The first most significant judicial decision of the Supreme Court on ensuring the right to appeal was the resolution of the Grand Chamber of the Supreme Court regarding the possibility of appealing the decisions of investigative judges, which are not on the list contained in Art. 309 of the CPC of Ukraine. We are talking about case No. 243/6674/17-k (proceedings No. 13-16cvo18), in which the Supreme Court concluded that the rulings of investigative judges on the appointment of unscheduled inspections can be reviewed in the appeal procedure.
This was stated by the judge of the Criminal Court of Cassation as part of the Supreme Court Serhii Fomin during the webinar.
According to him, the joint chamber of the CCC of the Supreme Court also made several conclusions regarding the possibility of appealing the decisions of investigative judges. Thus, in the decision dated February 19, 2019 in case No. 569/17036/18 (proceedings No. 51-598kmo19) OP KKS Supreme Court indicated that in terms of the provisions of Art. 309 of the Criminal Procedure Code of Ukraine, the resolution of the investigating judge on the full or partial cancellation of the seizure of property, issued according to the rules of Art. 174 of the Criminal Code of Ukraine, is not subject to appeal.
In the resolution of May 31, 2021, in case No. 646/3986/19 (proceedings No. 51-3335kmo20), the OP of the Supreme Court concluded that the decision of the investigating judge to return the petition for seizure of property, adopted by the investigating judge within the framework of the mechanism provided for in 6 Art. 9 of the Criminal Procedure Code of Ukraine, due to failure to comply with the requirements of Part 2 of Art. 132 of the Criminal Procedure Code of Ukraine, is not subject to appeal in the appeal procedure during the pre-trial investigation.
"In this resolution, the motivational part is also important, as the justifications presented in it gave impetus to the adoption of many other judicial decisions of the Supreme Court. Thus, the joint chamber identified two groups of decisions of the investigating judge, the possibility of adoption of which is not directly provided for by the Criminal Procedure Code of Ukraine within the relevant procedures regulated by this Code. The first – adopted outside the limits of the procedure provided for by the Code of Criminal Procedure of Ukraine (on issues, the procedure for the resolution of which by the investigating judge is not provided for by this Code), the second – adopted within the limits of the procedure provided for by the Code of Criminal Procedure of Ukraine with the application of the provisions of Part 6 of Art. 9 of the Criminal Procedure Code of Ukraine and the general principles of criminal proceedings, defined in Part 1 of Art. 7 of this Code," noted Serhii Fomin.
In addition, the speaker emphasized, the OP of the CCS of the Supreme Court noted that the issue of appellate appeal of the second group of decisions requires a differentiated approach, and singled out three subgroups. These are the rulings of the investigating judge, which resolve the following issues:
– regarding the restriction of a person's constitutional rights (applying a preventive measure in the form of detention; applying a preventive measure in the form of house arrest; applying a preventive measure in the form of bail; removal from office, etc.);
– that are of essential importance for the implementation of an effective pre-trial investigation (for example, refusal to grant permission for detention, in the implementation of a special pre-trial investigation, etc.);
– regarding the fate of pretrial investigation or criminal proceedings in general (closing of criminal proceedings on the basis of Part 9 of Article 284 of the Criminal Procedure Code of Ukraine, etc.).
OP of the CCS of the Supreme Court determined that only the rulings of the investigating judge are subject to review in the appellate instance, which are related to the possibility of significant restriction of the rights, freedoms and interests of a person or are of decisive importance for the movement of pre-trial investigation or criminal proceedings in general.
About other resolutions of the Central Committee of the Supreme Court regarding the possibility of appealing the decisions of investigative judges; subjects who have the right to file an appeal; terms of appeal; leaving the appeal without movement, returning it or refusing to open the proceedings; rejection of the appeal, changes and additions to the appeal during the appeal proceedings – in the presentation of Serhiy Fomin.