. 401 CPC.
During the term of the appeal, the materials of the criminal proceedings can not be demanded by a court (see Article 4, Article 395, CPC).
Based on the content of ch. From Art. 407 of the Criminal Procedure Code of Ukraine, as a result of the appeal proceedings for complaints against the decisions of the investigating judge, the court of appeal has the right to:
a) leave the decision of the investigating judge unchanged, and the appeal is without satisfaction;
b) to cancel the decision of the investigating judge and make a new ruling.
In other words, a procedural situation may arise when, by canceling, for example, a ruling on the application of a preventive measure in the form of a home arrest, the court of appeals decides on the application of another preventive measure, including detention. However, according to Part 4 of Art. 176 of the CPC of Ukraine, preventive measures during the pre-trial investigation are used by the investigating judge, who, in accordance with Clause 18, Clause 1, Art. The CPC of Ukraine is a judge of the court of first instance, whose authority is exercised in accordance with the procedure provided for by the CPC of Ukraine, judicial control over the observance of the rights, freedoms and interests of persons in criminal proceedings, and in the case provided for in art. 247 of the CPC of Ukraine, – the chairman or, by its definition, another judge of the Court of Appeal of the Autonomous Republic of Crimea, the district court of appeals, the cities of Kyiv and Sevastopol.
It is also worth paying attention to the seemingly imperative norm enshrined in Part 4 of Art. 424 of the CPC of Ukraine, which states that the decision of the court of appellate instance, made on the basis of the results of the review of the decision of the investigating judge, is not subject to appeal. At the same time, according to Part 7 of Art. 591 of the Criminal Procedure Code of Ukraine passed a court of appellate instance, decided upon the results of the review of the decision of the investigating judge in cases concerning the appeal of a decision on extradition (extradition), may be appealed by the prosecutor in a cassation order. In view of the above, it is necessary to be guided not only by the general norms, but also by the special rules governing the procedure and grounds for revising certain court decisions taken within the framework of criminal proceedings.
Author: Ivan Ishchuk