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08.02.2022

Inadequate conduct by the investigator of the ERDR does not affect the determination of the propriety and admissibility of evidence, if there are documents in the proceedings that confirm the legality of the execution of procedural actions

Circumstances of the case: according to the verdict of the local court, PERSON_1 was found guilty and sentenced for the commission of the crime provided for in Part 2 of Art. 187 of the Criminal Code.

During the consideration of the specified criminal proceedings by the court of first instance, the defense attorney repeatedly submitted a request to request from the holder of the EDPR, the Office of the General Prosecutor of Ukraine, a documentary display of the complete information entered into the electronic information system of the EDDR in the criminal proceedings regarding the prosecution of PERSON_1. The court, refusing to grant such requests, pointed out that improper maintenance of the EDPR cannot refute or confirm the appropriateness and admissibility of evidence.
The appellate court agreed with the above arguments, which left the above verdict of the court of first instance unchanged.
In the cassation complaint, the convicted PERSON_1, in particular, points to such significant violations of the requirements of the criminal procedural law, such as failure to enter information about all conducted investigative actions, announcement of suspicion and change of suspicion, approval of the group of prosecutors in the proceedings and the completion of the pre-trial investigation. In addition, the convict notes in the cassation appeal that certain materials of the criminal proceedings are not certified by the seal of the pre-trial investigation body, which is a significant violation of the requirements of the criminal procedural law.
The position of the CCS: the decision of the courts of previous instances was left unchanged.
Justification of the position of the CCS: the panel of judges of the CCS recognized the arguments of the convicted PERSON_1 as groundless, and his cassation appeal as inadmissible, given the following.
No. 5 of Art. 214 of the Criminal Procedure Code, nor the Regulation on the Unified Register of Pretrial Investigations, the procedure for its formation and maintenance, which was approved by the order of the Prosecutor General dated 04.06.2016 No. 139 (valid for the duration of the pretrial investigation), does not provide for the obligation to enter information about the investigative actions of the during the pre-trial investigation of criminal proceedings.
At the same time, the convicted person does not deny that he and his defense attorney were properly acquainted with all the procedural documents in the proceedings, including the notice of suspicion and change of suspicion, the resolution approving the group of prosecutors in the proceedings and the completion of the pre-trial investigation.
At the same time, the assertion about the need to verify the correctness of entering all information into the EDPR by requesting documents from the holder of the EDDR, the Office of the General Prosecutor, was stated by the defense both in the court of the first instance and in the court of appeals, which reached a well-founded conclusion that in any case it is inappropriate the conduct of the EDPR does not determine the propriety and admissibility of evidence in the proceedings, collected by the pre-trial investigation body, in the presence of procedural documents in the proceedings that confirm the legality of the execution of procedural actions.
You can read more about the text of the resolution dated November 30, 2021 in case No. 644/7203/19 (proceedings No. 51-1444км21) at the link https://reyestr.court.gov.ua/Review/101634648 .
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