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HOW TO CORRECTLY CALCULATE THE DEADLINE FOR FILING AN APPEAL?

Plot. On December 28, 2021, the investigating judge of the Pechersk District Court of Kyiv in case 757/66895/21-k adopted a resolution obliging the authorized prosecutor in CP № 42014000000000537 to take the actions specified in paragraph 1 part 2 of Art. 283, item 10 part 1 of Art. 284, part 4 of Art. 284 of the CPC of Ukraine and within three days from the date of the decision of the investigating judge, to adopt a decision to close the criminal proceedings filed with the ERDR for № 42014000000000537.

In accordance with paragraph 3 of Part 2 of Art. 395 of the CPC of Ukraine, an appeal, unless otherwise provided by this Code, may be filed on the decision of the investigating judge – within five days from the date of its announcement.

In accordance with Part 3 of Art. 395 of the CPC of Ukraine, if the decision of the court or investigating judge was made without summoning the person appealing, or if the verdict was passed without summoning the person appealing, in the manner prescribed by Article 382 of this Code, the term of appeal for such person is calculated from the date of receipt of a copy of the court decision.

The case № 757/66895/21-k was heard by the investigating judge of the Pechersk District Court of Kyiv at the summons of the parties. The prosecutor did not appear in court and filed an application for consideration of the case without his participation (this fact is confirmed by the text of the decision of the Pechersk District Court of Kyiv in case 757/66895/21-k).

On January 13, 2022, the decision of the investigating judge of the Pechersk District Court of Kyiv of December 28, 2021 in case 757/66895/21-k was announced, as evidenced by information from the register of court decisions.

Thus, until January 18, 2022, the prosecutor had the right to file an appeal against the above decision.

However, what the prosecutor does. On January 18, 2022, Viz applied to the court for the issuance of the full text of the court decision, received such a decision on January 27, 2022 and filed an appeal the next day, artificially renewing his term for appeal.

And what does the Supreme Court of Ukraine say about this?

According to the conclusion of the Criminal Court of Cassation in case № 760/27302/20. In its decision of 08.02.2021 the court concluded that Part 3 of Art. 395 of the CPC of Ukraine does not apply to those cases when there was a summons of a person in the case and he filed an application for consideration of the case without his participation. Namely, the court stated:

“From the content of the decision of the Kyiv Court of Appeal it can be seen that PERSON_1 was informed about the time and date of the court hearing, and sent a statement to the court to consider the case without his participation. Consideration of the case was carried out with the summons of a person. In view of this, the appellate court came to the correct conclusion about the omission of PERSON_1 term for appeal and returned the complaint filed by him.”

That is, the prosecutor had the right to file an appeal against the decision of the investigating judge of the Pechersk District Court of Kyiv of December 28, 2021 in case 757/66895/21-k only within five days from the date of its announcement.

A professional criminal lawyer must not only know the law, but also follow the case law closely. Despite the fact that there is no case law in Ukraine, given the large number of gaps in the legislation, only a deep and thorough knowledge of judicial practice will make it possible to predict the outcome and achieve the goal.

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