Basysta I. On the possibility of appeals in the appeal procedure of decisions of investigating judges according to the results of the consideration of the complaint on the inaction of the investigator and prosecutor, which lies in the failure to enter information about criminal offense into unified register of pre-trial investigations, which were determined before June 17, 2020

DOI: 10.33098/2078-6670.2021.11.23.159-170.

Aim. The publication is an attempt of the author to present the scientific community with the existing approaches and objective problems of appealing the decisions of investigating judges on the results of the complaint on the inaction of the investigator and prosecutor, which lies in the failure to enter information about a criminal offense to Unified Register of Pre-trial Investigations, which were determined before June 17, 2020. Methodology. Analysis and synthesis of scientific achievements of a number of researchers and available precedents, study of the state of regulatory support, formation of author’s conclusions. Structured system method, analysis and synthesis, functional, and other methods have been used in carrying out this scientific research. Results. In the course of writing this article, arguments have been put forward to support the conclusions below.

1. Since one of the constitutional principles of judicial proceedings, in accordance with the requirements of article 129, paragraph 8 of the Constitution of Ukraine, is to ensure the right to an appellate review of the case, and the right to appeal against procedural decisions, acts or omissions as the basis of criminal proceedings guarantees everyone the right to appeal against procedural decisions, acts or omissions of a court, investigating judge, prosecutor or investigator in a manner regulated by the Code of Criminal Procedure of Ukraine (article 24, paragraph 1 of the CCP of Ukraine), all criminal proceedings participants authorized by the Code of Criminal Procedure are entitled to exercise their constitutional and procedural right to appeal against decisions, acts or omissions of authorized entities, among other things through appeal procedure if there are grounds for doing so.

2. However, the procedure for appealing procedural decisions, acts or omissions of individual entities should be divided into two conventional blocks, namely, those procedural decisions, acts or omissions that take place during the preliminary investigation and those, which are common in the judicial stages. The appeals against decisions, acts or omissions during pre-trial investigations are regulated by chapter 26 of the CCP of Ukraine, which unites three different appeal procedures with their own procedural features, solutions and different constituents within its structure. In this chapter, among other things, the legislature also sets limits on appeals against certain procedural decisions, some of which are express prohibitions. The Constitutional Court of Ukraine has already declared some of these prohibitions unconstitutional. This unconstitutional bun on appeal decisions in pre-trial investigations cease to have effect, in accordance with article 152, paragraph 2 of the Constitution of Ukraine, from the date of the adoption of the relevant decision by the Constitutional Court of Ukraine, unless otherwise indicated in the decision itself.

3. It is logical, that on common grounds from the day when the Constitutional Court of Ukraine adopted its decision 4-r (II) /2020, that is, from June 17, 2020, on the following issue: «… prohibition of appeal against the decision of the investigating judge following consideration of a complaint of inaction on the part of the investigator, the prosecutor, which consists in failing to report a criminal offence to the Unified Register of Pre-trial Investigations after receiving the complaint, criminal offence reports», criminal proceedings participants authorized by the Code of Criminal Procedure have the right to appeal the decisions of the investigating judge on the basis of the outcome of the examination of the complaint of inaction by the investigator, prosecutor, which consists of failing to report a criminal offence to the Unified Register of Pre-trial Investigations upon receipt of the complaint, criminal offence reports.

4. Court of Appeal while adopting its procedural decision on the basis of an appeal of a  criminal proceedings participant authorized by the CCP of Ukraine regarding his disagreement with the investigating judge’s decision on the results of resolving the complaint, including the inaction of the investigator or prosecutor,  which consists of failing to report a criminal offence to the Unified Register of Pre-trial Investigations upon receipt of a complaint, a criminal offence report, must be based on the current regulations on criminal procedure and must justify its decision in accordance with the provisions of the CCP, applicable at the time of the adoption of the decision (article 5, paragraph 1, of the CCP of Ukraine).

Scientific novelty. There are some differences in the legal positions of the various judicial chambers of the Criminal Cassation Court of the Supreme Court on the application of the provisions of article 307, paragraph 3 of the CCP of Ukraine when reviewing through the cassation procedure decisions of the appellate court refusing to open proceedings through the appeal procedure against decisions of the investigating judges made regarding a complaint about the inaction of the investigator, prosecutor, which lies in the failure to report a criminal offence in Unified Register of Pre-trial Investigations after the receipt of  the complaint, the reported criminal offence. Today, there is a decision of the joint chamber of the Cassation Criminal Court of the Supreme Court in case 133/3337/19, which has also been controversial among legal practitioners, thus I will try to share my own thoughts on this issue.

Practical significance. The results of the study can be used in law enforcement activities during investigation of criminal offenses.

Key words: failure to enter information into the Unified Register of Pre-trial Investigations, appeal, decision of the investigating judge, appealing through the appeal procedure, unconstitutional ban on appeal.

References

1. Criminal Procedure Code of Ukraine of April 13, 2012. in the edition of 14.01.2021. URL: http://zakon2.rada.gov.ua/laws/show/4651-17/page8 (in Ukrainian)

2. Resolution of the Joint Chamber of the Criminal Court of Cassation of the Supreme Court of 15 February 2021 in case № 133/3337/19, proceedings № 51-453 kmo 20. Retrived from: http://reyestr.court.gov.ua. (in Ukrainian)

3. The Constitution of Ukraine, document 254k / 96-VR, version of 01.01.2020. Retrived from: https://zakon.rada.gov.ua/laws/show/254к/96-вр#Text (in Ukrainian)

4. Basysta, I.V. (2020). Chy pidliahaiut oskarzhenniu v apeliatsiinomu poriadku ukhvaly slidchykh suddiv pro vstanovlennia strokiv zakinchennia dosudovoho rozsliduvannia: teoriia ta praktyka [Are judgments of investigating judges on setting deadlines for pre-trial investigations subject to appeals: theory and practice]. Scientific notes of the National University “Kyiv-Mohyla Academy”. Legal sciences”. Issue 5. pp. 10-18. Retrived from: http://nrplaw.ukma.edu.ua/article/view/208064 (in Ukrainian)

5. Basysta, I.V. (2020). Chy oskarzhuiutsia v apeliatsiinomu poriadku ukhvaly slidchykh suddiv pro roziasnennia abo vidmovu v roziasnenni sudovoho rishennia? [Are judgments of investigating judges to clarify or refuse to explain a court decision appealed?] Proceedings of the VIII International Scientific and Practical Conference «Malynovski chytannya» (Ostrog, May 22, 2020). PP. 98-101. Retrived from: https://eprints.oa.edu.ua/8351/1/mater_konfer_Malynovsky.pdf (in Ukrainian)

6. Basysta, I.V. (2020). Chy mozhlyvo zalyshyty bez rukhu apeliatsiinu skarhu na ukhvalu slidchoho suddi: teoriia ta praktyka [Is it possible to leave without appeal an appeal against the decision of the investigating judge: theory and practice]. Conceptual problems of development of modern humanities and applied science: materials of the IV All-Ukrainian scientific-practical symposium (Ivano-Frankivsk, May 15, 2020). Editorial and Publishing Department of King Danilo University. P. 298-303. Retrived from: https://ukd.edu.ua/sites/default/files/2020-05/ (in Ukrainian)

7. Decision of the Constitutional Court № 4-r (II) / 2020 of 17.06.2020 (in the case of Vyacheslav Yuriyovych Pleskach’s constitutional complaint regarding the constitutionality of certain provisions of part three of Article 307, part three of Article 309 of the Criminal Procedure Code) Of Ukraine, case № 3-180 / 2018 (1644/18) URL: https://zakon.rada.gov.ua/laws/show/4651-17#Text (in Ukrainian)

8. Drozdov, O.M. (2020). Action of the criminal procedural law in time / Great Ukrainian legal encyclopedia: in 20 volumes. Kharkiv: Law, 2020. / Criminal process, judicial system, prosecutor’s office and advocacy / editor. V.T. Nor (chairman) and others. PP.176-180. (in Ukrainian)