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HOW TO BRING THE PROSECUTOR TO RESPONSIBILITY?

A citizen of Canada, who has been wanted nationally and internationally since 2014, applied to the Prikhodko & Partners Law Firm, and the Office of the Attorney General conducted a pre-trial investigation.

After analyzing the situation and the register of court decisions, it was found that more than 10 different well-known lawyers were involved in this case, but no positive results were achieved.

Due to the non-standard approach to solving complex criminal cases, in less than a month the court closed the criminal proceedings.

At the same time, on the example of this case, the following procedural measures were taken to bring the prosecutor to justice.

Bring the prosecutor to justice

The Deputy Prosecutor General illegally extended the pre-trial investigation in CP № 42014000000000537 for up to 3 months.

Complaints should be considered on the basis of the rule of law, legality, objectivity and impartiality. Objectivity and impartiality can only be ensured by reviewing the complaint and evaluating the actions of another prosecutor whose actions are not subject to appeal.

In this regard, it is inadmissible to refer the complaint to the Deputy Prosecutor General for consideration.

On 12.05.2014 it was reported on suspicion of committing criminal offenses under Part 2 of Art. 15, part 5 of Art. 27, part 3 of Art. 371; Part 2 of Art. 15, part 5 of Art. 27, part 2 of Art. 372; Part 1 of Art. 14, part 5 of Art. 27, part 2 of Art. 146 of the Criminal Code of Ukraine within the criminal proceedings № 120130000000000502 dated 22.08.2013.

On June 19, 2014, the materials of the pre-trial investigation against the suspect were allocated to a separate proceeding under № 42014000000000537.

On June 19, 2014, the pre-trial investigation in KP № 42014000000000537 was stopped on the basis of item 2 part 1 of Art. 280 of the Criminal Procedure Code of Ukraine.

On July 16, 2014, the pre-trial investigation in KP № 42014000000000537 was resumed due to the need to take procedural actions.

On July 17, 2014, the pre-trial investigation in KP № 42014000000000537 was stopped again on the basis of item 2 part 1 of Art. 280 of the Criminal Procedure Code of Ukraine.

On November 11, 2014, the pre-trial investigation in KP № 42014000000000537 was resumed due to the need to take procedural actions.

11.11.2014 again pre-trial investigation in KP № 42014000000000537 was suspended on the basis of paragraph 2 of Part 1 of Art. 280 of the Criminal Procedure Code of Ukraine.

As of November 11, 2014, the pre-trial investigation within the CP № 42014000000000537 against the suspect lasted 41 days

20.05.2020 The Deputy Prosecutor General adopted a resolution on the appointment of a group of prosecutors in the CP № 42014000000000537.

In accordance with Part 1 of Art. 282 of the CPC of Ukraine, Suspended pre-trial investigation is resumed by a resolution of the investigator, prosecutor, if the grounds for its suspension ceased to exist (suspect recovered, his whereabouts established, completed proceedings within international cooperation), and if necessary investigative (investigative) or other procedural actions. A copy of the decision to reopen the pre-trial investigation shall be sent to the defense party, the victim, and the representative of the legal entity in respect of which the proceedings are being conducted.

Thus, the norms of the CPC of Ukraine oblige to reopen the pre-trial investigation in case of necessity to perform a procedural action (appointment of a group of prosecutors is a procedural action) in the suspended pre-trial investigation. Based on this, it can be seen that the pre-trial investigation into the suspect was first resumed on May 20, 2020, and then a new group of prosecutors was appointed.

The next time the pre-trial investigation in KP № 42014000000000537 was stopped was on March 23, 2021. The pre-trial investigation on the date of the last suspension order has been going on for more than 11 months.

Based on the above, it is seen that the two-month period provided for in paragraph 4 of Part 3 of Art. 219 of the Criminal Procedure Code of Ukraine, ended.

On August 30, 2021, the pre-trial investigation in KP № 42014000000000537 was resumed and stopped.

On August 30, 2021, the investigator of the investigative group of the State Security Service of Ukraine addressed the Deputy Prosecutor General with a request to extend the pre-trial investigation to three months.

On September 9, 2021, the Deputy Prosecutor General extended the pre-trial investigation into the suspect by up to 3 months.

In accordance with paragraph 4 of Part 3 of Art. 219 of the CPC 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 paragraph 10 of Part 1 of Art. 284 of the CPC of Ukraine, criminal proceedings are closed if: after notifying the person of suspicion expired pre-trial investigation under 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.

In accordance with Part 4 of Art. 284 of the CPC of Ukraine, on the closure of criminal proceedings investigator, investigator, prosecutor adopts a resolution that can be appealed in the manner prescribed by this Code. The prosecutor shall make a decision to close the criminal proceedings against the suspect on the grounds provided for in part one of this article, except for the case provided for in the fourth paragraph of this part.

In accordance with paragraph 1 of Part 2 of Art. 283 of the CPC of Ukraine, the prosecutor is obliged as soon as possible after notifying the person of suspicion to take one of the following actions: to close the criminal proceedings.

In accordance with Part 5 of Art. 294 of the CPC of Ukraine, a request to extend the pre-trial investigation shall be submitted no later than five days before the expiration of the pre-trial investigation, established by Article 219 of this Code. The expired pre-trial investigation is not renewable.

Based on the above rules, it is seen that the period of pre-trial investigation after the notification of suspicion is 2 months. If necessary, this period may be extended to three months, but a request for such extension must be submitted no later than 5 days before the expiration of such period. If the term of pre-trial investigation has expired, it is not subject to resumption, and criminal proceedings are subject to closing on the basis of item 10 of h. 1 Art. 284 of the Criminal Procedure Code of Ukraine.

We would like to draw your attention to the fact that the Deputy Prosecutor General adopted a resolution to extend the pre-trial investigation into MI Friedental to 3 months at a time when the pre-trial investigation had been going on for more than 11 months.

Thus, the Deputy Prosecutor General’s decision to extend the pre-trial investigation into Friedental MI for up to 3 months is a gross violation of Art. Art. 219, 284, 294 of the CPC of Ukraine.

Violation of reasonable time by procrastination

Reasonable time is one of the general principles of criminal proceedings.

In accordance with Part 1 of Art. 28 of the CPC of Ukraine, During criminal proceedings, every procedural action or procedural decision must be executed or adopted within a reasonable time. The time limits that are objectively necessary for the performance of procedural actions and the adoption of procedural decisions are considered reasonable. Reasonable time may not exceed the time limits provided for in this Code for the performance of certain procedural actions or the adoption of certain procedural decisions.

In accordance with Part 2 of Art. 28 of the CPC of Ukraine, the pre-trial investigation within a reasonable time is provided by the prosecutor, the investigating judge (in terms of terms of consideration of issues within its competence), and court proceedings – the court.

Part 5 of Article 28 of the CPC of Ukraine stipulates that everyone has the right to be charged or to be prosecuted as soon as possible, or to have the relevant criminal proceedings closed.

According to Art. 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.

Based on the above, it is seen that the prosecutor must make procedural decisions and perform procedural actions within a reasonable time. These terms may not exceed the terms specified by the CPC of Ukraine.

Thus, the pre-trial investigation should be conducted within a reasonable time, which may not exceed the time limits provided by the CPC of Ukraine. Paragraph 3 of Part 4 of Art. 219 of the CPC of Ukraine provides for maximum time for pre-trial investigation after notifying a person of suspicion. Exceeding these deadlines is a violation of the principle of reasonable time.

In accordance with paragraph 4 of Part 3 of Art. 219 of the CPC 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.

Please note that on the date of the Deputy Prosecutor General’s decision to extend the pre-trial investigation into the suspect for up to 3 months, namely 09.09.2021, the pre-trial investigation has lasted more than 11 months.

Part 1 of Article 283 of the CPC of Ukraine establishes that a person has the right to have the charges against him in court as soon as possible or to terminate it 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 decide whether -which criminal charges have been brought against him.

At the same time, paragraph 95 of the judgment of the European Court of Human Rights in the case of Nakhmanovich v. The Russian Federation of 2 March 2006, application № 55669/00, states that . According to paragraphs 70, 75 and 76 of the judgment of the European Court of Human Rights in 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 guilt, no innocent person has been charged or convicted, no person has been subjected to unreasonable procedural coercion, and every participant in criminal proceedings has been subject to due process of law.

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). Nakhmanovich v. Russia), Application №55669 / 00, 2 March 2006, § 89).

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 legislative acts.

Based on the above, it is seen that the adoption of the Deputy Prosecutor General’s decision to extend the pre-trial investigation of the suspect up to 3 months outside the time limits provided for in Art. 219 of the CPC of Ukraine, is a gross violation of the principle of reasonable time.

Close the criminal proceedings

In accordance with paragraph 4 of Part 3 of Art. 219 of the CPC 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 paragraph 10 of Part 1 of Art. 284 of the CPC of Ukraine, criminal proceedings are closed if: after notifying the person of suspicion expired pre-trial investigation under 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.

In accordance with Part 4 of Art. 284 of the CPC of Ukraine, on the closure of criminal proceedings investigator, investigator, prosecutor adopts a resolution that can be appealed in the manner prescribed by this Code. The prosecutor shall make a decision to close the criminal proceedings against the suspect on the grounds provided for in part one of this article, except for the case provided for in the fourth paragraph of this part.

In accordance with paragraph 1 of Part 2 of Art. 283 of the CPC of Ukraine, the prosecutor is obliged as soon as possible after notifying the person of suspicion to take one of the following actions: to close the criminal proceedings.

As noted above, on the day the Deputy Prosecutor General issued a decision to extend the pre-trial investigation into the suspect for up to 3 months, the pre-trial investigation had in fact lasted more than 11 months.

Thus, the terms of the pre-trial investigation of the suspect provided for in Art. 219 of the CPC of Ukraine, ended, in connection with which the criminal proceedings are subject to closure on the basis of paragraph 10 of Part 1 of Article. 284 of the Criminal Procedure Code of Ukraine.

In accordance with Part 1 of Art. 308 of the CPC of Ukraine, the suspect, accused, victim, other persons whose rights or legitimate interests are limited during the pre-trial investigation, have the right to appeal to a higher level prosecutor for failure to meet reasonable deadlines investigator, investigator, prosecutor during the pre-trial investigation.

In accordance with Part 2 of Art. 308 of the CPC of Ukraine, the higher prosecutor is obliged to consider the complaint within three days after its filing and if there are grounds for its satisfaction to provide the relevant prosecutor with binding instructions on the timing of certain procedural actions or procedural decisions. The person who filed the complaint shall be immediately notified in writing of the results of its consideration.

Based on the above, the higher-level prosecutor is obliged to instruct the head of the procedural head in KP № 42014000000000537, within which the pre-trial investigation of the suspect is carried out, to adopt a decision to close the criminal proceedings under paragraph 10, part 1 of Art. 284 of the Criminal Procedure Code of Ukraine.

In accordance with paragraph 1. Part 1 of Art. 43 of the Law “On the Prosecutor’s Office”, the prosecutor may be subject to disciplinary action in disciplinary proceedings on such grounds of non-performance or improper performance of official duties.

In accordance with Part 3 of Art. 308 of the CPC of Ukraine, officials guilty of failure to comply with reasonable deadlines may be held liable in accordance with the law.

As established above, the Deputy Prosecutor General, by adopting a resolution on 09.09.2021 on the extension of the pre-trial investigation into the suspect for up to 3 months, grossly violated Art. Art. 28, 219, 284, 294 of the CPC of Ukraine.

The above indicates the existence of grounds for bringing the Deputy Prosecutor General to disciplinary responsibility.

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