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10.02.2022

Obtaining evidence by granting permission for an unscheduled inspection by investigators, prosecutors and investigative judges is not provided for in the CPC

The results of such checks, assigned as part of the investigation of criminal proceedings on the basis of the decision of the investigating judge, are inadmissible evidence and in accordance with Part 2 of Art. 86 of the Criminal Procedure Code should not be used when making court decisions within the framework of criminal proceedings.

Circumstances of the case: the head of the gas supply and gasification department of PJSC OSOBA_1 and the deputy chairman of the occupational safety board of PJSC OSOBA_2, as persons who are obliged to comply with safety rules during the performance of work with increased risk, were accused by the pre-trial investigation body of violating safety rules in the management of gas supply and gasification of PJSC, if this violation created a threat of death or other serious consequences, i.e. in the commission of a criminal offense provided for in Part 1 of Article 272 of the Criminal Code.
The body of the pre-trial investigation as the basis of the indictment of PERSON_1 and PERSON_2 laid, in particular, the acts of inspections of the PJSC business entity and its structural divisions, carried out by the State Labor and Employment Administration on the basis of the rulings of the investigating judge of the local court, which granted permission to conduct an unscheduled on-site inspection on compliance with the requirements of the Law of Ukraine "On labor protection", other legislative and regulatory acts on labor protection and industrial safety and compliance with the labor legislation of Ukraine by the business entity — PJSC and its structural production units.
Positions of the courts of the first and appellate instances: according to the verdict of the local court, PERSON_1 and PERSON_2 were found not guilty of the indictment under Part 1 of Art. 272 of the Criminal Code and was acquitted due to the lack of evidence of the criminal offense with which they were accused.
Acquitting PERSON_1 and PERSON_2, the court of first instance recognized as inadmissible evidence the acts of inspections of the business entity PJSC and its structural subdivisions of the State Labor Service. Justifying its conclusions, the court indicated that the rulings of the investigating judge of the local court, which granted permission to conduct an unscheduled on-site inspection, were annulled by the rulings of the appeals court, and the Criminal Procedure Code does not provide for the authority of the investigator or the prosecutor "to appoint audits and inspections in the manner prescribed by law."
The appellate court left unchanged the specified acquittal against PERSON_1 and PERSON_2.
In the cassation complaint, the prosecutor points out the groundlessness of the arguments of the courts of first instance and appellate instance regarding the recognition of inadmissible acts of inspections of business entities of PJSC and its structural subdivisions of State Employment Service. The prosecutor also points out that the rulings of the appeals court regarding the annulment of the rulings of the investigating judge of the local court, which satisfied the request of the investigators of the SU GUNP to grant a permit and conduct an unscheduled on-site inspection, did not concern the orders of the state body — the State Administration of Labor as a subject of authority, but only compliance with the requirements the law of requests of the investigator.
The position of the CCS: the decision of the courts of previous instances was left unchanged.
Justification of the position of the CCC: the panel of judges of the CCC recognized the cassation appeal of the prosecutor as inadmissible, as it did not establish significant violations of the requirements of the criminal procedural law or incorrect application of the law of Ukraine on criminal responsibility, which could be grounds for annulment or change of court decisions.
Referring to the legal position of the Supreme Court, set out in the resolution dated 06.03.2018 in case No. 51-499km17, the court of first instance considered that, in accordance with the provisions of the Criminal Procedure Code, the investigating judge does not have the authority to make a decision on conducting inspections. Thus, after giving the investigator permission to conduct the inspection, the investigating judge made a decision that is not provided for by the Criminal Procedure Code. The rulings of the investigating judge of the local court were canceled by the appeals court rulings, and rulings were issued on the refusal to grant the investigator's request for permission to conduct an unscheduled on-site inspection. That is why the court of first instance found the mentioned evidence inadmissible.
The appellate court agreed with the indicated conclusions of the court of first instance.
The panel of judges of the Supreme Court affirms the validity of the conclusions of the first and appellate courts. Thus, the court of first instance, with which the court of appeal also agreed, explained that from 15.07.2015 the prosecutor and the investigator do not have the authority to "appoint audits and inspections." The specified legislative changes in combination with the provisions of Clause 2 of the Resolution of the CMU dated 13.08.2014 No. 408 "Issue of the introduction of restrictions on inspections by state inspections and other controlling bodies" were the basis for the prosecution's appeal to the investigating judge with requests for permission to conduct inspections, according to as a result of consideration of which a decision was made to grant a permit to conduct an unscheduled on-site inspection. However, in accordance with the provisions of the Criminal Procedure Code, in view of the legal position of the Supreme Court, set forth in the resolution dated 03.06.2018 in case No. 51-499km17, the investigating judge does not have the authority to make decisions regarding inspections.
The appointment of an unscheduled inspection is neither an investigative (search) action, nor a NSRD, nor a measure to ensure criminal proceedings, requests for the conduct of which may be submitted by the investigator to the investigating judge in agreement with the prosecutor
The use of the expression "demand and receipt" in Part 2 of Art. 93 of the Criminal Procedure Code provides for the authority to use as evidence the conclusions of audits and inspection reports (as well as any other documents) that exist independently of the criminal investigation. Therefore, the CPC does not establish the possibility of obtaining evidence by granting permission for an unscheduled inspection by investigating judges, prosecutors, or investigators. The results of such checks, assigned as part of the investigation of criminal proceedings on the basis of the decision of the investigating judge, are inadmissible evidence and in accordance with Part 2 of Art. 86 of the Criminal Procedure Code should not be used when making court decisions within the framework of criminal proceedings.
You can read more about the text of the resolution dated November 16, 2021 in case #234/8805/18 (proceedings #51-2318км21) at https://reyestr.court.gov.ua/Review/101282920 .
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