The territorial service center of the Ministry of Internal Affairs of Ukraine, based on the order of its creation and the focus of its activities, does not belong to a law enforcement body, but the head of the service center, also in view of the appointment procedure, the absence of a military rank and the non-performance of a law enforcement function, in particular, in the form of the right to assemble protocols on administrative offenses, is not an employee of a law enforcement agency.
If the prosecutor applied to the investigating judge of the appeals court outside the territorial jurisdiction of the pre-trial investigation body with a request to conduct the NSRD, and the judge granted such permission, then all the evidence obtained as
Conducting a pre-trial investigation by the investigators of the military prosecutor's office during the transitional period defined by the CPC, in criminal proceedings under the jurisdiction of the National Police, and not the State Bureau of Investigation, is a violation of the rules of investigation, and therefore the evidence collected in such criminal proceedings is inadmissible.
Positions of the courts of the first and appellate instances: according to the verdict of the local court, the head of the TSC of the Ministry of Internal Affairs, PERSON_1 was found not guilty of the charge brought under Part 1 of Art. 366, Part 3 of Art. 368 of the Criminal Code and was acquitted due to the lack of evidence of the criminal offenses with which he was accused.
The appellate court left the said verdict unchanged.
In the cassation complaint, the prosecutor refers to the fact that the appellate court unreasonably agreed with the reasons stated in the decision of the court of first instance, in particular, regarding violations of the rules of jurisdiction, the inadmissibility of factual data of the NSRD.
The position of the CCS: the decision of the appellate court was left unchanged.
Justification of the position of the CCS: the panel of judges of the CCS agrees with the conclusions of the appellate court regarding violations of the rules of jurisdiction during the pre-trial investigation in this criminal proceeding.
As can be seen from the materials of the criminal proceedings, the pre-trial investigation regarding PERSON_1 as the director of the TSC was started on the basis of the report of the head of the Department of Economic Protection in the Volyn Region of the Department of Economic Protection of the NP dated 05/23/2016 on the grounds of a criminal offense provided for in Part 3 of Art. 368 of the Criminal Code, in connection with which on the same day the military prosecutor of the Lutsk garrison gave the investigator of the military prosecutor's office of the Lutsk garrison a mandate to conduct a pre-trial investigation. At the same time, according to the specified fact, the military prosecutor entered information into the EDPR. In the future, the investigation department of the Military Prosecutor's Office of the Western Region of Ukraine was entrusted with the pre-trial investigation.
According to parts 1, 5 of Art. 216 of the Criminal Procedure Code, this criminal offense is under the jurisdiction of the investigative bodies of the National People's Republic. Therefore, after starting criminal proceedings, the prosecutor on the basis of Part 7 of Art. 214 of the CPC was obliged to immediately, but no later than the next day, in compliance with the rules of investigation, transfer the materials available to it to the investigative bodies of the NP and order the conduct of a pre-trial investigation. However, contrary to the provisions of the procedural law, the prosecutor's office conducted a pre-trial investigation in violation of Article 216 of the Criminal Procedure Code, during which a number of investigative actions were carried out aimed at obtaining evidence, including NSRD, the results of which were used as the basis of the indictment.
In addition, the indicated violations of the procedural law were not eliminated as a result of the issuance by the Deputy Prosecutor General of Ukraine of a resolution dated 27.03.2016 on the determination of liability and the assignment of a pre-trial investigation to the investigator of the military prosecutor's office of the Lutsk Garrison of the Western Region of Ukraine.
According to the OP's opinion, set forth in resolution No. 640/5023/19 (proceedings No. 51-2917kmo20), a mandatory prerequisite for the implementation by the Prosecutor General, the head of the regional prosecutor's office, their first deputies and deputies of the powers provided for in Part 5 of Art. 36 of the Criminal Procedure Code, there is an assessment of the pre-trial investigation by the pre-trial investigation body established by Art. 216 of the Code of Criminal Procedure, as ineffective and the reflection of such an assessment in the resolution with the relevant motivation.
However, it is not clear from the resolution of the Deputy Prosecutor General of Ukraine that the ineffectiveness of the pre-trial investigation by the National Prosecutor's Office has been established. In addition, the mentioned resolution is dated 27.03.2017, and the indictment against PERSON_1 was approved on 31.03.2017, that is, this resolution was issued almost after the completion of the pre-trial investigation.
The prosecutor's reference to the fact that PERSON_1 is an employee of a law enforcement agency, and therefore this proceeding belongs to the jurisdiction of the prosecutor's office, taking into account the Transitional Provisions of the Criminal Procedure Code, the panel of judges considers to be far-fetched in connection with this.
According to the Decision of the KSU dated April 18, 2012 No. 10-рп/2012, the concept of "law enforcement officer" must be defined in accordance with the understanding of the signs of this subject of the crime only outside the city of its application in the Criminal Code. Thus, defining the concept of "law enforcement agency employee" should be based not only on whether or not a specific agency performs a law enforcement function, but also on a comprehensive analysis of the Code of Criminal Procedure, decisions of the KSU, and provisions of normative legal acts that regulate the legal status of a specific agency. where there is an instruction, in particular, about the implementation of the law enforcement function by this body.
PERSON_1 held the position of head of the TSC from 08/05/2016 and was hired on a competitive basis in accordance with the Law of Ukraine "On Civil Service". In connection with the employment, no military rank was assigned, and the right to pension as a person of the internal affairs bodies was not acquired. Official duties do not provide for the right to draw up protocols on administrative offenses, that is, he did not perform law enforcement functions in his activity.
According to the Regulation on the TSC, it is structurally part of the Regional Service Center. The main body in the system of bodies providing service services of the Ministry of Internal Affairs is the Main Service Center, which is subordinate to this ministry.
Regional service centers were established by the Resolution of the CMU of October 28, 2015 No. 889 as legal entities under public law, which are governed by the Law of Ukraine "On Administrative Services."
Therefore, taking into account the above, the panel of judges of the CCS believes that, based on the order of its creation and the focus of its activity, the TSC does not belong to a law enforcement agency, and PERSON_1, accordingly, is not an employee of a law enforcement agency.
According to the materials of the criminal proceedings, the permission to conduct NSRD regarding PERSON_1 was granted on the basis of the decision of the investigating judge of the Court of Appeal of Ternopil region dated 04.08.2016. The prosecutor motivated the grounds for the request to conduct the NSRD outside the territorial jurisdiction of the pre-trial investigation body by the provisions of Part 2 of Art. 247 of the Criminal Procedure Code, in particular, the conduct of these investigative actions in the premises of a law enforcement agency and the purpose of preventing the disclosure of information about their conduct.
However, taking into account that the TSC does not belong to a law enforcement agency, and PERSON_1 is not its employee, the panel of judges agrees with the reasons of the appellate court, which confirmed the conclusion of the court of first instance regarding the inadmissibility of factual data obtained as a result of the NSRD as evidence, and the investigating judge of the Court of Appeal of Ternopil region had no procedural rights to grant permission to interfere in PERSON_1's private life.
In addition, the panel of judges draws attention to the fact that the decision of the judge of the appellate court was issued on 04.08.2016, while according to the order of the Regional Service Center dated 05.08.2016 and the work book of PERSON_1, the latter was accepted as the head of the TSC on 05.08.2016, which makes it impossible to issue the specified resolutions of 04.08.2016 regarding interference in the private life of PERSON_1 as the head of the TSC.
In addition, as can be seen from the extract from the ERDR, information about PERSON_1's commission of a criminal offense provided for in Part 3 of Art. 368 of the Code of Civil Procedure, entered on 05/23/2016, stating that this person received an unlawful benefit on 09/14/2016.
Thus, the Supreme Court did not establish significant violations of the requirements of the criminal procedural law, which would be unconditional grounds for annulment of the contested decision, as stated in the cassation appeal of the prosecutor.
You can read more about the text of the resolution of the Supreme Court of October 25, 2021 in case No. 159/1383/17 (proceedings No. 51-2227км20) at the link https://reyestr.court.gov.ua/Review/100579483 .