On November 21, 2022, the Third Judicial Chamber of the Criminal Court of Cassation of the Supreme Court in case No. 991/492/19 dismissed the cassation appeal of the defense attorney, stating that, when deciding on the admissibility of evidence obtained as a result of procedural actions and procedural decisions that were made , accepted by the prosecutor, who is the procedural manager, in violation of the deadline for the transfer of materials to the body of pre-trial investigation, defined in Part 7 of Art. 214 of the Criminal Procedure Code, the court must take into account the duration of such a violation, the scope and nature of the actions taken and the decisions made.
The higher anti-corruption court found the person guilty of the criminal offense provided for in Part 3 of Art. 369-2 of the Criminal Code.
The Appellate Chamber of the High Anti-Corruption Court partially satisfied the defense attorney's appeal and changed the court's verdict.
The Supreme Court annulled the decision of the Appellate Chamber of the High Anti-Corruption Court and ordered a new trial in the appellate court.
The Appellate Chamber of the High Anti-Corruption Court changed the verdict and excluded from its motivational part the court's reference as evidence: to the emergency search protocol; tangible evidence – identified money in the amount of $200. USA in denominations of 100 dollars. each; mobile phone review protocol; money review protocols. Changed the legal qualification of the defendant's actions from part 3 to part 2 of Art. 369-2 of the Criminal Code. The rest of the sentence remained unchanged.
In the cassation appeal, the defense attorney emphasized that in the criminal proceedings the prosecutor did not comply with the provisions of Part 5 of Art. 36 , Part 7 of Art. 214 , Part 5 of Art. 216 of the Criminal Procedure Code, namely, after entering the information into the Criminal Procedure Code immediately, but no later than the next day after the start of criminal proceedings, he did not transfer the materials available to him to the appropriate body of the pre-trial investigation in compliance with the rules of investigation, instead, at the initial stage of the investigation, he independently initiated, appointed and instructed the conduct of the NSRD , which led to the inadmissibility of the evidence obtained as a result of these investigative actions.
The Judicial Chamber of the Supreme Court came to the conclusion that in situations that are similar to the circumstances of this criminal proceeding, where the prosecutor, having violated the requirements of Part 7 of Art. 214 of the Code of Criminal Procedure, did not transfer, in compliance with the rules of investigation, the materials available to him to the body of pre-trial investigation no later than the next day after entering information about a criminal offense into the Criminal Procedure Code, the assessment of the admissibility of evidence obtained by law enforcement bodies in the period before the transfer to the appropriate body of pre-trial investigation must be carried out in the light of criteria that determine the duration of such a period, the volume and nature of the procedural actions that were carried out during this period, other relevant circumstances of this criminal proceeding, which allow to draw a conclusion about "…the impact of these violations on certain conventional or constitutional human rights, in particular to establish, to what extent procedural deficiencies "destroyed" or narrowed these rights or limited a person's ability to effectively use them.
At the initial stage of the pre-trial investigation, the prosecutor, who is the head of the proceedings, carried out procedural actions and made decisions that belong to the powers of the prosecutor by law: the pre-trial investigation was started ( clause 1, part 2, article 36 of the Criminal Procedure Code), a group of prosecutors was determined ( part 1 Article 37 of the Code of Criminal Procedure), the relevant operational unit is entrusted with the conduct of secret investigative (search) actions ( clause 5, part 2 of Article 36 of the Code of Criminal Procedure), a petition for the conduct of secret investigative (search) actions is submitted to the investigating judge ( clause 10, part 2 Article 36 of the Code of Criminal Procedure), a decision was made to monitor the commission of a crime, which is the exclusive authority of the prosecutor ( Part 7 of Article 271 of the Code of Criminal Procedure).
In this proceeding, the delay in the transfer of pre-trial investigation materials by the prosecutor to the pre-trial investigation body was only a few days , while this delay was really connected with the urgent need to take urgent measures to document the crime that was committed. The scope and nature of the actions taken by the prosecutor during this period and the procedural decisions made do not indicate that in this case the procedural deficiencies are of an arbitrary nature. On the contrary, despite a certain delay in the transfer of pre-trial investigation materials to the pre-trial investigation body, other requirements of the Criminal Procedure Code regarding relevant procedures were complied with, including proper judicial control over the conduct of secret investigative (search) actions.
Thus, the Supreme Court came to the conclusion that in this criminal proceeding procedural violations in terms of non-observance of the deadline for the transfer of materials to the pre-trial investigation body are not such as to lead to the inadmissibility of evidence obtained as a result of procedural actions and decisions of the prosecutor at the initial stage of the pre-trial investigation.
Prepared by Leonid Lazebnyi