WHAT TO DO IF THE PROSECUTOR (INVESTIGATOR) DOES NOT COMPLY WITH THE DECISION OF THE COURT?

The practice of non-implementation of judges' decisions by law enforcement bodies and, in principle, by state bodies in general, has become widespread today. Despite the direct norms of the Constitution of Ukraine.

What should be done in this case?

The experience of our company shows that the most effective measure is the opening of criminal proceedings and the lawyer's supervision of the pre-trial investigation already in open criminal proceedings.

Failure to comply with a court decision is a crime under Art. 382 of the Criminal Code of Ukraine.

According to Part 3 of Article 382 of the Criminal Code of Ukraine, there is an official who occupies a responsible position.

According to Part 2 of the Note to Article 368 of the Criminal Code of Ukraine, the officials who hold a responsible position in Articles 368, 368-5, 369 and 382 of this Code are the persons specified in Item 1 of the Note to Article 364 of this Code, whose positions according to with Article 6 of the Law of Ukraine "On Civil Service" belong to category "B", judges, prosecutors and investigators, as well as others, except those specified in paragraph 3 of the note to this article, heads and deputy heads of state authorities, local self-government bodies, their structural subdivisions and units.

On July 3, 2019, a lawyer's request was sent to the Main Investigative Department of the National Police of Ukraine, in which the lawyer asked to be informed about the time and date of execution of the decision of the investigative judge of the Pechersk District Court of Kyiv on case 757/20742/19-k dated May 21, 2019. This request was ignored by the senior investigator in particularly important cases of the Main Investigative Department of the National Police of Ukraine.

On 07/31/2019, the Pechersk District Court of Kyiv sent a response to the lawyer's request, in which he informed that a certified copy of the decision of the investigative judge of the Pechersk District Court of Kyiv dated 05/21/2019 in case № 757/20742/19-k was sent to the address of the Chief investigative department of the National Police of Ukraine.

The prosecutor of the General Prosecutor's Office, as an official in a responsible position, deliberately did not comply with the decision of the investigating judge of the Pechersk District Court of Kyiv dated 03.22.2021 in case № 757/11767/21-k, did not accept on the basis of clause 10 h. 1 Art. 284 of the Criminal Procedure Code of Ukraine of the resolution on the closure of criminal proceedings № 12020000000000119, by which he committed a criminal offense provided for in Part 3 of Art. 382 of the Criminal Code of Ukraine.

Here is the result

Limitation of the right to property, after the cancellation of the arrest, as well as taking other actions after the closing of the criminal proceedings by the prosecutor and the investigator, is an excess of power or official authority by the employee of the law enforcement agency.

In our specific case, their actions should be qualified according to Part 3 of Art. 365 of the Criminal Code of Ukraine.

The deliberateness of the prosecutor's actions regarding actions that clearly go beyond the limits of his powers is confirmed by the fact that the latter ignored the decision of the investigating judge dated 03.22.2021 in case № 757/11767/21-k, ignored the lawyer's request, in connection with the end of the pre-trial investigation to return the seized property and continues to take other actions that are not related to the closing of criminal proceedings № 12020000000000119.

In the actions of the prosecutor, there is a qualified composition of the criminal offense provided for in Part 3 of Art. 356 of the Criminal Code of Ukraine, because by his actions he caused property damage to a person in the amount of 5,400,000 hryvnias.

During the pre-trial investigation regarding the client of JSC "Prikhodko&Partners", an arrest was made for the alienation of real estate objects (apartments) owned by the client, at the following addresses: Kyiv, pt. Victory, bldg. 11 ("Manhattan City" residential complex) and Odesa, str. Kamanina, building 16-a (apartment house "44 Perlyna"). The total cost of these objects is 200,000 US dollars, which is equivalent to 5,400,000 hryvnias. Thus, in connection with the fact that the prosecutor is obliged to implement the resolution of 22.03.2021 in case № 757/11767/21-k to close criminal proceedings № 12020000000000119, and he did not do so, the illegal arrest of the above-mentioned persons continues real estate objects causing property damage.

Here is the result

The prosecutor and the investigator intentionally, probably with the aim of obtaining an illegal benefit for themselves, repeatedly used their power and official position against the interests of the service, which caused serious consequences - this is abuse of power or official position, which caused serious consequences (Part 2 of Article 364 of the Criminal Code of Ukraine) .

The objective side of this crime consists in the deliberate use by the prosecutor and the investigator as officials who have powerful powers, contrary to the interests of the service, of their powers, namely, they committed inaction regarding non-compliance with the decisions of the investigating judge dated 05/21/2019 in case № 757/20742/19 -k, 13.01.2020 in case № 757/52933/19-k, dated 03.12.2020 in case № 757/38684/20-k, 14.08.2020 in case № 757/24535/20-k, 14.12.2020 in case № 757/53094/20-k, dated March 22, 2021 in case № 757/11767/21-k.

The mentioned facts give reason to believe that the prosecutor, the investigator and their management are personally materially interested in non-implementation of the above-mentioned rulings of the investigating judge.

The above-mentioned circumstances testify to the presence in the actions of the senior group of prosecutors in criminal proceedings № 12020000000000119 and the senior investigator in the State Security Service of the National Police of Ukraine of signs of a criminal offense provided for in Part 2 of Article 364 of the Criminal Code of Ukraine.

Here is the result

The prosecutor and the investigator, with the agreement of their management, created a criminal organization for the purpose of committing serious and especially serious crimes, provided for in Part 3 of Art. 382, Part 2 of Art. 364, Part 3 of Art. 365 of the Criminal Code of Ukraine is the commission of a crime under Art. 255 of the Criminal Code of Ukraine (Creation, management of a criminal community or criminal organization, as well as participation in it).

Systematic commission of the above-mentioned crimes by the prosecutor and investigator during 2019-2021 in criminal proceedings No. 12018160470000733 and № 12020000000000119 testify to the agreement of actions between themselves and their management.

The prosecutor and the investigator committed exactly the qualified composition of the crime provided for in Part 3 of Art. 255 of the Criminal Code of Ukraine, since the latter committed them as officials using their official position.

Here is the result