Analysis of case law on appeal against dismissal

 Due to the active deployment of the process of combating corruption offenses, one of the most popular measures to ensure criminal proceedings was the removal from office.

 Therefore, more and more difficulties arise regarding the reasonableness of such an event. The defense party often files appeals, which in most cases are not sufficiently substantiated. The purpose of this article is to summarize the grounds for satisfaction and refusal to grant appeals for removal from office filed by the defense party.

 Article 154 of the CPC of Ukraine states that removal from office may be carried out in respect of a person suspected or accused of committing a crime of serious, serious or particularly serious crime, and regardless of the seriousness of the crime, in respect of a person who is a law enforcement official.

 The prosecutor, the investigator in agreement with the prosecutor, has the right to apply to the investigating judge during the pre-trial investigation or the court during the court proceedings with the request for removal of the person from the position, the requirements of which are contained in part 2 of Art. 155 of the CPC of Ukraine. Article 157 of the CPC of Ukraine states that in deciding whether to dismiss a investigating judge, the court is obliged to take into account the following circumstances: 1) the legal basis for removal from office; 2) the sufficiency of the evidence indicating the commission of a criminal offense; 3) the consequences of removal from office for others. According to Art. 309 of the CPC of Ukraine such a decision may be appealed on appeal.

 In order to achieve the task set before the author, 67 court decisions were analyzed in which such a measure of criminal proceedings was appealed. Of these, 11 complaints were satisfied, in 56 cases were denied.

 Summarizing the grounds for dismissal appeals, we can distinguish the most common of them:

1) failure to prove the circumstances in accordance with the requirements of Article 157 of the CPC of Ukraine, ie the legal basis for removal from office, the sufficiency of the evidence indicating the commission of a criminal offense, the consequences of removal from office for other persons. The last circumstance may be, for example, that removal from office will have a significant impact on the activities of a particular enterprise, due to the lack of experience of other employees who will not be able to complete the curriculum in a timely manner.

2) exceeding the period of pre-trial investigation;

3) a long time has passed since the person was informed of the suspicion;

4) the existence of risks, which must be substantiated in the request, is based on assumptions.

 The grounds for refusing such complaints are mainly as follows:

1) groundlessness, groundlessness, failure to provide evidence;

2) the complaint was filed during court proceedings;

 The third ground is set out in the Law of Ukraine “On Prevention of Corruption”, which states that a person who has been informed of a suspected crime in the sphere of official activity is subject to removal from office in the manner prescribed by law.

 Keeping these grounds in mind when preparing appeals for removal from office will help the defense party avoid common mistakes.