Lawyer, PhD in Law Daria Skrypnyk discussed certain issues of cancelling arrest in criminal proceedings during a professional development event for lawyers at the National Academy of Advocacy.
The lecturer thoroughly analyzed with the participants certain issues of cancelling arrest in criminal proceedings, namely:
- 1. Legal regulation of cancelling arrest in criminal proceedings.
- 2. Specifics of cancelling arrest imposed within a criminal proceeding.
- 3. Procedure for cancelling arrest by the court.
- 4. Criminal case closed, but arrest not cancelled.
- 5. Practice – driving force.
- 6. Long-awaited ruling of the Supreme Court in the case No. 554/2506/22 dated 04/15/2024.
Regarding the specifics of cancelling arrest in criminal proceedings, the focus is on the following:
1. Legal regulation of cancelling arrest in criminal proceedings:
- A ruling of the investigating judge or court on applying measures to secure a criminal proceeding ceases to be valid after its term expires, cancellation of preventive measure, acquittal verdict, or closure of the criminal case as provided by this Code (part 4 of article 132 of the Criminal Procedure Code of Ukraine).
- The prosecutor simultaneously with the decision to close the criminal case cancels the property arrest if it is not subject to special confiscation (part 3 of article 174 of the Criminal Procedure Code of Ukraine).
- The court simultaneously with the issuance of the court decision that concludes the judicial proceedings decides on cancelling the property arrest. The court cancels the property arrest, in particular, in case of the accused’s acquittal, closure of the criminal case by the court, if the property is not subject to special confiscation, non-imposition of punishment in the form of property confiscation, leaving the civil claim unexamined, or refusal in the civil claim (part 4 of article 174 of the Criminal Procedure Code of Ukraine).
- The property arrest applied during the pre-trial investigation and pre-trial proceedings until the entry into force of this Code continues to be valid until its modification, cancellation, or termination in the manner that was in effect before the entry into force of this Code (point 9 of the Transitional Provisions of the Criminal Procedure Code of Ukraine).
- Resolution of the Plenum of the Supreme Court on the consideration of civil and criminal cases “On judicial practice in cases of lifting arrest from property” dated 06/03/2016 No. 5.
2. Specifics of cancelling arrest imposed within a criminal proceeding
Criminal procedure:
- Arrest imposed under the rules of the Criminal Procedure Code of 2012 on the property of a person who is not a participant in the criminal proceeding. Ruling of the Cassation Administrative Court of the Supreme Court dated 03/27/2019 in case No. 202/1452/18.
- Arrest imposed on the property of a person under the Criminal Procedure Code of 1960, who is convicted, in search, sentence not executed, however, before her conviction, another person became the owner of this property based on a court decision. Ruling of the Cassation Administrative Court of the Supreme Court dated 05/23/2018 in case No. 569/4374/16-c.
- Arrest imposed on the property of a person who is not a participant in the criminal proceeding initiated under the rules of the Criminal Procedure Code of 1960. The criminal proceeding is ongoing, materials during the validity of the Criminal Procedure Code of 2012 have not been submitted to the court (since the Criminal Procedure Code of 1960 did not provide for the procedure for cancelling arrest at the initiative of persons who are not participants in the criminal proceeding). Ruling of the Cassation Administrative Court of the Supreme Court dated 10/17/2018 in case No. 461/233/17-c.
3. Procedure for cancelling arrest by the court
Most often, cancelling arrest occurs within the framework of criminal proceedings. Additionally, arrest may be cancelled within civil proceedings.
- Civil procedure: arrest imposed under the rules of the Criminal Procedure Code of 1960, a verdict issued under the rules of the Criminal Procedure Code of 2012; regarding the cancellation of the arrest, non-participants of the criminal proceeding applied. Ruling of the Cassation Administrative Court of the Supreme Court dated 04/24/2019 in case No. 2-3392/11.
- Criminal procedure: arrest imposed under the rules of the Criminal Procedure Code of 1960, a verdict issued under the rules of the Criminal Procedure Code of 2012; a participant of the criminal proceeding applied for the cancellation of the arrest. Ruling of the Third Judicial Chamber of the Cassation Court of the Supreme Court dated 03/21/2024 in case No. 953/12593/21.
4. Criminal case closed, but arrest not cancelled
- Arrest imposed on the property of a person against whom the investigating judge refused to initiate a criminal case against her and closed the case on the same grounds (no procedural status in the person) (from the text of the ruling, it is clear that the arrest was imposed under the rules of the Criminal Procedure Code of 1960) – a deviation from the position. The arrest should be cancelled under the rules of civil procedure. Ruling of the Cassation Administrative Court of the Supreme Court dated 05/15/2019 in case No. 372/2904/17-c.
- Arrest imposed under the rules of the Criminal Procedure Code of 2012 on the property of a person who is not a participant in the criminal proceeding; the criminal proceeding is closed. The arrest should be cancelled under the rules of criminal procedure (it was noted that there was a departure from the legal position in the ruling of the Cassation Administrative Court of the Supreme Court in case No. 372/2904/17-c, as there was a general conclusion about the impossibility of resolving the issue of cancelling the property arrest after the closure of the criminal proceeding by the decision of the DR authority). Ruling of the Cassation Administrative Court of the Supreme Court dated 06/30/2020 in case No. 727/2878/19.
- Similar legal relations, but the Higher Administrative Court of the Supreme Court decided that the Criminal Procedure Code did not regulate the issue of cancelling the arrest by the investigating judge after the closure of the criminal proceeding based on article 284 of the Criminal Procedure Code. And the imposed arrest ceased its effect due to the direct indication of part 4 of article 132 of the Criminal Procedure Code, which was supplemented by the Criminal Procedure Code according to Law No. 2810-IX dated 12/01/2022. Ruling of the Higher Administrative Court of the Supreme Court dated 04/16/2024 in case No. 991/3622/24.
5. Practice – driving force
According to paragraph 2 of part 1 of article 174 of the Criminal Procedure Code of Ukraine, the arrest is cancelled at the request of the suspect, accused, their defense counsel, or legal representative, another owner or possessor of the property, a legal entity representative involved in the proceedings.
What about heirs?
- Guided by the provisions of part 6 of article 9, articles 537, 539 of the Criminal Procedure Code of Ukraine and cancelling in the framework of criminal procedure if the arrest was imposed under the rules of the Criminal Procedure Code of Ukraine 2012. Ruling of the Malynovsky District Court of Odesa dated 07/14/2023 in case No. 521/16856/23;
- If under the Criminal Procedure Code of 1960 – in the framework of civil procedure. Case No. 522/21245/24.
6. Long-awaited ruling of the Supreme Court in the case No. 554/2506/22 dated 04/15/2024
- Regarding the application of the provision envisaged by paragraph 1 of part 4 of article 132 of the Criminal Procedure Code of Ukraine:
In case of closing the criminal proceeding by the investigator, prosecutor in the manner provided by the Criminal Procedure Code, measures to secure the criminal proceeding, including property arrest, cease to be valid due to the direct indication of part 4 of article 132 of the Criminal Procedure Code of Ukraine.
- Regarding the application of the provisions stipulated by article 309, part 4 of article 399 of the Criminal Procedure Code of Ukraine, in their correlation with the provisions of articles 170-174 of the Criminal Procedure Code of Ukraine:
A ruling of the investigating judge on cancelling the property arrest or refusal to cancel it issued after the closure of the criminal proceeding is not provided by criminal procedural norms, therefore, the appellate court is not entitled to refuse to review the legality of such a decision, referring to the provisions of part 4 of article 399 and article 309 of the Criminal Procedure Code of Ukraine.
The right to appeal such a court decision is subject to protection based on paragraph 17 of part 1 of article 7 and part 1 of article 24 of the Criminal Procedure Code of Ukraine, articles 124, 129 of the Constitution of Ukraine.
- Regarding the application of the provision envisaged by part 9 of article 100 of the Criminal Procedure Code of Ukraine, in correlation with the provisions stipulated by articles 171-174 of the Criminal Procedure Code of Ukraine:
A court ruling issued based on part 9 of article 100 of the Criminal Procedure Code of Ukraine after the closure of the criminal proceeding by the investigator or prosecutor, resolving the issue of the fate of material evidence and documents, may be appealed both in the appellate and cassation procedures.
A ruling of the investigating judge based on part 9 of article 100 of the Criminal Procedure Code of Ukraine on resolving the issue of the fate of material evidence and documents after the closure of the criminal proceeding may be appealed in the appellate procedure based on paragraph 17 of part 1 of article 7 and part 1 of article 24 of the Criminal Procedure Code of Ukraine as not provided by the Criminal Procedure Code of Ukraine.
Source – https://tinyurl.com/mwyet7hv