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PROCESSUAL FEATURES OF CRIMINAL PROCEEDINGS OF THE SUCCESSFUL JUDGE

Article 309 of the CPC of Ukraine contains a list of decisions of the investigating judge that may be appealed during the pre-trial investigation. In addition, the appellate proceedings may also be appealed against the decisions of the investigating judge, issued in accordance with Part 2 of Art. 117, part 7 of Art. 583, part 9 of Art. 584, part 6 of Art. 591 of the Criminal Procedure Code of Ukraine.

Systematic interpretation of the relevant provisions of ch. 31 of the CPC of Ukraine allows us to conclude that the legislator has established certain features of the appellate review of the decisions of the investigating judge, due primarily to the nature of this type of court decision, the need for immediate verification of its legality and validity.

The peculiarities of the verification of such decisions should include:

a) simplified procedure for filing an appeal directly to the appellate court (Part 1 of Article 395 of the CPC of Ukraine);

b) shortened term of appeal against the decision of the investigating judge – within 5 days from the date of its announcement, and for a person in custody – from the moment of delivery of a copy of the court decision; for a person without whose summons the decision of the investigator is issued and who appeals against it – from the date of receipt of a copy of the court decision (parts 2 and 3 of Article 395 of the CPC of Ukraine); c) shortened term of consideration of the appeal – not later than 3 days after its receipt by the court of appeal (Part 2 of Article 422 of the CPC of Ukraine).

Decisions of the investigating judge referred to in Art. 309 of the CPC, may appeal:

  • the suspect, his legal representative or defense counsel;
  • a minor, his legal representative or defense counsel to appeal the decisions of the investigating judge provided for in paragraphs. 6.7 hours 1 st. 309 of the CPC;
  • a person in possession of things and documents to appeal the decisions of the investigating judge, provided for in paragraph 10 of Part 1 of Article. 309 of the CPC, n defender or representative;
  • civil plaintiff in order to secure a civil lawsuit to appeal the decisions of the investigating judge, provided for in paragraph 9 of Part 1 of Article. 309 of the CPC, his representative or legal representative of a civil plaintiff who is a minor;
  • other owners or owners of property to appeal the decisions of the investigating judge, provided for in paragraph 9 of Part 1 of Article. 309 of the CPC, their representatives;
  • prosecutor;
  • other persons in cases provided by the CPC.

From the content of Part 1 of Art. 492 of the CPC, it is seen that after receiving an appeal against the decision of the investigating judge in the case, a judge-rapporteur is appointed. He shall immediately request the relevant materials from the court of first instance and shall notify the person who filed them, the prosecutor and other interested persons of the time, date and place of the appellate review no later than one day. In addition, the judge carries out the necessary preparatory actions in accordance with the requirements of Art. 401 of the CCP.

During the term of the appeal, the materials of the criminal proceedings may not be demanded from the court by anyone (see Part 4 of Article 395 of the CPC).

Based on the content of Part C of Art. 407 of the CPC of Ukraine, as a result of the appellate review of complaints against the decisions of the investigating judge, the appellate court has the right to:

a) leave the decision of the investigating judge unchanged, and the appeal – without satisfaction;

b) cancel the decision of the investigating judge and issue a new decision.

That is, there may be a procedural situation when, canceling, for example, a decision on the application of a measure of restraint in the form of house arrest, the appellate court will rule on the application of another measure of restraint, including detention. However, according to Part 4 of Art. 176 of the CPC of Ukraine precautionary measures during the pre-trial investigation are applied by the investigating judge, who in accordance with paragraph 18 of Part 1 of Article. From the CPC of Ukraine there is a judge of the court of first instance, whose powers include the exercise in the manner prescribed by the CPC of Ukraine, judicial control over the rights, freedoms and interests of persons in criminal proceedings, and in the case provided for in Art. 247 of the CPC of Ukraine, – the chairman or by its definition another judge of the Court of Appeal of the Autonomous Republic of Crimea, the Court of Appeal of the region, the cities of Kyiv and Sevastopol.

It is also worth paying attention to the seemingly imperative norm enshrined in Part 4 of Art. 424 of the CPC of Ukraine, which establishes that the decision of the appellate court, issued as a result of the review of the decision of the investigating judge, is not subject to appeal. At the same time, in accordance with Part 7 of Art. 591 of the CPC of Ukraine, the decision of the appellate court, made as a result of reviewing the decision of the investigating judge in cases of appeal against the decision to extradite a person (extradition), may be appealed by the prosecutor in cassation. In view of the above, it is necessary to be guided not only by general norms, but also by special ones, which regulate the procedure and grounds for review of individual court decisions made in criminal proceedings.

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