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  • Article HOW TO APPEAL AGAINST THE RESOLUTION ON SUSPENSION OF THE PRE-TRIAL INVESTIGATION, TO RESUME THE INVESTIGATION AND TO OBLIGE THE INVESTIGATOR TO WORK?

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HOW TO APPEAL AGAINST THE RESOLUTION ON SUSPENSION OF THE PRE-TRIAL INVESTIGATION, TO RESUME THE INVESTIGATION AND TO OBLIGE THE INVESTIGATOR TO WORK?

[1] It is necessary to find a violation of Part 2 of Article 280 of the Criminal Procedure Code of Ukraine

According to Part 1 of Article 280 of the Criminal Procedure Code of Ukraine, the pre-trial investigation may be suspended after notifying the person of the suspicion if:

1) the suspect has contracted a serious illness that prevents his participation in criminal proceedings, provided that this is confirmed by an appropriate medical opinion;

2) wanted by the suspect;

2-1) the investigating judge refused to grant the request for a special pre-trial investigation;

3) there is a need to perform procedural actions within the framework of international cooperation.

The investigator’s decision to suspend the pre-trial investigation in the criminal proceedings, which is defended by lawyers of the Law Firm “Prikhodko and Partners” was suspended on the basis of paragraph 3 of part 1 of Article 280 of the Criminal Procedure Code of Ukraine, ie due to the need within the framework of international cooperation

According to Part 2 of Article 280 of the Criminal Procedure Code of Ukraine, before the suspension of the pre-trial investigation, the investigator is obliged to perform all investigative (search) and other procedural actions necessary and possible, as well as all actions to search for the suspect. in connection with the circumstances provided for in paragraph 2 of part one of this article.

Thus, the provisions of Part 2 of Article 280 of the Criminal Procedure Code of Ukraine provide for the duty of the investigator to fully and comprehensively investigate all the circumstances of the criminal proceedings on the date of termination of the proceedings by conducting all necessary and possible investigative (search) actions.

Based on the above, the decision of the investigator to suspend the pre-trial investigation, which was made in violation of the obligation to conduct all necessary and possible investigative (search) actions, is illegal and subject to cancellation.

At the time of the decision to suspend the pre-trial investigation in the criminal proceedings, the investigator had not carried out all the necessary investigative (search) actions, given the following.

The pre-trial investigation body has repeatedly requested the extension of duties imposed by the decision on the application of precautionary measures in the form of bail against the suspect, in connection with the need for investigative (search) and other procedural actions, including obtaining forensic examinations, interrogation of victims, examination of information carriers, documents, receipt of decisions on appointment of forensic examinations, examination of information carriers seized during searches, interrogation of persons who were officially employed, simultaneous interrogations, receipt of declassified materials of covert investigative (search) actions and others.

The above was also the basis for the senior investigator in particularly important cases to submit a request to the Main Investigation Department of the National Police of Ukraine to extend the pre-trial investigation, which was granted.

Thus, the materials of the criminal proceedings contained information indicating the need for investigative and other procedural actions until the pre-trial investigation was suspended. At the same time, most of the above-mentioned investigative and other procedural actions were not carried out until the suspension of the pre-trial investigation.

 Despite this, the impugned decision suspended the pre-trial investigation, which violated the mandatory rules of the CPC of Ukraine, in particular, Part 2 of Art. 280 of the CPC of Ukraine, which states the obligation of pre-trial investigation bodies to conduct all possible and necessary investigative (search) and other procedural actions. This leads to further unjustified delays in the pre-trial investigation and violation of the rights of persons involved in criminal proceedings.

A similar conclusion was reached by the investigating judge of the Pechersk District Court of Kyiv in his decision of February 19, 2019 in case № 757/6105/19-k.

Currently, there is a need for investigative actions, in particular, interrogations, in connection with which the senior investigator in particularly important cases of the GSU NP of Ukraine was sent a request for interrogation. However, in accordance with Part 5 of Art. 280 of the CPC of Ukraine, after the suspension of the pre-trial investigation, investigative (search) actions are not allowed, except for those aimed at establishing the location of the suspect.

Thus, the unlawful suspension of the pre-trial investigation in criminal proceedings violates the suspect’s right to a pre-trial investigation within a reasonable time.

 [2] Unreasonableness and unmotivatedness of the contested decision

The senior investigator in especially important cases of the Main Investigation Department of the National Police of Ukraine issued a decision to suspend the pre-trial investigation in the criminal proceedings on the basis of paragraph 3 of part 1 of Article 280 of the Criminal Procedure Code of Ukraine. , The Republic of the Marshall Islands, the Republic of Georgia, the United States of America, the State of Israel, the Republic of Azerbaijan.

  •  On July 3, 2019, the investigator of the Main Investigation Department of the National Police of Ukraine issued a decision to resume the pre-trial investigation in the criminal proceedings, arguing the need for procedural actions.

On the same day, July 3, 2019, the investigator again suspended the pre-trial investigation in connection with the sending of inquiries to the Republic of Cyprus, the Republic of the Marshall Islands, the Republic of Georgia, the United States, the State of Israel, and the Republic of Azerbaijan.

  • On July 8, 2019, the investigator again issued a decision to reopen the pre-trial investigation, due to the need for procedural actions.
  • On July 15, 2019, the investigator issued a decision to suspend the pre-trial investigation, also in connection with the conduct of procedural actions within the framework of international cooperation.
  • On July 16, 2019, the investigator resumed the pre-trial investigation in the criminal proceedings, due to the need for procedural actions.
  • On July 18, 2019, the investigator issued a decision to suspend the pre-trial investigation in connection with requests for international legal assistance in criminal proceedings to the Republic of Cyprus, the Republic of Marshall Islands, the Republic of Georgia, the United States, Israel, Azerbaijan, Azerbaijan Denmark, the Republic of Bulgaria, the Czech Republic.

 Given the above, it is obvious that the investigator uses the same grounds to suspend the pre-trial investigation in criminal proceedings, namely to send inquiries to the Republic of Cyprus, the Republic of Marshall Islands, the Republic of Georgia, the United States, Israel, Azerbaijan. Although the Main Investigation Department of the National Police of Ukraine did not receive any answers to these inquiries.

At the same time, given the provisions of Part 2 of Article 280 of the Criminal Procedure Code of Ukraine on the obligation to perform all necessary and possible investigative (search) and other procedural actions before deciding to suspend the pre-trial investigation, it is not clear what procedural actions the investigator wanted to do so by issuing resolutions on resumption of the pre-trial investigation dated 03.07.2019, 08.07.2019 and 16.07.2019.

Part 4 of Article 280 of the Criminal Procedure Code of Ukraine provides that the pre-trial investigation is terminated by a reasoned decision of the prosecutor or investigator in agreement with the prosecutor, information about which is entered into the Unified Register of pre-trial investigations.

Thus, the investigator deliberately artificially permanently suspends the pre-trial investigation by issuing unjustified and unfounded rulings, thereby violating the requirements of Part 4 of Article 280 of the Criminal Procedure Code of Ukraine, which is the basis for revoking the contested ruling.

[3] Unreasonableness of the need to apply for international legal assistance and lack of references to the probative value of the information obtained

In the contested decision, the investigator argues for the suspension of the pre-trial investigation by sending requests for international legal assistance in criminal proceedings to the Republic of Cyprus, the Republic of Marshall Islands, the Republic of Georgia, the United States, the Republic of Israel, the Republic of Azerbaijan, the Kingdom of the Kingdom.

Based on the circumstances of this criminal proceeding, the need to request international cooperation from the competent authorities of foreign countries is unfounded in view of the following.

Paragraph 3 of Part 1 of Article 280 of the Criminal Procedure Code of Ukraine provides that the pre-trial investigation may be suspended after notifying the person of suspicion if there is a need to perform procedural actions within the framework of international cooperation.

In this case, in accordance with Part 5 of Article 110 of the Criminal Procedure Code of Ukraine, the prosecutor’s decision consists of a motivating part, which must contain information on: the content of the circumstances that are grounds for the decision; the reasons for the decision, their justification and reference to the provisions of this Code.

Part 4 of Article 280 of the Criminal Procedure Code of Ukraine stipulates that a pre-trial investigation is terminated by a reasoned decision of the prosecutor or investigator in agreement with the prosecutor, information about which is entered into the Unified Register of Pre-trial Investigations.

Based on the analysis of these provisions of the Criminal Procedure Code of Ukraine, the investigator is obliged not only to indicate the article that is the basis for the decision, but also to justify the need for its application in a particular case.

Thus, making only a formal reference to paragraph 3 of part 1 of Article 280 of the Criminal Procedure Code of Ukraine, the investigator did not justify the need for international cooperation to the competent authorities of the Republic of Cyprus, Marshall Islands, Georgia, the United States, Israel, Azerbaijan The Kingdom of Denmark, the Republic of Bulgaria, the Czech Republic, why inquiries are sent to these countries.

International cooperation in criminal proceedings is a procedure governed by national and international law. Thus, Chapter 43 of the Criminal Procedure Code of Ukraine and the European Convention on Mutual Assistance in Criminal Matters of April 20, 1959 define specific requirements for a request. Considering that the prosecution did not specify in what way and on the basis of which norms it was sent to the above-mentioned countries. It is not possible to ascertain that the request was made in accordance with the procedure for international cooperation to the authorities recognized as a judicial authority for the purposes of the Convention.

This information is important for the legality of the decision to suspend the pre-trial investigation, because it is based on them that it is possible to assess whether the procedural action was actually performed within the framework of international cooperation.

At present, it is difficult to imagine what procedural actions the pre-trial investigation body wants to take through the authorities of the Republic of Cyprus, the Republic of Marshall Islands, the Republic of Georgia, the United States, the State of Israel, the Republic of Azerbaijan, the Kingdom of Denmark, the Republic of Bulgaria relations with the State, and therefore there is reason to believe that the submission of an unfounded request is only a reason to delay the criminal proceedings and is a violation of reasonable time in these criminal proceedings.

 Analyzing these rules of law, it should be concluded that the contested decision, adopted contrary to the requirements of Part 5 of Article 110 of the Criminal Procedure Code of Ukraine, does not contain adequate justification with reference to the provisions of this Code, as it does not specify the reasons for such proceedings abroad, which became the basis for such a decision, what procedural actions should be taken there, how such actions are consistent with the task of criminal proceedings, what the pre-trial investigation body should receive as a result of such actions, and how the requested assistance can confirm the existence or absence of circumstances, subject to proof in criminal proceedings.

At the same time, the contested decision does not specify the amount of legal assistance that the pre-trial investigation body intends to receive from the competent authorities of foreign states, does not specify what procedural actions provided by the legislation of Ukraine must be performed by the competent authorities of foreign states, these grounds for suspending the pre-trial investigation of the criminal proceedings concern the suspect, given that in the framework of the specified criminal proceedings, the suspicion was reported to several persons. At the same time, the suspension of the pre-trial investigation of criminal proceedings against all suspects leads to an unjustified violation of their right to conduct a pre-trial investigation against them within a reasonable time.

A similar conclusion was reached by the investigating judge of the Pechersk District Court of Kyiv in the decision of 27.05.2020 in case № 757/15235/20-k, in which he noted:

“In addition, the resolution does not contain information confirming the sending of relevant requests to the competent authorities of foreign states in the framework of international cooperation, as a result of which the investigators issued the decision, does not specify the amount of legal assistance that the pre-trial investigation body intends to receive from competent authorities of foreign states, does not indicate what procedural actions provided by the legislation of Ukraine must be carried out by the competent authorities of foreign states.

 Thus, the investigating judge concludes that the impugned decision is unmotivated, as provided for in Part 4 of Art. 280 of the Criminal Procedure Code of Ukraine, and the investigator’s decision to suspend the pre-trial investigation is unfounded and not proven. “

 Thus, the investigator did not comply with the requirements of the Criminal Procedure Code of Ukraine regarding the reasons for the decision and its justification, because it was made without a comprehensive, complete and impartial investigation of all the circumstances of the criminal proceedings.

 [4] Failure to meet reasonable pre-trial investigation deadlines

 Reasonableness of time is one of the general principles of criminal proceedings. Pursuant to Part 2 of Article 28 of the Criminal Procedure Code of Ukraine, a pre-trial investigation shall be conducted within a reasonable time by a prosecutor, an investigating judge (in terms of time limits for consideration of issues within its competence), and court proceedings by a court.

Part 5 of Article 28 of the Criminal Procedure Code of Ukraine stipulates that everyone has the right to have the charges against him as soon as possible or be the subject of a trial, or to have the relevant criminal proceedings closed.

According to Article 21 of the Criminal Procedure Code of Ukraine, everyone is guaranteed the right to a fair trial and a reasonable time by an independent and impartial tribunal established by law.

Part 1 of Article 283 of the Criminal Procedure Code of Ukraine provides that a person has the right to have the charges against him in court as soon as possible or to terminate them by closing the proceedings.

Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides that everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, which shall rule on his rights and obligations, which criminal charges were brought against him.

At the same time, in paragraph 95 of the judgment of the European Court of Human Rights in the case “Nakhmanovich v. The Russian Federation” of 2 March 2006, application № 55669/00, it is stated that authorities. According to paragraphs 70, 75 and 76 of the judgment of the European Court of Human Rights in the case of Merit v. Ukraine of 30 March 2004, application no.

According to Article 2 of the Criminal Procedure Code of Ukraine, the tasks of criminal proceedings are to protect individuals, society and the state from criminal offenses, protect the rights, freedoms and legitimate interests of participants in criminal proceedings, and ensure prompt, complete and impartial investigation and trial. who has committed a criminal offense has been prosecuted to the extent of his or her guilt, no innocent person has been charged or convicted, no person has been subjected to unreasonable procedural coercion, and each party to criminal proceedings has been subject to due process.

Given that the notice of suspicion was served on 12.12.2018, unreasonable suspension of the pre-trial investigation indefinitely is a violation of the rights of the suspect and in general the principles of criminal proceedings.

There was no need for international cooperation in this criminal proceeding, and the ruling to suspend the pre-trial investigation of August 5, 2019 is an abuse of procedural rights by the prosecution. The duration of the criminal proceedings against the suspect is not determined by objective reasons, as a result, the suspect. has been in a state of uncertainty about its legal status for a long time, and the suspension of the pre-trial investigation only leads to a significant delay in the court proceedings or the closure of this criminal proceeding.

Thus, the European Court of Human Rights points out that the Convention has consistently taken the approach that Article 6 in criminal matters “is intended to prevent the accused from being held in a state of uncertainty for too long “Nakhmanovich v. Russia”, Application № 55669/00, 2 March 2006, § 89).

Thus, the creation by the investigator of the pre-trial investigation of the state of uncertainty about the legal status of a person and the suspect’s stay in such a state for a long time (almost a year) contradicts Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Article 19 of the Constitution of Ukraine stipulates that public authorities and local self-government bodies, their officials are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine.

Part 1 of Article 9 of the Criminal Procedure Code of Ukraine provides that during criminal proceedings the court, investigating judge, prosecutor, head of the pre-trial investigation body, investigator, other officials of public authorities must strictly comply with the Constitution of Ukraine, this Code, international treaties, consent to the binding nature of which was given by the Verkhovna Rada of Ukraine, the requirements of other acts of legislation.

The requirements of Article 280 of the Criminal Procedure Code of Ukraine give the right to suspend the pre-trial investigation only if there is a need to perform procedural actions within international cooperation and only after the investigator has performed all investigative and other procedural actions necessary and possible.

Contrary to these requirements, the investigator of the Main Investigation Department of the National Police of Ukraine issued a decision to suspend the pre-trial investigation in the criminal proceedings, which is a violation of both the Criminal Procedure Code of Ukraine and the Constitution of Ukraine. There is no evidence to support the existence of statutory grounds for deciding to suspend the pre-trial investigation in criminal proceedings.

 Therefore, the decision of the investigator to suspend the pre-trial investigation in criminal proceedings is not motivated and made without all necessary and possible investigative actions, and the grounds for such suspension, ie the need to request international cooperation is not justified.

Given the above, this decision is subject to revocation by the investigating judge, and the pre-trial investigation in criminal proceedings, information about the beginning of which is entered in the ERDR, must be resumed under Part 2 of Article 282 of the Criminal Procedure Code of Ukraine.

 [5] Regarding the need for investigative (search) actions

One of the general principles of criminal proceedings is legality, which in accordance with Part 2 of Article 9 of the Criminal Procedure Code, is that the investigator must comprehensively, fully and impartially investigate the circumstances of criminal proceedings, identify both the circumstances that reveal and those , acquitting the suspect, accused, as well as circumstances that mitigate or aggravate his punishment, provide them with a proper legal assessment and ensure the adoption of lawful and impartial procedural decisions.

That is, the investigator of the Main Investigation Department of the National Police of Ukraine is obliged to conduct investigative (search) aimed at identifying the circumstances that justify the suspect.

Given the fact that the investigator of the Main Investigation Department of the National Police of Ukraine in substantiating requests for extension of duties imposed on the suspect and extension of the pre-trial investigation indicated the need for investigative (search) actions, but which were not conducted, we consider it necessary to conduct further investigative actions justifying the suspect:

  • Conducting an economic examination of the suspect’s card accounts to verify the suspect’s attitude to the damage caused to the victim in the criminal proceedings;
  • Interrogation of the suspect to identify the circumstances that justify the suspect;
  • Carrying out an inspection of information carriers seized during a search of the premises;
  • Examination of witnesses;
  • Carrying out simultaneous interrogations of victims and suspects.

 [6] Regarding the deadlines for filing a complaint against the investigator’s decision to suspend the pre-trial investigation

Paragraph 2 of Part 1 of Article 303 of the Criminal Procedure Code of Ukraine provides that the pre-trial proceedings may be appealed against such decisions, actions or omissions of the investigator or prosecutor, the decision of the investigator, the prosecutor to suspend the pre-trial investigation – the victim legal representative, representative of the legal entity in respect of which the proceedings are conducted.

Pursuant to Part 1 of Article 304 of the Criminal Procedure Code of Ukraine, complaints against decisions, actions or omissions of an investigator or prosecutor provided for in part one of Article 303 of this Code may be filed by a person within ten days of a decision, action or omission. If the decision of the investigator or prosecutor is formalized by a resolution, the term for filing a complaint begins from the day the person receives a copy of it.

The prosecution sent a decision to suspend the pre-trial investigation in the criminal proceedings by a simple letter to the defense (01601, Kyiv, 2 Mechnikova Street, floor 14). This letter was received by the defense on June 5, 2020, in connection with which it learned about the existence of the contested decision.

Given the above facts, I believe that there are grounds for renewing the deadline for filing a complaint under Article 303 of the Criminal Procedure Code of Ukraine.

 As a result, the investigator was obliged to carry out a number of investigative actions and the decision to suspend the pre-trial investigation was revoked.

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