Pre-trial investigation: current practice of the Supreme Court

It is not allowed to conduct a pre-trial investigation before entering information into the Unified Register of Pre-trial Investigations. All evidence collected before entering information into the EDPR is considered inadmissible. The only exception to this rule is the inspection of the scene (information about the committed criminal offense is entered immediately after the inspection is completed).

This was emphasized by Svitlana Yakovleva, judge of the Criminal Court of Cassation as part of the Supreme Court, during an online meeting with lawyers.

The spokeswoman said that the Criminal Procedure Code of Ukraine does not provide for a mandatory requirement to comply with the rules of accountability when entering information into the EDPR. That is, a person can apply to any investigator, inquirer, prosecutor with a statement about the commission of a criminal offense, and they must enter the relevant information into the EDPR. In addition, Art. 214 of the Criminal Procedure Code of Ukraine does not contain instructions on the possibility not to enter information, if the criminal offense is not investigated by the appropriate investigative body (this is stated in the resolutions of the Supreme Court of Justice of Ukraine in cases No. 332/1189/18, No. 454/2576/17).

If information about a criminal offense is entered into the EDDR by the prosecutor, then within five working days from the date of entry of such information, in compliance with the rules of investigation, he must transfer the materials available to him to the relevant body of pre-trial investigation and instruct the conduct of a pre-trial investigation. Evidence obtained in such criminal proceedings may be deemed improper and inadmissible if it is established that it was collected by the body in violation of the rules of jurisdiction.

Svitlana Yakovleva also outlined the specifics of conducting a pre-trial investigation during martial law and the application of Art. 615 of the Criminal Procedure Code of Ukraine (taking into account the amendments made to it). So, in particular, in Clause 1, Part 1, Art. 615 of the Criminal Code of Ukraine provides for the possibility of starting a pre-trial investigation without entering information into the EDPR by issuing a resolution on the initiation of a pre-trial investigation.

At the same time, in each case of application of the specified norm of the Criminal Code of Ukraine, it should be carefully checked that the inquirer, investigator, prosecutor did not have the technical possibility of accessing the EDPR at the time of the start of the pre-trial investigation.

The judge of the CCS of the Supreme Court drew attention to the fact that during the martial law and under the condition that the investigating judge could not fulfill his powers, the legislator gave the head of the prosecutor's office the right to exercise certain powers of investigative judges. The right to transfer the procedural powers of the investigating judge to the head of the prosecutor's office should be granted only in those territories where, due to hostilities or for other objective reasons (destruction or damage to the court building, etc.), the investigating judge is unable to exercise his powers.

One such power is the extension of a preventive measure during martial law. If during the martial law the court works in the usual mode, the investigating judge exercises his powers, then the continuation of the preventive measure takes place in the general order.

If, in the event that the investigating judge is unable to fulfill his powers, the head of the prosecutor's office decides on the issue of extending the preventive measure, then it should be taken into account that the extension of the preventive measure in the form of detention is carried out on the basis of the law and cannot exceed two months (parts 5 and 6 of Article 615 Communist Party of Ukraine). Prolonging the preventive measure for more than two months on the basis of the law without the decision of the investigating judge or the court can potentially lead to a violation of Art. 5 of the Convention on the Protection of Human Rights and Fundamental Freedoms.

At the same time, such an extension is not subject to appeal, as it is carried out on the basis of the law, and a court decision is not passed on this matter.

Continuation of detention on the basis of the law cannot be appealed in the appellate procedure, since such an issue is not the subject of appellate review.

More details – in the video recording of the online meeting: .

You can familiarize yourself with Svitlana Yakovleva's presentation at the link: .

The event was organized by the Supreme Court together with the Association of Lawyers of Ukraine.

Legal news of Ukraine