HOW CAN A LAWYER USE INVESTIGATIVE OR TEMPORARY ACCESS METHODS IN THE PROSECUTOR’S OFFICE’S OFFICE?

Circumstances of a criminal offense

The Main Investigation Department of the National Police of Ukraine carried out a pre-trial investigation in criminal proceedings on the grounds of a criminal offense under Part 4 of Article 190 of the Criminal Code of Ukraine.

 On December 12, 2018, pursuant to Article 208 of the Criminal Procedure Code of Ukraine, a person was detained on suspicion of committing a criminal offense under Part 4 of Article 278 of the Criminal Procedure Code of Ukraine and a written notice of suspicion was served in accordance with Article 278 of the Criminal Procedure Code of Ukraine.

The prosecution noted that the person allegedly, acting intentionally, committing a continuing crime consisting of identical acts, which required long-term preparation in the period from 09.02.2016 to 05.1 1.2018, according to a single and well-known plan to commit a crime by prior conspiracy with a number of other unidentified by the pre-trial investigation persons who performed roles in the organized group of “operator”, “technician”, “broker”, being on the territory of Ukraine, using web resources, as well as business entities seized by deception and abuse of trust, conducting illegal operations with the use of electronic computers, as part of an organized group, with the funds of victims in the total amount of UAH 20,905,795.

The Investigator of the Main Investigation Department of the National Police of Ukraine repeatedly suspended, in connection with the need to take procedural actions within the framework of international cooperation, and resumed the pre-trial investigation, including decisions to suspend the pre-trial investigation from 06/27/2019, 07/03/2019, 07/15/2019 , 18.07.2019, 05.08.2019 and resolutions on resumption of pre-trial investigation from 03.07.2019, 08.07.2019, 16.07.2019.

Since the investigator sent orders to suspend and resume the pre-trial investigation by regular mail, the defense did not receive all the decisions on the criminal proceedings, in connection with which the defense is not able to determine the state of the pre-trial investigation, determine the timing of the pre-trial investigation. .

Given the fact that the total period of pre-trial investigation may not exceed 12 months from the date of notification of a person suspected of committing a serious or especially serious crime, and the pre-trial investigation in criminal proceedings began on 27.02.2018, the defense repeatedly appealed to the prosecution. requests for information on all cases of suspension and resumption of pre-trial investigation in criminal proceedings. However, the prosecution on all petitions, requests provided a denial of access to the above information.

Due to the impossibility to precisely determine the terms of the pre-trial investigation in this criminal proceeding, the defense is deprived of the opportunity to exercise its right to request the closure of criminal proceedings under paragraph 10 of part 1 of Article 284 of the Criminal Procedure Code of Ukraine.

Given the fact that all attempts by the defense to obtain information on all cases of suspension and resumption of pre-trial investigation in criminal proceedings, the prosecution refused, the defense was deprived of the opportunity to know the state of pre-trial investigation of the suspect, and unable to determine the timing of GSU NP Ukraine pre-trial investigation in the above criminal proceedings. Thus, the defense had no other way to obtain the above information, except to apply to the court for temporary access to things and documents, namely information (extract) from the Unified Register of pre-trial investigations into criminal proceedings from the form “Offenses” from the tab “Movement of proceedings”.

ON THE SIGNIFICANCE OF DOCUMENTS FOR ESTABLISHING IMPORTANT CIRCUMSTANCES IN CRIMINAL PROCEEDINGS

 In accordance with paragraph 4 of Part 3 of Art. 219 of the Criminal Procedure Code of Ukraine, from the date of notification to the person of suspicion the pre-trial investigation must be completed within two months from the date of notification to the person of suspicion of committing a crime.

In accordance with Part 4 of Art. 219 of the Criminal Procedure Code of Ukraine, the term of pre-trial investigation may be extended in the manner prescribed by paragraph 4 of Chapter 24 of this Code. The total term of the pre-trial investigation may not exceed:

1) one month from the date of notification to the person of suspicion of committing a criminal offense in the cases provided for in paragraphs 1 and 2 of part three of this article;

2) 6 months from the date of notification to the person of suspicion of committing a minor crime;

3) 12 months from the date of notification to the person of suspicion of committing a serious or especially serious crime.

In accordance with Part 5 of Art. 219 of the Criminal Procedure Code of Ukraine, the period from the date of the decision to suspend criminal proceedings to the decision to resume criminal proceedings, as well as the period of acquaintance with the materials of the pre-trial investigation by the parties to criminal proceedings in accordance with Article 290 of this Code is not included. article.

In accordance with paragraph 10 of Part 1 of Art. 284 of the Criminal Procedure Code of Ukraine, criminal proceedings are closed if: after notifying the person of suspicion expired pre-trial investigation, defined by Article 219 of this Code, except in the case of notifying a person of suspicion of committing a serious or especially serious crime against life and health .

Thus, the criminal procedure legislation of Ukraine sets the maximum time limit for the introduction of a pre-trial investigation from the date of notification of a person of suspicion in the amount of 12 months for serious and especially serious crimes. In case of expiration of the terms specified in Article 219, the criminal proceedings shall be closed.

In accordance with paragraph 4 of Part 1 of Art. 91 of the Criminal Procedure Code of Ukraine, in criminal proceedings are subject to proof: circumstances that affect the severity of the crime, characterize the identity of the accused, aggravate or mitigate punishment, which excludes criminal liability or is the basis for closing criminal proceedings.

Therefore, given the fact that the expiration of the pre-trial investigation is the basis for closing the criminal proceedings, the circumstances that indicate the expiration of such terms are subject to proof in accordance with Art. 91 of the Criminal Procedure Code of Ukraine.

The pre-trial investigation in the criminal proceedings began on February 27, 2018, and on February 13, 2020, the materials concerning the person were allocated to a separate proceeding. Thus, in order to calculate the runoff of pre-trial investigation in the above-mentioned proceedings, it is necessary to know the date of the beginning of the first criminal proceedings, the allocation of proceedings, as well as the dates of all cases of suspension and resumption of these proceedings.

Since the investigator of the GSU NP of Ukraine has repeatedly suspended and resumed the pre-trial investigation in this criminal proceeding, the dates of all decisions to suspend and resume the pre-trial investigation are circumstances to be proved in criminal proceedings, and information on the dates of such rulings is evidence circumstance.

 Thus, extracts from the Unified Register of Pre-trial Investigations in Criminal Proceedings from the form “Offenses” from the tab “Movement of Proceedings” are evidence that confirms the expiration or non-expiration of the pre-trial investigation, which is a mandatory circumstance to be proved.

CONCERNING THE NECESSITY OF OBTAINING AN EXTRACT FROM ERDR ON SELECTED CRIMINAL PROCEEDINGS

 In accordance with paragraph 7 of Part 1 of Art. 217 of the Criminal Procedure Code of Ukraine, the day of the pre-trial investigation in the proceedings allocated to a separate proceeding is the day when the investigation was initiated, from which separate materials were selected, and in the proceedings in which the materials of several pre-trial investigations are combined – the day of the investigation the proceedings that began earlier.

Thus, the term for initiating a pre-trial investigation is calculated from the day of the beginning of the investigation in the first criminal proceedings and is extended in connection with the allocation of materials from it in the criminal proceedings.

That is, in order to determine the timing of the pre-trial investigation of the suspect, it is necessary to know all cases of suspension and resumption of the pre-trial investigation, both in the first criminal proceedings and in the second criminal proceedings.

 ABOUT THE IMPOSSIBILITY OF OTHER WAYS TO PROVE THE CIRCUMSTANCES OF THE EXPIRY OF THE PRE-TRIAL INVESTIGATION

 Given that approximately 2.5 years have passed since the beginning of the pre-trial investigation in the criminal proceedings, and the investigator has not sent all orders to close and reopen criminal proceedings, the defense has repeatedly appealed to the prosecution, requesting information on all cases of suspension and resumption of pre-trial investigation in these criminal proceedings. However, the prosecution on all petitions, requests provided a denial of access to the above information.

Yes, in particular:

• Upon a request dated 09.06.2020 for acquaintance with the materials of the criminal proceedings, the National Police of Ukraine informed that on 13.02.2020 the materials concerning the person were allocated to a separate proceeding, and therefore refused to satisfy this request. However, the defense did not receive a decision on the allocation of materials.At the request of 07.07.2020 to provide an extract from the ERDR regarding the information contained in the column “Movement of criminal proceedings” on criminal proceedings, as well as information on the dates of decisions on suspension and resumption of pre-trial investigation in these criminal proceedings, Office of the Prosecutor General provided a response on the forwarding of the petition to the GSU NP of Ukraine.
• At the request of 07.07.2020 to provide an extract from the ERDR regarding the information contained in the column “Movement of criminal proceedings” in criminal proceedings, as well as information about the dates of decisions to suspend and resume pre-trial investigation in these criminal proceedings, GSU ​​NP Ukraine responded by refusing to provide the above information.
• At the request of a lawyer dated 10.06.2020 to provide an extract from the ERDR regarding the information contained in the column “Movement of criminal proceedings” in criminal proceedings to specify the time of pre-trial investigation in this criminal proceeding, the defense is deprived of the right to exercise its right to petition on closure of criminal proceedings on the basis of paragraph 10 of part 1 of Article 284 of the Criminal Procedure Code of Ukraine.

The above facts show that the defense used all possible ways to obtain information to prove the circumstances of the expiration of the pre-trial investigation in criminal proceedings, except for obtaining temporary access to things and documents.

Thus, the defense had no other way to obtain the above information, except to apply to the court for temporary access to things and documents, namely information (extract) from the Unified Register of pre-trial investigations into criminal proceedings from the form “Offenses” from the tab “Movement of proceedings”.

Thus, the inability to obtain information on the progress of criminal proceedings, which is essential in the case, is the basis for granting the defense’s request for temporary access to ERDR, namely extracts from ERDR from the form “Offense” from the tab “Movement of Proceedings”. This conclusion is formed by case law, in particular the rulings of the Supreme Anti-Corruption Court of June 5, 2020 in case № 910/304/19 and July 10, 2020 in case № 757/7845/19-k, the decision of the Court of Appeal of Kyiv of November 23, 2016 in the case № 11-ss / 796/3502/2016, the decision of the Kramatorsk City Court of the Donetsk region of April 11, 2019 in the case № 234/15535/18.

REGARDING THE ENTITY HAVING THE DOCUMENTS FOR WHICH THE TEMPORARY ACCESS IS APPLIED

 The Regulation on the Unified Register of Pre-trial Investigations, the procedure for its formation and maintenance (hereinafter – the Regulation) was approved by the Order of the Office of the Prosecutor General № 298 of June 30, 2020.

Pursuant to Section 3 “Access to Information Entered in the Register” of the Regulation, the right to access information entered in the Register has: Holder – in full, taking into account the powers vested in prosecutors and heads of departments of the Prosecutor General’s Office.

Pursuant to Clause 4 of Section 1 “Basic Principles of Maintaining the Unified Register of Pre-Trial Investigations” of the Regulation, the Holder of the Register is the Office of the Prosecutor General (hereinafter – the Holder).

In accordance with paragraph 5 of Section 1 “Basic principles of maintaining the Unified Register of pre-trial investigations” of the Regulation, the Holder carries out:

• development of means of organizational, methodological and program-technical maintenance of the Register;
• performing the functions of the Registry administrator (technical and technological creation and maintenance of the Registry software, its administration and monitoring of the use of information, storage and protection of the Registry data, control of the access right, etc.);
• organization of interaction with other state information systems, registers and databases;
• development and improvement of the regulatory framework for the functioning of the Register.

Section 3 “Access to information entered in the Register” The Regulation does not provide access to information entered in the Register, including information on the “Movement of Criminal Proceedings”.

According to the Regulations on the Unified Register of Pre-trial Investigations, the procedure for its formation and maintenance, the Office of the Prosecutor General is an entity in possession of information on the criminal proceedings, which indicates the possibility of temporary access to such information.

This statement is in line with the case law, in particular the Supreme Anti-Corruption Court, by its rulings of 5 June 2020 in case № 910/304/19 and 10 July 2020 in case № 757/7845/19-k granted temporary access to documents in in the possession of the Office of the Prosecutor General, namely information on the progress of criminal proceedings.

Thus, the information from the Unified Register of Pre-trial Investigations in Criminal Proceedings in the form of “Offenses” from the tab “Movement of Proceedings”, in respect of which this request for temporary access is submitted, is in the possession of the Office of the Prosecutor General.

Information (extract) from the Unified Register of Pre-trial Investigations in Criminal Proceedings from the form “Offenses” from the tab “Movement of Proceedings” does not contain a secret protected by law, as all copies of decisions to suspend and reopen criminal proceedings under criminal procedure law must be sent to the defense. This conclusion corresponds to the conclusion of the Supreme Anti-Corruption Court, which was formulated in the decision of June 5, 2020 in case № 910/304/19.