The court’s decision to return the indictment to the prosecutor for submission, taking into account the requirements of Chapter 25 of the Criminal Procedure Code, is not subject to appeal in the appeal procedure

Positions of the courts of the first and appellate instances: according to the decision of the local court, the indictment with the register of materials of the pre-trial investigation of the criminal proceedings against PERSON_1, accused of committing criminal offenses, provided for in Part 2 of Art. 185, Part 3 of Art. 185, Part 1 of Art. 309, Part 2 of Art. 309 of the Criminal Code, returned to the head of the prosecutor's office for input taking into account the requirements of Chapter 25 of the Criminal Code.

The Court of Appeal refused the prosecutor to open proceedings on the basis of Part 4 of Art. 399 of the Criminal Procedure Code due to the fact that an appeal was filed against a court decision that is not subject to appeal.

In the cassation appeal, the prosecutor points out that the appellate court ignored the fact that the decision to return the indictment was issued by the court during the preliminary court session, and it is subject to appeal on the basis of Part 4 of Art. 314, p. 2, part 2, art. 395 of the CCP.

Grounds for considering the criminal proceedings of the OP: the need to deviate from the conclusion regarding the application of the rule of law in similar legal relations and in order to ensure the unity of judicial practice regarding the appellate appeal of the decision of the local court, by which the indictment in criminal proceedings was returned to the prosecutor accusing a person of committing a criminal offense and a criminal misdemeanor.

OP's position: the decision of the appellate court was left unchanged.

Justification of the OP's position: the OP found no reason to deviate from the conclusion regarding the application of legal norms in similar legal relations, set out in the previously adopted resolution of the Supreme Court of Appeals dated 07.12.2020 in case No. 161/8011/20 (proceedings No. 51-5737sk20).

The Code of Criminal Procedure does not contain an exhaustive list of violations when drawing up the indictment, which determines its return. At the same time, Clause 3, Part 3, Art. 314 of the CCP refers to Art. 291 of this Code, which provides an opportunity to determine the list of violations that are derived from the requirements for the final document of the pre-trial investigation laid down in this article: violations that relate to the content and form of the indictment itself, the content and presence of appendices to the indictment. The purpose of returning an indictment in criminal proceedings for crimes defined as criminal misdemeanors in accordance with the provisions of the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine Regarding Simplification of Pretrial Investigation of Certain Categories of Criminal Offenses" is only the introduction of an indictment taking into account the procedure specified in Chapter 25 of the CCP. Thus, the basis for the return of the indictment according to paragraphs 5 p. 4 of the final and transitional provisions of the specified Law of Ukraine is inconsistent with the law of the procedure for entering this indictment, in contrast to the provisions of p. 3 part 3 of art. 314 of the Criminal Procedure Code, which refers to the shortcomings of the indictment as the final document of the pre-trial investigation.

In addition, the prescriptions of paragraphs 5, paragraph 4 of the final and transitional provisions of the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine Regarding Simplification of Pretrial Investigation of Certain Categories of Criminal Offenses" on the return of the indictment, in contrast to the provisions of paragraph 3, part 3 of Article 314 of the Code of Civil Procedure, set out as an imperative and unconditional requirement for the court, which also indicates the absence of the subject of appellate review in accordance with Clause 3, Part 3 of Art. 314 of the Code of Criminal Procedure, namely "compliance or non-compliance of the indictment with the requirements of this Code."

At the same time, Part 4 of Art. 314 of the Criminal Procedure Code directly provides for the possibility of appeal in the appellate procedure of the decision on the return of the indictment, adopted in accordance with the prescriptions of Art. 314 of the Criminal Procedure Code, but special rules regarding the possibility of appealing the return of the indictment on the basis of paragraphs 5 p. 4 of the final and transitional provisions of the Law "On Amendments to Certain Legislative Acts of Ukraine Regarding Simplification of Pretrial Investigation of Certain Categories of Criminal Offenses" is not contained in the current CCP.

In view of the above, the return of the indictment under para. 5.4 of the final and transitional provisions of the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine Regarding Simplification of Pretrial Investigation of Certain Categories of Criminal Offenses" is a sui generis criminal procedural act, that is, its construction is unique, unique in its kind

Therefore, criminal procedural acts (mechanisms) of returning the indictment to the prosecutor in the manner prescribed by Art. 314 of the Code of Criminal Procedure, and the return of the indictment to the prosecutor for filing taking into account the requirements of Chapter 25 of the Code of Criminal Procedure, established in paragraphs 5 point 4 of the final and transitional provisions of the Law "On Amendments to Certain Legislative Acts of Ukraine on Simplification of Pretrial Investigation of Certain Categories of Criminal Offenses" are not identical.

Proceeding from the established in clause 3 part 1 and para. 1 h. 2 st. 392 of the Code of Criminal Procedure of the General Rule on the inadmissibility of a separate appeal of decisions made during court proceedings in the court of first instance prior to the adoption of court decisions provided for in part 1 of this article, except for the cases specified by this Code and the absence of a corresponding instruction in the rules of the Code of Criminal Procedure regarding the possibility of appealing a decision of the local court on the return of the indictment to the prosecutor for filing, taking into account the requirements of Chapter 25 of the Criminal Procedure Code, is not subject to appeal.

As can be seen from the materials of the criminal proceedings, the local court received an indictment against PERSON_1, accused of committing criminal offenses provided for in Part 2 of Article 185, Part 3 of Art. 185, Part 1 of Art. 309, Part 2 of Art. 309 of the Criminal Code.

Given that the criminal offense provided for in Part 1 of Art. 309 of the Criminal Code, in accordance with Art. 12 of the Criminal Code belongs to criminal misdemeanors, and this criminal proceeding was not scheduled for trial, the local court in the preparatory court session by decision returned the indictment with the register of materials of the pre-trial investigation of the criminal proceeding to the prosecutor for submission taking into account the requirements of Chapter 25 of the Criminal Procedure Code.

The appellate court refused to open proceedings based on the prosecutor's appeal against the decision of the local court regarding PERSON_1 on the basis of Clause 4 of Art. 399 of the CCP. At the same time, the appellate court referred to the provisions of paragraphs 5.4 of the final and transitional provisions of the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine Regarding Simplification of Pretrial Investigation of Certain Categories of Criminal Offenses", noting that the prosecutor filed an appeal against the decision of the court of first instance, which was appealed in view of the above provisions of the Law is not provided for, therefore the specified court decision cannot be the subject of review by the appeals court.

Since the return of the indictment to the prosecutor under paragraphs 5, paragraph 4 of the final and transitional provisions of the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine Regarding Simplification of Pretrial Investigation of Certain Categories of Criminal Offenses" has a different procedural basis, in contrast to the prescriptions of paragraph 3, part 3 of Article 314 of the Criminal Procedure Code and, based on the content of Art. 392 of this Code regarding court decisions that can be challenged in the appeal procedure, the OP considers the decision of the appeals court to refuse to open proceedings on the prosecutor's appeal against the decision of the local court regarding PERSON_1 correct.

Conclusion: criminal procedural acts (mechanisms) of returning the indictment to the prosecutor in accordance with the procedure provided for by the Code of Criminal Procedure and returning the indictment to the prosecutor for submission taking into account the requirements of Chapter 25 of the Code of Criminal Procedure in accordance with subsection 5, paragraph 4 of the Final and Transitional Provisions of the Law of Ukraine "On Amendments to of some legislative acts of Ukraine on simplification of pretrial investigation of certain categories of criminal offenses" are not identical.

Proceeding from the established in clause 3, part 1 and para. 1 h. 2 st. 392 of the Code of Criminal Procedure of the General Rule on the inadmissibility of a separate appeal of decisions made during court proceedings in the court of first instance prior to the adoption of court decisions provided for in part 1 of this article, except for the cases specified by this Code and the absence of a corresponding instruction in the rules of the Code of Criminal Procedure regarding the possibility of appealing a decision of the local court on the return of the indictment to the prosecutor for filing, taking into account the requirements of Chapter 25 of the Criminal Procedure Code, is not subject to appeal.

You can read more about the text of the decision of the OP dated November 1, 2021 in case No. 161/7092/20 (proceedings No. 51-5946kmo20) at the link https://reyestr.court.gov.ua/Review/100919039 .

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