HOW TO CHANGE THE JURISDICTION OF CRIMINAL PROCEEDINGS IN THE SUPREME COURT OF UKRAINE?

Investigators of the Main Investigation Department of the National Police of Ukraine under the procedural guidance of a group of prosecutors of the Office of the Prosecutor General of Ukraine have completed a pre-trial investigation in one of the criminal proceedings involving our criminal lawyers.

According to the electronic message of the court dated 18.05.2022, the defense learned that the materials of the criminal proceedings contrary to the requirements of Art. 32 of the Criminal Procedure Code of Ukraine (hereinafter - the CPC of Ukraine) the prosecution sent to Ordzhonikidze District Court of Zaporozhye.

Lawyer for Criminal Cases (Kyiv), noted that according to Part 1 of Art. 32 of the CPC of Ukraine, criminal proceedings are conducted by the court within the territorial jurisdiction of which the criminal offense was committed. If several criminal offenses have been committed, the criminal proceedings shall be conducted by a court within the territorial jurisdiction of which the more serious offense was committed, and if they were of the same gravity, by a court within the territorial jurisdiction of which the last criminal offense was committed. If the place of commission of a criminal offense cannot be determined, the criminal proceedings shall be conducted by a court within the territorial jurisdiction of which the pre-trial investigation has been completed.

The content of the indictment shows that the accused, acting intentionally, committing a continuing crime consisting of identical acts that required long-term preparation, at different times, according to a single and well-known plan to commit a crime by prior conspiracy with other unidentified pre-trial investigators, who performed roles in an organized group of "operators", "technicians", "brokers", being on the territory of Ukraine, using web resources and non-resident companies, as well as business entities of Ukraine seized by deception and abuse of trust, by carrying out illegal operations with the use of electronic computers, funds of the victims in the total amount of 20,905,795 hryvnias 06 kopecks, which is a particularly large amount.

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According to the indictment, the place of the criminal offense was not established during the pre-trial investigation.

Thus, in the section "Summary of the facts of the criminal offense, which the prosecutor considers established, it is noted only that in order to more effectively carry out planned criminal acts, search for accomplices to commit a crime and acquire business entities, which were subsequently used to cover up illegal activities to seize someone else's property on a particularly large scale, took place in the city of Kiev.In addition, the same section states that on behalf of the main accused, members of the organized group were to set up so-called “operators” and “brokers” offices in Kyiv and some regional centers of Ukraine, where other members of the organized group used devices and Devices that provide SIP, IP-telephony and VoIP, in order to gain the trust of victims, will create in the latter misconceptions about the cooperation of members of the organized group with foreign companies from different countries.

In addition, the same section states that calls to persons recognized as victims in criminal proceedings were made by unidentified persons from among the members of an organized group on the territory of Ukraine in one of the above-mentioned offices of "operators".

Thus, the jurisdiction of this criminal proceeding should be determined by the court within whose territorial jurisdiction the pre-trial investigation is completed.

Territorial jurisdiction is determined by the location (registration) of the relevant state body, which is a legal entity and which includes the investigative unit. This was determined by the Supreme Specialized Court of Ukraine for Civil and Criminal Cases in letter -16 1-1640 / 0 / 4-13 dated 15.10.2013 and noted by the Supreme Court by the panel of judges of the First Judicial Chamber of the Criminal Court of Cassation in considering the case № 607/16332 / 20.

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The indictment shows that the pre-trial investigation in the criminal proceedings was completed by the investigator of the Main Investigation Department of the National Police of Ukraine.

At the same time, according to the Unified State Register of Legal Entities and Individual Entrepreneurs, as well as the website youcontrol.com.ua, the location of the legal entity is the National Police of Ukraine (USREOU 40108578), whose structural unit is the Main Investigation Department USREOU 40108578) is: 01601, Kyiv, street Worshiper, bldg. 10.

Thus, the Main Investigation Department of the National Police of Ukraine as a pre-trial investigation body is within the territorial jurisdiction of the Pechersk District Court of Kyiv.

According to the provisions of Art. 38 of the CPC, the bodies of pre-trial investigation (bodies conducting inquiries and pre-trial investigations) are:

• investigative units: a) bodies of the National Police; b) security authorities; c) bodies that monitor compliance with tax legislation; d) bodies of the State Bureau of Investigation;
• detective units, internal control unit of the National Anti-Corruption Bureau of Ukraine.

That is, the current criminal procedure law determines the bodies of pre-trial investigation not officials - investigators of these bodies of pre-trial investigation - but the relevant state institutions - investigative units and units of detectives. Article 1 of the CPC stipulates that the procedure of criminal proceedings on the territory of Ukraine is determined only by the criminal procedural legislation of Ukraine, which consists of the relevant provisions of the Constitution of Ukraine, international treaties, binding consent of the Verkhovna Rada of Ukraine, this Code and other laws of Ukraine. Part 6 of Art. 9 of the CPC stipulates that in cases where the provisions of this Code do not regulate or ambiguously regulate the issues of criminal proceedings, the general principles of criminal proceedings, defined in Part 1 of Art. 7 of this Code.

Thus, territorial jurisdiction is determined by the location (registration) of the relevant state body, which is a legal entity and which includes the investigative unit.

This conclusion is consistent with the position of the Supreme Court, set out in the decision of 22.04.2020 in the case № 487/7605/19 (pr. № 51-1901vps20).

Establishing the rules of jurisdiction is important for the proper functioning of the judicial system, as well as for the courts to perform their tasks and determine the court competent to conduct criminal proceedings on a specific criminal offense. Jurisdiction is an effective means of ensuring that a particular criminal case is considered and decided by a court that is lawful, competent, independent and impartial, as required by Art. 7 of the Universal Declaration of Human Rights and Part 1 of Art. 14 of the International Covenant on Civil and Political Rights.

According to paragraph 1 of Art.6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter - the Convention) "in the determination of the merits of any criminal charge against him," everyone is entitled to a fair and public hearing by an independent tribunal. And in accordance with Part 1 of Art. 8 of the Law of Ukraine "On the Judiciary and the Status of Judges" of June 2, 2016 № 1402-VIII no one may be deprived of the right to have his case heard in the court to whose jurisdiction it is assigned by procedural law.

In accordance with Part 1 of 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.

The rules of jurisdiction also ensure the equality of all citizens before the law and the courts (Article 24 of the Constitution of Ukraine and Article 10 of the CPC). As one of the manifestations of this constitutional principle, the jurisdiction clearly established by law acquires the features of a subjective human right to a lawful judge, ie the right of any person to know in advance which court and in what composition is legally competent to prosecute him if such a need will arise.

In accordance with Part 1 of Art. 34 of the CPC of the country, the criminal proceedings are transferred to another court, if:

• before the trial it turned out that the criminal proceedings went to court in violation of the rules of jurisdiction;
• after satisfaction of recusals (self-recusals) or in other cases it is impossible to form a court for trial;
• the accused or the victim works or has worked in the court which has jurisdiction over the criminal proceedings;
• the court has been liquidated or the work of the court conducting the court proceedings has been terminated on the grounds specified by law.

Given the paragraph 1 h 3 st. 34 of this Code, the issue of referring criminal proceedings from one court to another within the jurisdiction of various courts of appeal, shall be decided by a panel of judges of the Supreme Court of Cassation at the request of the appellate court or at the request of the parties or victim no later than five days. submission or petition, on which a reasoned decision is made.

Thus, the prosecutor of the Office of the Prosecutor General, approving the indictment in the criminal proceedings, sent it to the Ordzhonikidze District Court of Zaporizhia in violation of the rules of jurisdiction.

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In view of the above and guided by the provisions of Art. Art. 21, 32, 34 of the CPC of Ukraine, "Prikhodko&Partners" Law Firm appealed to the Supreme Court of Ukraine to determine jurisdiction in criminal proceedings under Part 4 of Art. 190 of the Criminal Code of Ukraine by the court to which it is subject in accordance with the provisions of Art. 32 of the Criminal Procedure Code of Ukraine, namely the Pechersk District Court of Kyiv. And asks to transfer for consideration the criminal proceedings provided by h. 4 Art. 190 of the Criminal Code of Ukraine, from the Ordzhonikidze District Court of Zaporizhia to the Pechersk District Court of Kyiv.

We are waiting for the decision of the Supreme Court of Ukraine, which will be announced later.