PECULIARITIES OF PROTECTING THE RIGHTS OF VICTIMS DURING PRE-TRIAL INVESTIGATION
The main task of the state in cases of committing crimes is to protect the legal rights and interests of citizens. Therefore, the activities of the bodies conducting criminal proceedings should be aimed at ensuring the real guarantees of the participants in the proceedings and the effective restoration of their rights in the event of a breach.
According to statistics, the number of victims of crime and the amount of physical, property and moral harm they cause each year are increasing. Analyzing the statistics of unsolved crimes and closed criminal proceedings, we can conclude that a large number of victims of crimes have reason to be dissatisfied with the lack of safeguards and effective mechanisms to protect their rights.
The increase in negative indicators is more related to the problems that occur to victims during the pre-trial investigation of criminal offenses.
Perhaps the most significant complications in the exercise of the victim’s own rights have to do with the decisions, actions and omissions of law enforcement officials, which, in particular, result in: (1) failure to report criminal offenses in the Unified Register of Pre-trial Investigations (hereinafter – E); (2) non-recognition of the victim’s identity in the criminal proceedings; (3) delaying pre-trial investigation and failure to carry out necessary investigative (search) actions; (4) wrongful closure of criminal proceedings, etc. These and other violations do not actually make it possible to prosecute the perpetrators of criminal charges and eliminate the negative consequences of crimes, which are primarily related to the violation of property rights of citizens, enterprises, institutions – victims of criminal proceedings.
Let us consider in more detail issues such as the failure to report criminal offenses to the ERDF and the closure of criminal proceedings, as they are currently the most widespread and with the most dangerous consequences for victims.
Failure to submit information to the ERDF
According to the provisions of Art. 214 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the CPC of Ukraine), the pre-trial investigation begins from the moment when the investigator or prosecutor submits the relevant information about the commission of a criminal offense to the ERDF. In addition, Part 1 of this Article contains a mandatory rule that such information must be submitted to the ERDF no later than 24 hours after the application or notification of a criminal offense has been filed.
At the same time, in practice, there is a situation where law enforcement officials, ignoring the requirements of Part 1 of Art. 214 of the CPC of Ukraine, and unwilling to fulfill their duties, do not enter information about committing a criminal offense on a filed application or a report on a criminal offense to the ERDF and consider it in the manner established by the Law of Ukraine “On Citizens’ Appeals”.
The problem of not reporting criminal information to the ERDF within 24 hours of receiving a statement or notification of a criminal offense has become extremely common. It is no coincidence that the Court of Appeal of Kyiv in its summary of the judicial practice of appealing decisions, actions or omissions during the pre-trial investigation in the order of the Criminal Procedure Code of 01.06.2013 indicates that the most numerous category of complaints is the complaints about the inaction of the investigator Failure to submit information on a criminal offense to the ERDF upon receipt of a statement or notification of a criminal offense.
At present, the situation requires the victim to independently monitor the status of his / her application / notification, in particular, to clarify in the department or the office of the pre-trial investigation body or prosecutor’s office the information on the submission of the statement to the investigator / prosecutor and their submission to the ERD. In this case, it is also necessary to take the initiative of the victim in order not to miss the ten-day period for challenging the inaction of the investigator or the prosecutor concerning the failure to submit information about a criminal offense to the ERDF.
The CPC of Ukraine provides for the possibility of appealing to the participants of criminal proceedings the decisions, actions or omissions of the investigator or the prosecutor during the pre-trial investigation to the investigating judge (Articles 303-307 of the CPC of Ukraine), which is a manifestation of guarantees of protection of the rights of participants in criminal proceedings.
In Part 1 of Art. 303 of the CPC of Ukraine provides a comprehensive list of cases and subjects of appeal against decisions, actions or omissions of the prosecution party in the pre-trial investigation. Among other things, the inaction of the investigator, the prosecutor, who is not submitting information about a criminal offense to the ERDR after receiving a statement or notification of a criminal offense, is also subject to appeal.
It should be noted that the courts are in no hurry to take the side of the victims in this category of cases. There are often cases where investigating judges refuse to satisfy complaints about the inactivity of an investigator, a prosecutor, who is not reporting criminal information to the ERDF.
Sometimes, instead of preventing violations committed by investigators and prosecutors, investigating judges, contrary to the rules of the current CPC of Ukraine, decide on the groundlessness of the content of a crime statement and refuse to satisfy complaints about the inactivity of an investigator or prosecutor in not reporting information to the ERDF.
In view of the foregoing, in order to effectively protect and restore rights in the event of the investigator or prosecutor’s failure to report the ERDF, the victims should:
– have documentary confirmation of the acceptance and registration of the criminal offense statement. According to paragraph 1 of Part 2 of the CPC of Ukraine, the applicant has the right to request from the body to which the criminal offense application is filed, to provide him with the relevant supporting document;
– to clarify in the office of the pre-trial investigation body the information on the submission of the statement to the investigator / prosecutor and their submission within 24 hours to the relevant EDDR;
in the statement on the commission of a criminal offense clearly indicate the previous qualification of the criminal offense, its composition and qualifying features;
– not to miss a ten-day period to appeal to the court with a complaint about the inaction of the investigator or the prosecutor, which consists in not filing the ERDF information;
– remember that under Art. 12 of the Law of Ukraine “On appeals of citizens” the effect of this Law does not extend to the procedure of consideration of applications and complaints of citizens, established by the criminal procedural legislation.
Unlawful closure of criminal proceedings
Deciding to close criminal proceedings has become one of the most popular procedural decisions during pre-trial investigation. Moreover, as practice shows, such decisions are not always legal and justified.
Yes, Art. 283 of the Code of Criminal Procedure of Ukraine determines that one of the forms of termination of pre-trial investigation is the closure of criminal proceedings, and Art. 284 of the CPC provides for the grounds and procedure for such closure.
Part 1 of Art. 303 of the CPC of Ukraine provides for the possibility of challenging the decision of the investigator, the prosecutor to close the criminal proceedings.
Unlike a suspect who is empowered to challenge only the prosecutor’s orders to close criminal proceedings, the victim, his or her representative or legal representative may appeal the decision to close the criminal proceedings of both the prosecutor and the investigator.
The procedure for consideration by an investigating judge of a complaint against a decision to close criminal proceedings is general and is carried out in accordance with Art. 306 CCP of Ukraine. The law establishes a five-day time limit for reviewing a decision to close criminal proceedings. In practice, the proceedings are somewhat delayed, since pre-trial investigative materials are usually not provided within the five-day time limit at the request of the court. Typically, documents are requested by the court within 7-14 days.
Consideration of appeals against decisions, actions or omissions during the pre-trial investigation is carried out with the obligatory participation of the complainant or his / her defense counsel, representative and investigator or prosecutor whose decisions, actions or omissions are contested. The absence of an investigator or prosecutor is not an obstacle to a complaint.
According to Art. 304 of the CPC of Ukraine appeals against the decision, actions or omissions of the investigator or prosecutor may be filed by the person within ten days from the moment of the decision, the act or omission. If the decision of the investigator or prosecutor is formalized by a decision, the term of filing of the complaint starts from the day of receiving the copy by the person.
One of the main reasons for returning the complaint to the complainant, in accordance with Part 2 of Art. 304 of the CPC of Ukraine, is the very application of a person to court after the end of the ten-day period for filing the complaint, provided for Part 1 of Art. 304 of the CPC of Ukraine, and if the person submitting it does not raise the issue of renewal of this term or the investigating judge at the request of the person did not find grounds for its renewal.
It should be noted that the prosecutor / investigator is obliged to send the victim a copy of the ruling ordering the closure of criminal proceedings. In practice, decisions to close criminal proceedings are directed to victims in isolated cases. Usually, victims are informed of such decisions by chance, when familiarizing themselves with the criminal proceedings, or when receiving a lawyer’s request from a victim’s representative regarding the status of the pre-trial investigation. In such a case, the court may take into account the date of familiarization with the case file, namely the decision to close the criminal proceedings, or the date of receipt of the victim’s response to a lawyer’s request, together with a copy of the ruling, as the beginning of the period of ten days to appeal the ruling. In addition, when calculating the time limits for filing complaints, the position of the High Specialized Court of Ukraine for Civil and Criminal Cases, set out in the letter dated November 9, 2012 No. 1640/0 / 4-12, “On Some Issues of the Procedure for Appeal against Decisions, Actions or Inaction during Pre-Trial Judgment” investigation ”(Part 6 of the said letter).
Complaints against a decision to close criminal proceedings are also returned to the complainants on the ground that such a complaint is not subject to review in this court or because the person who filed the complaint was not entitled to file it.
Based on the results of consideration of appeals against the decision, actions or inaction of the investigator or prosecutor in the pre-trial investigation, a decision is made in accordance with the rules of Art. 307 of the CPC of Ukraine. Such an order of the investigating judge may state: cancellation of the decision of the investigator or prosecutor, obligation to terminate the action, obligation to take certain action, refusal to satisfy the complaint. The decision of the investigating judge to dismiss the appeal against the decision to close the criminal proceedings can be appealed to the respective court of appeal, which is the last instance in this category of cases.
In addition to appealing the decision to close the criminal proceedings of the investigator in court, there is a possibility of appeal, which is not so often addressed to victims, namely its appeal to the prosecutor. According to Part 6 of Art. 284 of the Criminal Procedure Code of Ukraine the decision of the investigator to close the criminal proceedings may be canceled by the prosecutor on the complaint of the applicant, the victim, if such a complaint is lodged within ten days from the moment when the applicant receives the copy of the decision. The prosecutor’s power to abolish unlawful and unsubstantiated investigative orders is also provided for in paragraph 7 of Part 2 of Art. 36 of the CPC of Ukraine.
Although the appeal of the prosecutor’s decision to close the criminal proceedings against the superior prosecutor is not explicitly provided by the Code, nevertheless, the possibility of such appeal is indicated in Part 6 of Art. 36 of the CPC of Ukraine, which states that the Prosecutor General of Ukraine, the head of the regional prosecutor’s office, the head of the local prosecutor’s office, their first deputies and deputies, while supervising the observance of laws during the pre-trial investigation, have the right to repeal illegal and unjustified decisions of investigators and prosecutors of the lower level within the terms of the pre-trial investigation provided for in Art. 219 of this Code. Such a resolution shall be notified to the prosecutor, who shall supervise the observance of the laws during the relevant pre-trial investigation.
Therefore, when ordering the closure of criminal proceedings, the victim actually has the opportunity to appeal the decision to the investigating judge or the prosecutor. In our opinion, in order to maximize the effective use of all available remedies, it is advisable to submit appropriate complaints to both the court and the prosecutor’s office. It is quite common that investigative judges do not even have time to consider the complaint on the merits, since prosecutors and investigators, after opening the court proceedings on the complaint (of which they are notified), independently cancel the decision to close criminal proceedings in accordance with the provisions of Part 2 of Art. 305 of the CPC of Ukraine, which becomes the basis for closing the court proceedings.
Summarizing, it can be noted that the wrongful filing of information about a criminal offense in the ERDF and the unlawful closure of criminal proceedings are, in essence, the key problems that actually prevent the investigation and bring it to justice.
Securing the right to appeal against these and other procedural decisions, actions or omissions as a basis for criminal proceedings is an extremely important tool in restoring the rights, freedoms and legitimate interests of citizens. Whether it will be effective and efficient depends largely on the person handling the complaints. Knowledge to victims of their procedural rights and the manner in which they are exercised will always be an advantage, enabling them to make full use of all the legal remedies provided by law.
Author: Andrey Kubov