The Supreme Court, by the panel of judges of the Third Judicial Chamber of the Cassation Criminal Court, considered in an open court session the cassation appeal of prosecutor Kharchenko Ivan Viktorovych against the decision of the Dnipro Court of Appeals dated August 17, 2021 in criminal proceedings entered in the Unified Register of Pretrial Investigations (hereinafter referred to as the Unified Register of Pretrial Investigations) under No. 62020000000000273 of March 12, 2020, according to the indictment PERSON_1, INFORMATION_1, a native of the village of Olenichi of Ovrutsky district of Zhytomyr region, who according to the materials of the criminal proceedings is registered and lives at the address: ADDRESS_1,
in the commission of a criminal offense provided for in Part 3 of Art. 369 of the Criminal Code of Ukraine (hereinafter – Criminal Code of Ukraine).
Content of the decisions of the courts of the first and appellate instances
According to the decision of the Central City District Court of the city of Kryvyi Rih, Dnipropetrovsk region, dated February 12, 2021, criminal proceedings No. 620200000000000273 on the charge of PERSON_1 in the commission of a criminal offense provided for in part 3 of Article 369 of the Criminal Code of Ukraine, closed on the basis of clause 10, part 1 of Article 284 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the Criminal Procedure Code of Ukraine).
The Dnipro Court of Appeal, by its decision dated August 17, 2021, dismissed the appeal of prosecutor S. V. Samoilenko, and left the decision of the court of first instance unchanged.
Claims and generalized arguments set forth in the cassation complaint and objections to it
In the cassation appeal, prosecutor I. V. Kharchenko, referring to significant violations of the requirements of the criminal procedural law, asks to cancel the decision of the appeals court and appoint a new trial in the court of appeals. The essence of the prosecutor's arguments actually boils down to the fact that the courts of the first and appellate instances incorrectly applied the provisions of Clause 10, Part 1 of Article 284 of the Criminal Procedure Code of Ukraine and incorrectly interpreted the provisions of Part 5 of Art. 219 of the CCP of Ukraine. The prosecutor believes that the conclusions of the courts that the period of the pre-trial investigation should take into account the time when the defense was not provided with the materials of the pre-trial investigation in accordance with Art. 290 of the Criminal Procedure Code of Ukraine, is incorrect. Emphasizes that from the moment of sending the notification to the defense about the end of the pre-trial investigation and the opportunity to get acquainted with its materials, the term of the pre-trial investigation is stopped. On the other hand, according to the prosecutor, the conclusions of the courts that since from July 2 to 13, 2020, the prosecution did not provide the defense with the opportunity and proper conditions to start familiarization with the materials of the pre-trial investigation without hindrance, this period is not a period of familiarization with the materials of the proceedings and cannot to be excluded from the general term of the pre-trial investigation contradicts the provisions of Part 5 of Art. 219 of the CPC of Ukraine.
In the objections to the cassation appeal, PERSON_1 notes that on July 2, 2020, the prosecution, having made a decision to complete the pre-trial investigation and open the proceedings, informed the defense of the opportunity to review them only on July 13, 2020. Despite the persistent demands of the defense, in the period from July 2 to July 13, 2020, the prosecution was not provided with the materials of the pre-trial investigation, instead, the investigators were given actual access to them only on July 13, 2020.
Positions of participants in court proceedings
Prosecutor I. V. Kharchenko supported the cassation appeal filed at the court hearing and asked for their satisfaction.
PERSON_2 and his lawyer Tymchyshyn L. M. at the court hearing asked to leave the contested court decision unchanged, and the prosecutor's cassation appeal to be dismissed.
Motives of the Court
After listening to the judge's report, discussing the arguments presented in the cassation complaint, checking the materials of the criminal proceedings, the panel of judges came to the conclusion that there are grounds for transferring the materials of the criminal proceedings for consideration by the combined chamber of the Cassation Criminal Court of the Supreme Court.
In accordance with Part 1 of Art. 36 of the Law of Ukraine dated June 2, 2016 No. 1402-VIII "On the Judicial System and the Status of Judges", the Supreme Court ensures the stability and unity of judicial practice in the order and manner determined by the procedural law.
The implementation of this task takes place, in particular, through the administration of justice, during which the Supreme Court in its decisions expresses a legal position regarding law enforcement, thereby orienting judicial practice to the equal application of legal norms.
According to Part 6 of Art. 13 of the above-mentioned Law, conclusions regarding the application of legal norms set forth in Supreme Court decisions are taken into account by other courts when applying such legal norms.
Part 2 of Art. 434-1 of the Criminal Procedure Code of Ukraine provides that a court considering a criminal proceeding in the cassation procedure as part of a panel of judges or a chamber shall refer such criminal proceedings to a joint chamber if this panel or chamber deems it necessary to deviate from the conclusion regarding the application of the rule of law in similar legal relations, set forth in a previously adopted decision of the Supreme Court as part of a panel of judges from another chamber or as part of another chamber or another joint chamber.
As can be seen from the materials of the criminal proceedings and established by the courts, on April 3, 2020, in the criminal proceedings filed on March 12, 2020 with the EDPR under No. 62020000000000273, PERSON_1 was notified of the suspicion of committing a criminal offense, provided for in Part 3 of Art. 369 of the Criminal Code of Ukraine. Later, by the resolution of the Deputy Prosecutor General A.O. Lyubovych dated May 20, 2020, the term of the pre-trial investigation of this criminal proceeding was extended to three months, that is, until July 3, 2020.
In the preparatory court session, the court of first instance made a decision to close the criminal proceedings on the accusation of PERSON_1 in the commission of the criminal proceedings provided for in Part 3 of Article 369 of the Criminal Code of Ukraine, on the basis of Clause 10 Part 1 of Article 284 of the CCP of Ukraine. Such a decision of the court is based in particular on the fact that on July 3, 2020, the investigator sent a notice to the defense about the completion of the pre-trial investigation and providing access to the materials on July 13, 2020. The opening of the materials of the pre-trial investigation by the prosecution and providing access to them to the defense took place precisely on July 13, 2020, that is, in the period from July 2 to 13, 2020, the investigator did not provide the defense with opportunities and proper conditions for unhindered familiarization with all the materials of the pre-trial investigation. Therefore, the court concluded that this period is not a period of familiarization with the materials of the pre-trial investigation.
The appealed decision of the court of appeal left the decision of the court of first instance unchanged, and the prosecutor's appeal was dismissed.
Agreeing with the local court's decision and rejecting the prosecutor's appeal, the appellate court motivated it, in particular, by the fact that on July 3, 2020, the investigator sent PERSON_1 and his defense attorneys a notice about the possibility of obtaining full access to the materials of the pre-trial investigation on July 13, 2020, i.e. , according to the court, the prosecution party extended the terms of the pre-trial investigation in an extra-procedural way. In the period from July 2 to July 13, 2020, the investigator did not provide the defense with the opportunities and proper conditions for unimpeded access to all the materials of the pre-trial investigation, since the actual provision of this party with access to the materials of the pre-trial investigation and the opportunity to familiarize themselves with them took place only on July 13, 2020. In this regard, according to the appellate court, the period from July 2 to July 13, 2020 is not the period for familiarization with the proceedings and cannot be excluded from the general period of the pre-trial investigation, therefore, the opening of the pre-trial investigation materials in accordance with Art. 290 of the Criminal Procedure Code of Ukraine and sending the indictment to the court outside the pre-trial investigation period.
As established from the materials of the proceedings, on March 12, 2020, information was entered into the EYDR under No. 62020000000000273 regarding the fact of the proposal to provide an illegal benefit to an official who occupies a responsible position, with the legal qualification of a criminal offense under Part 3 of Art. 369 of the Criminal Code of Ukraine (vol. 1, a. k. p. 1).
On April 3, 2020, PERSON_1 was notified of the suspicion of committing a criminal offense provided for in Part 3 of Article 369 of the Criminal Code of Ukraine (vol. 7, para. 58-63).
Subsequently, by the resolution of the Deputy Prosecutor General Lyubovych A. O. dated May 20, 2020, the term of the pre-trial investigation of this criminal proceeding was extended to three months, that is, until July 3, 2020 (vol. 1, a. k. items 36-38).
On July 2, 2020, prosecutor I. V. Kharchenko instructed investigator Ya. S. Tibezh to notify the defense of the completion of the pre-trial investigation and to provide it with access to the materials of the pre-trial investigation (vol. 1, a. k. items 68, 69).
Later, on July 3, 2020, investigator Tibezh J. S. sent the defense a notice of the completion of the pre-trial investigation and the possibility of obtaining access to the materials of the pre-trial investigation on July 13, 2020 (vol. 1, a. k. p. 94, 95).
The protocol on providing access to the materials of the pre-trial investigation confirms that only on July 13, 2020, the defense party began familiarization with the materials of the pre-trial investigation (vol. 9, a. k. p. 186-235).
The panel of judges believes that the conclusion of the appellate court, which left the contested decision of the court of first instance unchanged, is correct, because despite the fact that the prosecution notified the defense of the completion of the pre-trial investigation and the provision of access to the proceedings within the period of the pre-trial investigation, however, the fulfillment of the requirements of Art. 290 of the Criminal Procedure Code of Ukraine, by the decision of the investigator, began outside the pre-trial investigation period – July 13, 2020, that is, from the moment the defense was actually provided with the opportunity to exercise its right to review the materials of the pre-trial investigation.
In the opinion of the Court, the period of familiarization with the materials of the pre-trial investigation begins from the moment the prosecution actually gives the defense access to the materials of the pre-trial investigation and provides a real opportunity to familiarize themselves with them.
On the other hand, in the practice of the Supreme Court, there is a different legal position regarding the temporal counting of pre-trial investigation periods.
In particular, according to the resolution of the panel of judges of the First Judicial Chamber of the Criminal Court of Cassation dated September 28, 2021 (case No. 758/12538/20, proceedings No. 51-3811 km 21), the Court considered the cassation appeal of the prosecutor who participated in the consideration of the criminal proceedings in the court of the first instance, on the decision of the Podilsky District Court of Kyiv dated February 03, 2021 and the decision of the Kyiv Court of Appeals dated May 24, 2021 in the criminal proceedings against PERSON_3, which was closed on the basis of Clause 10, Part 1, Article 284 of the CCP of Ukraine.
In this proceeding, in the cassation complaint, the prosecutor, referring to a significant violation of the requirements of the criminal procedural law, asked to cancel the decisions of the courts of the first and appellate instances and to appoint a new trial in the court of the first instance. He believed that the period of the pre-trial investigation was suspended from November 3 to 9, 2020 in connection with the provision of requirements for the defense to familiarize itself with the materials of the pre-trial investigation. Therefore, the indictment was sent to the local court within the period of the pre-trial investigation, immediately after the defense party was familiarized with the materials of the criminal proceedings.
Satisfying the cassation appeal of the prosecutor and canceling the contested court decisions by the indicated resolution of September 28, 2021, the panel of judges of the Supreme Court noted that in the case under consideration, the investigator sent the suspect and his defense counsel a notice of the completion of the pre-trial investigation on November 3, 2020, therefore the period from the moment the notice was sent to order of Art. 290 of the Criminal Procedure Code of Ukraine, three days remained until the end of the pre-trial investigation period (from November 3 to 6, 2020), since the final date of the pre-trial investigation period was November 6, 2020. Later, on November 9, 2020, the defense party reviewed the materials of the pre-trial investigation. The panel of judges indicated that the course of the pre-trial investigation period was extended for three days after the defense party familiarized itself with the above-mentioned materials (that is, after November 9, 2020). Taking into account the above, the panel of judges of the First Judicial Chamber of the Criminal Court of Cassation concluded in this case that the period of pre-trial investigation does not include the entire period of time from the moment of sending or directly handing over the notification to the defense about the completion of the pre-trial investigation in the manner specified in Art. 290 of the Criminal Procedure Code of Ukraine, and the opening of the materials of the proceedings for review until the end of the familiarization of this party with the materials of the pre-trial investigation.
From the point of view of the panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation, the review of the legality of the decision of the Court of Appeal, which found the local court's conclusion that the opening of the materials of the pre-trial investigation in accordance with Art. 290 of the Criminal Procedure Code of Ukraine and the sending of the indictment to the court took place outside the period of the pre-trial investigation, since the period of familiarization of the defense party with these materials began from the moment of granting it actual unhindered access to such materials, is inextricably linked with the preliminary conclusion of the panel of judges of the First Judicial Chamber that , that the period that is not included in the term of the pre-trial investigation begins from the moment of sending or directly delivering the notice to the defense about the completion of the pre-trial investigation.
At the same time, the panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation considers it necessary to depart from the conclusion regarding the application of the rule of law in similar legal relations, made in case No. 758/12538/20 by the panel of judges of the First Judicial Chamber of the Criminal Court of Cassation and set forth in the resolution of September 28, 2021 .
In particular, Clause 5 of Part 1 of Art. 3 of the Criminal Procedure Code of Ukraine defines that a pre-trial investigation is a stage of criminal proceedings that begins with the entry of information about a criminal offense into the Unified Register of Pre-trial Investigations and ends with the closure of criminal proceedings or the sending to court of an indictment, a request for the application of coercive measures of a medical or educational nature, a request on the release of a person from criminal liability.
According to Part 5 of Art. 219 of the Criminal Procedure Code of Ukraine, the period from the date of issuing a resolution on the suspension of criminal proceedings to the issuance of a resolution on the resumption of criminal proceedings, as well as the period for familiarization with the materials of the pre-trial investigation by the parties to the criminal proceedings in accordance with the procedure provided for in Art. 290 of this Code, is not included in the terms stipulated by this article.
The prosecutor or investigator is obliged to provide access to the materials of the pre-trial investigation at his disposal, including any evidence that, by itself or in combination with other evidence, can be used to prove the innocence or lesser degree of guilt of the accused or contribute to mitigation of punishment. Such actions shall consist in giving the opportunity to copy or display in a suitable manner any physical evidence or parts thereof, documents or copies thereof, and to give access to the premises or place, if they are in the possession or control of the State, and the prosecutor intends to use the information contained in them as evidence in court (parts 2, 3 of Article 290 of the Criminal Procedure Code of Ukraine).
At the same time according to Art. 113 of the Criminal Procedure Code of Ukraine, procedural terms are time periods established by law or in accordance with it by the prosecutor, investigating judge or court, within which the participants in criminal proceedings are obliged (have the right) to make procedural decisions or take procedural actions.
Any procedural action or set of actions during criminal proceedings must be performed without undue delay and in any case no later than the deadline determined by the relevant provision of this Code (Part 2, Article 113 of the Criminal Procedure Code of Ukraine).
Based on the above norms of the Criminal Procedure Code of Ukraine, the panel of judges is convinced that the term of the pre-trial investigation does not necessarily stop from the moment of sending or directly handing the notice to the defense about the completion of the pre-trial investigation in the manner specified in Art. 290 of the Criminal Code of Ukraine, and the opening of the proceedings for review, as the panel of judges of the First Judicial Chamber of the Criminal Court of Cassation concluded.
In connection with that, the panel of judges considers it necessary to depart from the conclusion regarding the application of the provisions of Part 5 of Art. 219 of the Criminal Procedure Code of Ukraine, in similar legal relations, set forth in the decision of the Supreme Court as part of the panel of judges of the First Judicial Chamber dated September 28, 2021 in case No. 758/12538/20 (proceedings No. 51-3811 km 21), and therefore in order to ensure the unity of the judicial practice, this criminal proceeding should be referred to the joint chamber of the Criminal Court of Cassation of the Supreme Court for the formation of such a conclusion on the application of the provisions of Part 5 of Art. 219 of the Criminal Procedure Code of Ukraine: "The beginning of the calculation of the period of familiarization with the materials of the pre-trial investigation is the moment when the prosecution actually gives the defense party access to the materials of the pre-trial investigation and ensures a real opportunity to get acquainted with them."
Guided by Articles 434-1, 434-2 of the Criminal Procedure Code of Ukraine, the Court
decreed:
The criminal proceedings based on the cassation appeal of prosecutor Ivan Viktorovych Kharchenko against the decision of the Dnipro Court of Appeals dated August 17, 2021 regarding PERSON_1 shall be referred to the joint chamber of the Criminal Cassation Court of the Supreme Court.
The decision is final and cannot be appealed.