HOW TO RETURN THE STORY ?!

The main investigating department of the National Police of Ukraine is carrying out a pre-trial investigation of criminal proceedings, the information about which is entered into the Uniform Register of pre-trial investigation on the grounds of a criminal offense, stipulated by Part 4 of Art. 190 of the Criminal Code of Ukraine.
In December 2018, security detainees were selected for 4 suspects with an alternative deposit facility, which was later introduced.

What should a defender do to get a pledge?

At the pre-trial investigation, there are at least two methods of returning the mortgage to the mortgagor.
The first of these is to prevent the protection side from continuing to take a precautionary measure in the form of a continuation of the statutory duties. This happens by removing an investigating judge who must listen to the investigator’s request for the continuation of the preventive measure. As a result of the removal of a judge, the case falls into a new division and again in a circle, resulting in the expiration of the validity of the decision and the investigating judge returns the petition for the continuation of the preventive measure by the investigator.
In such a case, there is the risk that some investigating judges defend the position that the pledge as a precautionary measure does not have a period of application and the question of its return must be settled when considering the case on the substance of the sentence.
A similar situation took place in our particular case. Thus, on May 2, 2019, by a decision of the investigating judge of the Pechersk District Court of Kyiv, a petition for the continuation of a preventive measure in the form of a pledge was returned to the investigator. The period of validity of the preventive measure has not been prolonged, and therefore the safeguard measure in the form of a pledge has ceased to exist.
At the time of applying for a return on mortgage, none of the preventive measures provided for in Art. 176 CPC of Ukraine has not been applied, none of the procedural duties provided for in Part 5 of Art. 194 CPC of Ukraine is not entrusted.
Taking into account the above, the petition for changing the precautionary measure in relation to the application to a suspect of a milder preventive measure is not subject to a decision in this court hearing. At the same time, the issue of keeping the pledge on the treasury account of the SJA of Ukraine in Kyiv was not resolved.
According to Clause 3 of Part 1 of Art. 176, part 1 of Art. 182 of the Criminal Procedure Code of Ukraine, the pledge is one of the precautionary measures and consists in the transfer of funds in the monetary unit of Ukraine to a special account determined in accordance with the procedure established by the Cabinet of Ministers of Ukraine in order to ensure the execution of the obligations of the suspect, the accused of obligations imposed upon him, funds in the income of the state in case of non-fulfillment of these obligations. The pledge can be filed both by the suspect, the accused, and other physical or legal person, the pledgor. In accordance with Part 11 of Art. 182 of the CPC of Ukraine, a pledge that was not turned into a state income, returned to the suspect, accused, pledgee after the termination of this preventive measure. In this case, the pledge made to the suspect, the accused, may be fully or partially appealed by the court to execute the sentence in respect of property charges. The mortgage must be returned to the mortgagor if:

1) there are no grounds for applying the negative consequences for applying for a security deposit to the State’s income (part 8 of Article 182 of the CPC of Ukraine);
2) the decision on the application of the preventive measure ceased to exist in connection with the expiration of the decision to choose a preventive measure (Article 203 of the CPC of Ukraine) or in connection with the entry into force of other court decisions – a decision on the replacement of a preventive measure;
3) the mortgagor, that is, the person who made the pledge does not give his consent to a possible appeal by the court in the future to execute the sentence in respect of property pecuniary punishment (Part 1 of Article 182 of the CPC of Ukraine).
The duties of an investigating judge on the protection of human rights are not limited to the provisions of Art. 206 of the CPC of Ukraine and are based on the norms of the Constitution, international treaties and rulings of the European Court of Human Rights.
A systematic analysis of the provisions of the CPC of Ukraine indicates that the expiration of the period of validity of the decree on the application of a measure of criminal proceedings indicates that the measure was terminated and the rights and freedoms of the person in respect of which he was applied or whose interests concerned were resumed. Consequently, any delay in limiting the rights and freedoms of individuals after the termination of one form or another of these restrictions (in this case, the impossibility of administering a certain amount of cash) is inadmissible.
According to Art. 203 of the Criminal Procedure Code of Ukraine, the decision to apply a preventive measure shall cease after the expiration of the period of validity of the decision to select a preventive measure.

According to Clause 3 of Part 1 of Art. 176, part 1 of Art. 182 of the Criminal Procedure Code of Ukraine, the pledge is one of the precautionary measures and consists in the transfer of funds in the monetary unit of Ukraine to a special account determined in accordance with the procedure established by the Cabinet of Ministers of Ukraine in order to ensure the execution of the obligations of the suspect, the accused of obligations imposed upon him, funds in the income of the state in case of non-fulfillment of these obligations. The pledge can be filed both by the suspect, the accused, and other physical or legal person, the pledgor. In accordance with Part 11 of Art. 182 of the CPC of Ukraine, a pledge that was not turned into a state income, returned to the suspect, accused, pledgee after the termination of this preventive measure. In this case, the pledge made to the suspect, the accused, may be fully or partially appealed by the court to execute the sentence in respect of property charges. The mortgage must be returned to the mortgagor if:

1) there are no grounds for applying the negative consequences for applying for a security deposit to the State’s income (part 8 of Article 182 of the CPC of Ukraine);
2) the decision on the application of the preventive measure ceased to exist in connection with the expiration of the decision to choose a preventive measure (Article 203 of the CPC of Ukraine) or in connection with the entry into force of other court decisions – a decision on the replacement of a preventive measure;
3) the mortgagor, that is, the person who made the pledge does not give his consent to a possible appeal by the court in the future to execute the sentence in respect of property pecuniary punishment (Part 1 of Article 182 of the CPC of Ukraine).
The duties of an investigating judge on the protection of human rights are not limited to the provisions of Art. 206 of the CPC of Ukraine and are based on the norms of the Constitution, international treaties and rulings of the European Court of Human Rights.
A systematic analysis of the provisions of the CPC of Ukraine indicates that the expiration of the period of validity of the decree on the application of a measure of criminal proceedings indicates that the measure was terminated and the rights and freedoms of the person in respect of which he was applied or whose interests concerned were resumed. Consequently, any delay in limiting the rights and freedoms of individuals after the termination of one form or another of these restrictions (in this case, the impossibility of administering a certain amount of cash) is inadmissible.
According to Art. 203 of the Criminal Procedure Code of Ukraine, the decision to apply a preventive measure shall cease after the expiration of the period of validity of the decision to select a preventive measure.
In accordance with Part 11 of Art. 182 of the CPC of Ukraine the mortgage is returned to the mortgagor after termination of this preventive measure.

In addition, the circumstances and motives presented together with the existing request of a non-suspect lawyer indicate that there are reasonable grounds to conclude that the expiration of the period of validity of the decree or expiration of the obligations may be a reasonable ground for the return of the collateral to a person, which made it. Moreover, the fact of doubt is the fact of the further application of the decree itself to the pledger after the expiration of its validity, as well as the actual imposition on the pledgee of the obligation to continue to keep on the deposit accounts of the state budget their funds to ensure the execution of the suspect or accused of the general obligation, which is not imposed by the relevant court decision.

According to Art. 41 of the Constitution of Ukraine, everyone has the right to own, use and dispose of their property, property rights are inviolable, no one may be illegally deprived of property rights.
Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms provides that every natural or legal person has the right to peacefully own his property. No one shall be deprived of his property except in the interests of society and on the terms provided for by law and the general principles of international law.
The presence of the petitioner’s application, in combination with the circumstances, does not in any way interfere with the prosecutor or investigator at any time, including immediately upon receipt of the corresponding petition of the pledgee, to initiate the issue of determining another preventive measure in relation to the suspect in order to ensure a fair balance between the interests of the pre-trial investigation and interests of all participants in criminal proceedings.

At the same time, during the consideration of the petition it was established that the investigator handed over to the suspect and directed to the court a petition for the extension of a preventive measure in the form of a pledge in order to ensure fulfillment of the obligations imposed on the suspect by the decision of the investigating judge of the Pechersk District Court of Kyiv from 28.02.2019, was withdrawn by the investigator and issued a corresponding decision of the investigating judge.
The above circumstances indicate a combination of sufficient factors necessary for the return of the mortgage to the mortgagor, namely:
– the decision on the application of the preventive measure ceased to exist in connection with the expiration of the decision to choose a preventive measure (Article 203 of the CPC of Ukraine), which is confirmed by the copy of the decision of the investigating judge available in the case file;
– the mortgagor, that is, the person who made the pledge does not give his consent to a possible future appeal by the court for execution of the sentence in respect of property fines, since such consent was not provided during the consideration of the petition to the investigating judge (Article 11, Article 182 of the CPC of Ukraine);
– the mortgagor refuses to perform such a function in the given criminal proceeding and does not intend to act as the guarantor of the proper procedural behavior of the suspect and insists on the necessity of ensuring the constitutional right to dispose of his property (a copy of the application in the annexes).
In addition, it is important to draw the court’s attention to the fact that it is impossible to change a preventive measure on a milder basis for the return of a pledge, given that none of the possible precautionary measures has been applied to the suspect.

We draw attention to the practice of the court:
Decision of the Galitsky District Court of Lviv in case No. 461/1014/19 (http://www.reyestr.court.gov.ua/Review/81625497): “At the same time, during the consideration of the petition, it was found that on March 25, 2019, the prosecutor made and then sent to court a petition for extension of the two months imposed on the suspect by a decision of the investigating judge of the Galician District Court of Lviv from 04.02.2019 obligations, which was subsequently withdrawn by the prosecutor.

Thus, taking into account the above-mentioned circumstances regarding the consideration of the prosecutor’s petitions by the investigating judge and the court of appellate instance, it has been established that the prosecutor is well aware of the absence of a court decision of 11.04.2019 imposing on the suspect appropriate obligations that are not relied upon by the suspect for staying in this procedural status.

The presence of the petitioner’s application, in combination with the circumstances, does not in any way interfere with the prosecutor or investigator at any time, including immediately upon receipt of the corresponding petition of the pledgee, to initiate the issue of determining another preventive measure in relation to the suspect in order to ensure a fair balance between the interests of the pre-trial investigation and interests of all participants in criminal proceedings. “

The investigating judge, the court is obliged to consider the petition of the suspect, the accused within three days from the day of its receipt in accordance with the rules provided for consideration of the petition for the application of the preventive measure. However, such petitions are considered at least one month in the Pechersk District Court of Kyiv.

It is always possible to achieve the result and there are various mechanisms for achieving the goal, which are not prescribed directly in the Criminal Procedure Law.
Therefore, advise advocates to work commandly, to share new mechanisms with their colleagues in the profession and be one team. And, of course, advice to the suspect and other participants in the criminal process, select lawyers exclusively for their achievements.

Author: Andrey Prikhodko

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