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ANOTHER VICTORY OVER THE OFFICE OF THE PROSECUTOR GENERAL

06.12.2021 in criminal proceedings № 12017100060003436 dated 15.07.2017 seven clients of JSB “Prikhodko and Partners” were informed about the suspicion of teaching a crime under Part 4 of Art. 190 of the Criminal Code of Ukraine.

On December 7, 2021, a senior investigator in particularly important cases of the Main Investigation Department of the National Police of Ukraine prepared a request for a 60-day pre-trial detention measure for each suspect with a total bail of over UAH 10,5 million.

Lawyers of JSB “Prikhodko and Partners” found that this petition is illegal and made in violation of the Criminal Procedure Code of Ukraine, based on the following.

Regarding the re-prosecution of persons by the prosecution for committing the same offense.

In accordance with Part 1 of Art. 61 of the Constitution of Ukraine, no one can be twice brought to justice of the same kind for the same offense.

According to the provisions of paragraph 12 of Part 1 of Art. 7 of the CPC of Ukraine, the general principles of criminal proceedings include the prohibition to prosecute twice for the same offense.

In accordance with paragraph 14 of Part 1 of Art. 3 of the CPC of Ukraine, bringing to criminal responsibility – a stage of criminal proceedings, which begins from the moment of notification to the person of suspicion of committing a criminal offense.

In accordance with Part 1 of Art. 19 of the CPC of Ukraine, no one can be twice accused or punished for a criminal offense for which he was acquitted or convicted on the basis of a court verdict that has entered into force.

In accordance with Part 4 of Art. 218 of the CPC of Ukraine, At the beginning of the investigation, the investigator checks the presence of pre-trial investigations into the same criminal offense.

In accordance with paragraph 3 of Part 1 of Art. 276 of the CPC of Ukraine, notification of suspicion must be carried out in the manner prescribed by Article 278 of this Code, in the presence of sufficient evidence to suspect a person of committing a criminal offense.

According to Art. 277 of the CPC of Ukraine, the notice of suspicion must contain:

  • the name and position of the investigator, prosecutor who makes the notification;
  • personal data of the person (surname, name, patronymic, date and place of birth, place of residence, citizenship) who is reported on suspicion;
  • name (number) of the criminal proceedings within which the notification is made;
  • the content of the suspicion;
  • legal qualification of the criminal offense in which the person is suspected, with indication of the article (part of the article) of the law of Ukraine on criminal liability;
  • a summary of the factual circumstances of the criminal offense in which the person is suspected, including the time, place of its commission, as well as other significant circumstances known at the time of notification of the suspicion;
  • the rights of the suspect;
  • signature of the investigator, prosecutor who made the notification.

Based on the above, the following is seen:

  • current legislation prohibits criminal prosecution twice for the same criminal offense;
  • the moment of criminal prosecution is the moment of notification of a person on suspicion of committing a crime;
  • it is not allowed to conduct two or more pre-trial investigations into one criminal offense;
  • it is not allowed to report a person twice on suspicion of committing the same criminal offense.

These conclusions are consistent with the case law, in particular with the decisions of the Dnieper Court of Appeal of 03.02.2020 in case № 932/18698/19, Kirov District Court of Dnipropetrovsk from 14.02.2020 in case № 201/10434/19.

Lawyers drew the court’s attention to the fact that the prosecution handed 06.12.2021 notice of suspicion of teaching a crime under Part 4 of Art. 190 of the Criminal Code of Ukraine, in fact reopened the process of bringing the latter to criminal responsibility and launched a second pre-trial investigation into the commission of the same criminal offense, based on the following.

In the report of suspicion dated 06.12.2021, the prosecution noted a summary of the facts of the criminal offense in which the person is suspected, including the time, place of its commission, and other significant circumstances known at the time of the report of suspicion, namely: “Person , acting intentionally, committing a continuing crime consisting of identical acts, which was in long-term preparation in the period from 11/25/2016 to 04/28/2018, according to a single and well-known plan to commit a crime by prior conspiracy with other persons who played roles in an organized group “Operator”, “technical worker”, “broker”, being on the territory of Ukraine, using web resources, as well as business entities, seized by deception and abuse of trust and conducting illegal transactions using electronic computers, funds of victims for the total amount of UAH 1,542,207. 60 kopecks, which is a particularly large amount.

Already on December 12, 2018, during the criminal proceedings №120180000000000232, the prosecution handed over a notice of suspicion in the doctrine of a criminal offense, specified in the notice of suspicion of 06.12.2021, and conducted a pre-trial investigation.

On February 18, 2019, the prosecutor in the criminal proceedings, the materials of pre-trial investigations in criminal proceedings №120180000000000232 and №12018040000000337 were combined into one criminal proceeding, about which information was entered into the Unified Register of pre-trial investigations for №12017804000000. Subsequently, on April 5, 2019, the materials of pre-trial investigations in criminal proceedings №12018160470000733 and №12018040000000337 were merged, as reported in the Unified Register of Pre-trial Investigations under 20112018160470000733. On February 13, 2020, the materials concerning the suspects were separated from the criminal proceedings №12018160470000733 into a separate proceeding under 2012020000000000119.

On March 22, 2021, the Pechersk District Court of Kyiv in the case №757 / 11767/21-k adopted a decision obliging the authorized prosecutor in the criminal proceedings №12020000000000119 to take the actions specified in paragraph 10 part 1 of Art. 284 of the Criminal Procedure Code of Ukraine.

The prosecution in the notice of suspicion of 12.12.2018 noted a summary of the facts of the criminal offense in which the person is suspected, including the time, place of its commission, other significant circumstances known at the time of notification of suspicion, namely: “Person , acting intentionally, committing a continuing crime consisting of identical acts, which was in long-term preparation in the period from 02/09/2016 to 11/05/2018, according to a single and well-known plan to commit a crime by prior conspiracy with other persons who played roles in an organized group “Operator”, “technical worker”, “broker”, being on the territory of Ukraine, using web resources, as well as business entities, seized by deception and abuse of trust and conducting illegal transactions using electronic computers, funds of victims for the total amount of UAH 20,905,795. 30 kopecks, which is a particularly large amount.

After analyzing the reports of suspicion from 12.12.2018 and from 06.12.2021 in the doctrine of the crime provided for in Part 4 of Art. 190 of the Criminal Code of Ukraine, and the materials of criminal proceedings, it is obvious that the above suspicions are about the commission of the same continuing criminal offense.

In particular, this is evidenced by the following facts:

  • Both reports of suspicion refer to the same continuing crime, which consisted of many identical acts, combined with a single intent and plan to seize the use of web resources, as well as businesses with funds of indefinite number of victims since the beginning 2016 to November 2018.
  • The texts of the reports of suspicion dated 12.12.2018 and 06.12.2021 are identical except for the description of certain identical acts, the periods of their commission and the owners of the funds (victims). The report of suspicion dated 06.12.2021 describes other identical acts of a continuing crime committed between the beginning of 2016 and November 2018.
  • Four victims, who are listed in the report of suspicion dated 06.12.2021, and twelve victims, who are listed in the report on suspicion, and from 12.12.2018, were involved and interrogated in criminal proceedings №120180000000000232 and №12018040000000337 year to March 2019, in which a pre-trial investigation was conducted against the clients of JSB “Prikhodko and Partners” in connection with the delivery of suspicion on 12.12.2018.
  • In particular, other materials of the criminal proceedings, which are used to substantiate the notice of suspicion of 06.12.2021, collected in the criminal proceedings №120180000000000232, №12018040000000337, №12018160470000733, within which the pre-trial investigation and in connection with the handing over of the suspect on 12.12.2018.

All the above facts indicate that in the reports of suspicion from 12.12.2018 and from 06.12.2021 in the doctrine of the crime provided for in Part 4 of Art. 190 of the Criminal Code of Ukraine, it is a question of commission of the same continuing criminal offense.

Based on the above, it is seen that the prosecution for violating the provisions of Art. 61 of the Constitution of Ukraine, Art. 2, 3, 7, 218 of the CPC of Ukraine re-reported the suspicion and re-launched a new pre-trial investigation into the fact of committing the same criminal offense.

Regarding the refusal to grant a request for precautionary measures due to unfounded suspicion.

In accordance with Part 2 of Art. 177 of the CPC of Ukraine, the basis for the application of a precautionary measure is the presence of reasonable suspicion of committing a criminal offense, as well as the risks that give sufficient grounds to the investigating judge, the court to believe that the suspect, accused, convict may perform actions under part one of this article. The investigator and the prosecutor shall not have the right to initiate the application of a precautionary measure without the grounds for this provided for in this Code.

Thus, it is not allowed to apply a precautionary measure without a reasonable suspicion that a person has committed a criminal offense.

On March 22, 2021, the Pechersk District Court of Kyiv in the case №757 / 11767/21-k adopted a decision obliging the authorized prosecutor in the criminal proceedings №12020000000000119 to take the actions specified in paragraph 10 part 1 of Art. 284 of the Criminal Procedure Code of Ukraine regarding the suspicion of clients of JSB “Prikhodko and Partners”.

In accordance with Part 1 of chap. 3 Regulations on the Unified Register of Pre-trial Investigations, the procedure for its formation and maintenance, approved by the Order of the Office of the Prosecutor General dated 30.06.2020 № 298:

– other information provided in electronic cards – within 24 hours from the moment of making a procedural decision or entry into force of the decision of the investigating judge (court).

In connection with the above. 24 hours after the announcement of the decision of 22.03.2021 in the case №757 / 11767/21-k clients of JSB “Prikhodko and Partners” lost the status of suspects.

Thus, the absence of suspicion precludes the possibility of choosing precautionary measures for the latter.

However, as established above, the prosecution on 06.12.2021 reported on suspicion of committing a crime under Part 4 of Art. 190 of the Criminal Code of Ukraine, in respect of which the latter have already been notified on 12.12.2018 of suspicion, and in respect of which a pre-trial investigation has already been conducted. Thus, the prosecution has no reasonable suspicion of committing a crime under Part 4 of Art. 190 of the Criminal Code of Ukraine.

Based on the above, it is obvious that the prosecution illegally and in violation of the CPC of Ukraine, filed and sent to the court a request for precautionary measures, in this regard, we consider it necessary to deny this request.

Regarding the refusal to satisfy the request for the application of a precautionary measure in connection with the expiration of the pre-trial investigation provided for in Part 2 of Art. 219 of the Criminal Procedure Code of Ukraine.

In accordance with paragraph 2 of Part 2 of Art. 219 of the CPC of Ukraine, the term of pre-trial investigation from the moment of entering information about the criminal offense in the Unified Register of pre-trial investigations to the date of notification to the person of suspicion is eighteen months – in criminal proceedings for serious or especially serious crime.

According to para. 2 item 10 part 1 of Art. 284 of the CPC of Ukraine, the investigator, investigator, prosecutor are obliged to close the criminal proceedings even if the pre-trial investigation, defined by Article 219 of this Code, has expired and no person has been notified of the suspicion.

Pre-trial investigation outside the pre-trial investigation is not allowed.

The petition for the application of a preventive measure in the form of detention dated 07.12.2021 states that the information on the criminal offense №12017100060003436 was entered on 15.07.2017. The notice of suspicion was served on December 6, 2021.

The period from the date of entering the information on the criminal offense №12017100060003436 to the day of suspicion (namely until 06.12.2021) is 4 years and 6 months.

Based on the above, it is seen that the term of the pre-trial investigation under Part 2 of Art. 219 of the CPC of Ukraine, in the criminal proceedings №12017100060003436 ended, in connection with which the prosecution unlawfully reported the suspicion, filed and sent to the court a request for precautionary measures.

Regarding the existence of grounds for the application of the provisions of paragraph 10 of Part 1 of Art. 284, part 5 of Art. 294 of the CPC of Ukraine as amended by the Law № 2147-VIII of 03.10.2017

On December 6, 2021, the Unified Register of Pre-trial Investigations in the framework of criminal proceedings 20112017100060003436 included information on reports of suspicion of clients of JSCB “Prikhodko and Partners”.

And according to section 4 of the Law № 2147-VIII of 03.10.2017:

the first part shall be worded as follows:

“The term of pre-trial investigation is calculated from the moment of entering information about the criminal offense in the Unified Register of pre-trial investigations until the day of appeal to the court with an indictment, request for coercive measures of medical or educational nature, request for release from criminal responsibility. criminal proceedings.

The term of pre-trial investigation from the moment of entering information on a criminal offense into the Unified Register of pre-trial investigations until the day of notification to the person of suspicion is:

  • six months – in criminal proceedings for a criminal offense;
  • twelve months – in criminal proceedings for a crime of small or medium gravity;
  • eighteen months – in criminal proceedings for a serious or particularly serious crime. “

Part 5 of Article 219 of the Criminal Procedure Code of Ukraine (which determines the terms of pre-trial investigation) was supplemented by the following provision:

Part one of Article 284 of the Criminal Procedure Code of Ukraine (which provides a list of grounds for closing criminal proceedings) was supplemented by paragraph 10 as follows: ” a serious or particularly serious crime against the life and health of a person. ”

Part one of Article 284 of the Criminal Procedure Code of Ukraine was supplemented with the paragraph “Investigator, investigator, prosecutor are obliged to close the criminal proceedings also when the pre-trial investigation period specified in Article 219 of this Code has expired and no person has been notified of suspicion.”

Part one of Article 303 of the Criminal Procedure Code of Ukraine (which provides a list of decisions, actions or omissions of the investigator and prosecutor that may be appealed during the pre-trial investigation) was supplemented by paragraph 10 as follows: “notification of the investigator notification of a person suspected of committing a criminal offense or two months from the date of notification of a person suspected of committing a crime, but not later closing the criminal proceedings or applying to the court with an indictment – the suspect, his lawyer or legal representative.

In accordance with paragraph 4 §2 “Final Provisions” of the Law of Ukraine “On Amendments to the Commercial Procedural Code of Ukraine, Civil Procedure Code of Ukraine, Code of Administrative Procedure of Ukraine and other legislative acts” №2147-VIII of October 3, 2017, subparagraphs 11- 27, 45 items 7 § 1 of this section shall enter into force three months after the entry into force of this Law, shall not have retroactive effect and shall apply to cases in which information on criminal offenses entered in the Unified Register of Pre-trial Investigations after the entry into force of these changes.

This Law entered into force on 15.12.2017, and therefore the above changes came into force on 15.03.2018.

Therefore, in the note to Part 5 of Article 219, paragraph 10, Part 1 of Article 284, Art. 294, item 10 part 1 of Art. 303 of the CPC of Ukraine states that the changes do not have retroactive effect and apply to cases in which information about a criminal offense entered in the Unified Register of pre-trial investigations after the entry into force of these changes.

Since there is no direct definition of such a concept as “information on criminal offenses entered into the ERDR”, the analysis of the norms of the current criminal procedure legislation of Ukraine shows the following.

According to Part 5 of Art. 214 of the CPC of Ukraine in the Unified Register of pre-trial investigations information on:

  • the date of receipt of the application, notification of a criminal offense or the discovery from another source of circumstances that may indicate the commission of a criminal offense;
  • last name, first name, patronymic (name) of the victim or applicant;
  • another source from which the circumstances that may indicate the commission of a criminal offense were identified;
  • a summary of the circumstances that may indicate the commission of a criminal offense, cited by the victim, the applicant or identified from another source;
  • preliminary legal qualification of the criminal offense with indication of the article (part of the article) of the Law of Ukraine on Criminal Liability;
  • last name, first name, patronymic and position of the official who entered the information in the register, as well as the investigator, prosecutor who entered the information in the register and / or initiated a pre-trial investigation;
  • other circumstances provided by the provisions of the Unified Register of Pre-trial Investigations.

According to paragraph 1, paragraph 1 of the Regulations on the procedure for maintaining the Unified Register of Pre-trial Investigation, approved by the Order of the Prosecutor General of Ukraine dated 06.04.2016 №139 (hereinafter – the Regulations), the register – created using an automated system electronic database , protection, accounting, search, generalization of data specified in paragraph 1 of Chapter 2 of this section, which are used for reporting, as well as providing information on information entered in the Register, in compliance with criminal procedure law and legislation governing the protection of personal data and access to information with limited access.

According to paragraph 1 of paragraph 2 of Regulation 1, the Register shall contain information on: time and date of receipt of the application, notification of a criminal offense or detection of other sources of circumstances that may indicate the commission of a criminal offense; last name, first name, patronymic (name) of the victim or applicant; another source from which the circumstances that may indicate the commission of a criminal offense were identified; a summary of the circumstances that may indicate the commission of a criminal offense, cited by the victim, the applicant or identified from another source; preliminary legal qualification of a criminal offense with indication of an article (part of an article) of the Law of Ukraine on Criminal Liability; transfer of materials and information to another body of pre-trial investigation or at the place of pre-trial investigation (part five of Article 36, part seven of Article 214, Articles 216, 218 of the CPC of Ukraine); last name, first name, patronymic of the head of the prosecutor’s office, pre-trial investigation body, investigator, prosecutor who entered information into the Register and / or initiated pre-trial investigation and / or carries out pre-trial investigation or procedural management; date of detention of the person; election, change and cancellation of a precautionary measure (Articles 176-178, 200, 202, 492, 493, 508 of the CPC of Ukraine); time and date of notification of suspicion, change of notification of suspicion, person notified of suspicion, legal qualification of the criminal offense suspected by the person, indicating the article (part of the article) of the Law of Ukraine on Criminal Liability (part four of article 278, article 279 CPC of Ukraine); time and date of drawing up the notice of suspicion, the person in respect of whom the notice of suspicion was issued, the legal qualification of the criminal offense in which the person is suspected, indicating the article (part of the article) of the Law of Ukraine on Criminal Liability. effective reasons (Article 277 of the CPC of Ukraine); a legal entity in respect of which measures of a criminal law nature may be applied (part eight of Article 214 of the CPC of Ukraine); date and grounds for conducting (canceling) a special pre-trial investigation (part six of Article 297-4 of the CPC of Ukraine); suspension and resumption of the pre-trial investigation (part four of Article 280, part two of Article 281, part three of Article 282 of the CPC of Ukraine); announcement of the search for the suspect (Article 281 of the CPC of Ukraine); unification and allocation of materials of pre-trial investigations (Article 217 of the CPC of Ukraine); extension of terms of detention and pre-trial investigation (Articles 197, 199, 219, 294 of the CPC of Ukraine); established, reimbursed material damages, the amount of lawsuits filed in criminal proceedings, the value of the seized property; completion of the pre-trial investigation (part three of Article 283 of the CPC of Ukraine); other information provided by the primary accounting documents.

Thus, from the systematic analysis of the above provisions of the legislation, information on criminal offenses entered into the ERDR is information about the facts and circumstances of criminal proceedings which are included in the ERDR provided by the CPC of Ukraine and the Regulations on the Unified Register of Pre-trial Investigation.

In particular, the date and time of notification of suspicion, legal qualification of the criminal offense in which the person is suspected, indicating the article (part of the article) of the Law of Ukraine on Criminal Liability shall be immediately entered by the investigator, prosecutor in the Unified Register of Pre-trial Investigations. Ukraine) – this also applies to the notice of suspicion (Part 1 of Article 279 of the CPC of Ukraine).

Including information on suspension (Part 4, Part 280 of the CPC of Ukraine), resumption (Part 3 of Article 282 of the CPC of Ukraine) and continuation of the pre-trial investigation is entered into the Unified Register of Pre-trial Investigations.

That is, information on reports of suspicion, suspension, resumption and continuation of pre-trial investigation is also information on criminal offenses entered in the Unified Register of Pre-trial Investigations, and therefore, if this information was entered into the ERDR after 15.03.2018, regardless of ERDR existed until March 16, 2018 or not, it is necessary to follow the provisions of the CPC of Ukraine as amended by Law №2147-VIII of 03.10.2017 in this criminal proceeding №12017100060003436, and this will comply with paragraph 4 §2 “Final Provisions” of the Law of Ukraine ” On Amendments to the Commercial Procedural Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Procedure of Ukraine and other legislative acts ”№ 2147-VIII of October 3, 2017.

Since paragraph 4 of the Final Provisions of the above law does not refer to information on the beginning of the pre-trial investigation, or the first, initial information entered in the ERDR, but on information on criminal offenses entered in the Unified Register of Pre-trial Investigations after the implementation of these changes. Thus, the main date for applying the provisions of the CPC of Ukraine in the wording of Law №2147-VIII of 03.10.2017 is not the date when the pre-trial investigation was initiated, but the date of entering certain information on criminal proceedings into the ERDR.

Given the fact that information about the criminal offense in the ERDR in criminal proceedings №12017100060003436 entered 06.12.2021 (notice of suspicion), ie after the entry into force of changes in accordance with the law № 2147-VIII from 03.10.2017, in this criminal proceeding is necessary apply the provisions of the CPC of Ukraine in the wording of this Law, which provides as a basis for closing the criminal proceedings – the expiration of the pre-trial investigation after notification of suspicion, defined by Article 219 of this Code.

A similar position on the application of the provisions of Law №2147-VIII of 03.10.2017 to criminal proceedings, the initial information of which was entered into the ERDR before the entry into force of these changes is also taken by the Supreme Court of Ukraine from 26.05.2020 in case №712 / 6375 / 18, the decision of the Supreme Court of 26.05.2020 in case №556 / 1381/18, the decision of the Supreme Court of 25 November 2020 in case №201 / 10434/19, as well as the Dnieper Court of Appeal in the decision of 10.09.2021 on case №201 / 3571/20, which dismissed the prosecutor’s appeal and upheld the decision of the court of first instance (see annexes).

In this regard, it should be noted that the provisions of paragraph 51, paragraph 56 of the judgment of the European Court of Human Rights of 14 October 2010 in the case “Shchokin v. Ukraine” defined the concept of quality of law, including requiring it to be available to interested parties. clear and predictable in its application.

The lack of the necessary clarity and accuracy in national legislation violates the requirement of “quality of law”. Where national law provides for ambiguous or multiple interpretations of the rights and responsibilities of individuals, national authorities are obliged to take the most favorable approach to individuals. That is, the resolution of conflicts in the law is always interpreted in favor of the individual.

The European Court of Human Rights has repeatedly drawn attention to the need to respect the principle of legal certainty. Thus, the case law of the European Court of Human Rights is based on the fact that discrimination of a person on any grounds is not allowed (judgment of 04.10.2012 in Chabauty v. France and 03.04.2012 in Van der Heijden v. The Netherlands). Therefore, the defense party may not have different amounts of rights, including the right to close criminal proceedings, given only the date of entry of certain information in the ERDR.

In its judgment of 21 October 2010 in Action 97 v. Ukraine, the Court stated that procedural rules are established to ensure the proper administration of justice and the principle of legal certainty and, as the parties are entitled to expect, the application of these provisions. A norm cannot be considered a “law” if it is not formulated clearly enough, which enables a person to be guided by it in his actions (Hashman and Harrup v. The United Kingdom, judgment of 25 November 1999).

In its turn, the Constitutional Court in its decision of 22.09.2005 №5-rp / 2005 stated that “the constitutional principles of equality and justice imply the requirement of certainty, clarity and unambiguity of the legal norm, as otherwise it cannot ensure its uniform application, does not exclude unlimited interpretation in law enforcement practice and inevitably leads to arbitrariness “(paragraph 2, item 4.5, item 5 of the motivating part).

In addition, the case law of the European Court of Human Rights is based on the fact that discrimination of a person on any grounds is not allowed (judgment of 4.10.2012 in Chabauty v. France and 3.04.2012 in Van der Heijden v. The Netherlands) . Therefore, the defense party may not have a different scope of rights regarding the possibility of closing the criminal proceedings after notifying the person of suspicion, only in view of the date of entry of certain information in the ERDR.

According to Article 21 of the CPC of Ukraine, everyone is guaranteed the right to a fair trial and resolution of the case within a reasonable time by an independent and impartial court established on the basis of law.

According to the position of the European Court of Human Rights in many cases, the main component of the right to a court is the right of access, in the sense that a person should be able to go to court to resolve a particular issue and that the state should not have legal or practical obstacles to the exercise of this right.

According to Article 7 of the CPC of Ukraine, the content and form of criminal proceedings must comply with the general principles of criminal proceedings, which, in particular, include the rule of law. The investigating judge applies the principle of the rule of law, taking into account the case law of the European Court of Human Rights.

In the case law of the European Court of Human Rights, the rule of law is seen as integral to access to justice (Golder v. The United Kingdom). In the decision in the case “Bellet v. France ”further clarified that the rule of law in a democratic society determines the level of access to justice provided by national law, which should be sufficient to ensure a person’s right to a court.

The Funke v. France judgment states that the “quality” of domestic law under the Convention depends on the accuracy with which the law and case law determine the scope and conditions of the exercise of power, excluding the risk of arbitrariness. That is why, based on the judgment of the European Court of Human Rights in Olsson v. Sweden, it is necessary not only to take into account the quality of the law, but also to ensure that it complies with the rule of law. The latter requires the existence in domestic law of appropriate remedies against arbitrary interference by public authorities in the exercise of rights.

Based on the above, it is seen that in this case, taking into account the principle of the rule of law, the provisions of Part 2 of Art. 219, part 5 of Article 219, item 10, part 1 of Article 284, para. 2 item 10 part 1 of Art. 284, art. 294, item 10 part 1 of Art. 303 of the CPC of Ukraine as amended by Law № 2147-VIII of 03.10.2017 to the criminal proceedings № 12017100060003436, where information about the criminal offense was entered on 20.05.2020, 23.03.2021, 30.08.2021, 09.09.2021, ie after the entry into force of the above changes .

Regarding the refusal to satisfy the request for the application of a precautionary measure, due to the lack of risks of committing actions under Part 1 of Art. 177 of the Criminal Procedure Code of Ukraine.

In accordance with Part 2 of Art. 177 of the CPC of Ukraine, the basis for the application of a precautionary measure is the presence of reasonable suspicion of committing a criminal offense, as well as the risks that give sufficient grounds to the investigating judge, the court to believe that the suspect, accused, convict may perform actions under part one of this article. The investigator and the prosecutor shall not have the right to initiate the application of a precautionary measure without the grounds for this provided for in this Code.

In accordance with Part 1 of Art. 177 of the CPC of Ukraine, the purpose of the precautionary measure is to ensure the fulfillment of the suspect, the accused procedural duties imposed on him, as well as to prevent attempts:

  • to hide from the bodies of pre-trial investigation and / or court;
  • destroy, conceal or distort any of the items or documents that are essential to establish the circumstances of the criminal offense;
  • to illegally influence a victim, witness, other suspect, accused, expert, specialist in the same criminal proceedings;
  • obstruct criminal proceedings in other ways;
  • to commit another criminal offense or to continue a criminal offense in which he is suspected or accused.

The prosecution in its request for precautionary measures in the form of detention stated that there are risks that the suspect will commit the acts provided for in paragraph 1, paragraph 4 of Part 1 of Art. 177 of the CPC of Ukraine, namely to hide from the pre-trial investigation and / or court; obstruct criminal proceedings in another way.

However, this does not correspond to the circumstances of the case, as in connection with the report of suspicion of committing a crime under Part 4 of Art. 190 of the Criminal Code of Ukraine, on December 13, 2018, a precautionary measure was already chosen, which was later replaced by a milder one, as the suspect performed all his procedural duties and did not violate the law. For the past 3 years, the latter has not taken any action aimed at hiding from the pre-trial investigation, court or otherwise obstructing criminal proceedings.

Thus, there are no risks of a person committing actions under Part 1 of Art. 177 of the Criminal Procedure Code of Ukraine. The court took into account all the arguments of the lawyers, see the result for yourself.

 

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