Complaint against the investigator’s decision to refuse to grant the petition

Article 2 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the CPC) clearly states that the main purpose of criminal proceedings is to protect the rights of the individual, state and public interests from the consequences of various offenses. During the consideration of any case at the pre-trial investigation stage and in court, the legal rights, freedoms and interests of the participants in criminal proceedings must be respected. However, in practice, everything looks different. For example, there are quite a few cases where an investigator refuses to grant a motion within the framework of criminal proceedings. Lawyers from our law firm “Prіkhodko & Partners” recommend appealing both the actions and inaction of investigators. In this article, we will consider the importance of preparing and filing a complaint against the investigator’s decision to refuse to grant a motion.

Features of the procedure for appealing a decision of pre-trial investigation bodies

According to current legislation, the right to protection of a person in court is one of the fundamental human rights. This right is of particular importance within the framework of criminal proceedings. As statistics show, cases of this category are accompanied by a significant restriction of the constitutional rights and freedoms of suspects/accused.

The principle of adversarial proceedings is present at all stages of criminal proceedings. It is guaranteed, in particular, by the institution of judicial control over the actions, decisions or inaction of pre-trial investigation bodies. The functions of judicial control are assigned to the investigating judge.

Within the framework of a criminal case, motions are most often filed regarding:

• Providing access to documents and things for a certain period of time.

Article 159 of the CPC states that access to documents and things for a certain period of time provides for the possibility of familiarizing the suspect with them if there is a corresponding decision of the investigating judge.

To do this, the lawyer must indicate in the application: the fact that the seized items are in the possession of a specific legal entity or individual; the importance of the seized elements for establishing important circumstances of the criminal proceedings; the documents do not fall under the category of “secret”.

• Lifting the arrest of the suspect’s property.

Part one of Article 170 of the Criminal Procedure Code of Ukraine states that the arrest of property is a temporary measure that is established until its cancellation based on the decision of the investigating judge.

The arrest of property must ensure:

1. Special confiscation.
2. Preservation of the existing evidence base.
3. Punishment or legal measures in relation to the legal entity.
4. Compensation for the damage caused, recovery of unlawful benefits received by the legal entity.

In accordance with current legislation, the arrest of property may be canceled partially or completely based on the application of the suspect or lawyer. Conditions for cancellation: the seizure of property is groundless and was imposed without sufficient reasoning.

As judicial practice shows, investigators often refuse to grant a request to lift the seizure of property.

• Choosing an alternative preventive measure.

One of the types of measures aimed at ensuring the conduct of criminal proceedings is preventive measures.

The purpose of their use: hiding a person from pre-trial investigation bodies; the risk of destruction or distortion of documents or things that will be important for the investigation; illegal influence of the suspect on witnesses, the victim and other participants in the criminal proceedings; obstructing the investigation in any other way.

The investigating judge issues a ruling refusing to apply a preventive measure in cases where the prosecutor does not provide sufficient arguments for applying a preventive measure.

Case law on appealing investigator’s decisions

Current legislation limits the range of decisions that can be resolved by appealing at the pre-trial investigation stage. As case law shows, an investigator’s decision to refuse to satisfy a motion can be appealed within the framework of the case’s consideration in court.

The procedure for considering cases is reflected in Chapter 26, Article 303 of the Criminal Procedure Code of Ukraine. In particular, specific deadlines are established: 10 days from the moment the investigator committed an action, failed to act, or made a relevant decision.

The consideration of complaints takes place with the mandatory participation of the person who initiated its submission. The absence of the investigator is not an obstacle to considering the complaint.

Some of the complaints can be appealed in the appeal procedure. This applies to decisions related to the refusal to open proceedings or to satisfy a motion to close a criminal case.

The lawyers of our law firm "Prіkhodko & Partners" will be able to draft and file a complaint against the investigator's decision to refuse to satisfy the request. We will do everything possible to ensure that you achieve the desired result in the process of considering the criminal case!

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