The Criminal Court of Cassation as part of the Supreme Court overturned the decision of the Court of Appeal, which closed the appeal proceedings regarding the appeal against the decision of the investigating judge. This resolution concerned the selection of a preventive measure in the form of detention in accordance with the procedure provided for in Part 6 of Art. 193 of the Criminal Procedure Code of Ukraine, as a suspect who is outside Ukraine and has been declared internationally wanted. The appellate court referred to the impossibility of appeal in the appellate procedure of such a decision of the investigating judge. However, the CCS of the Supreme Court did not agree with him, taking into account the recent conclusion of the joint chamber of the CCS of the Supreme Court and the need to observe the constancy and unity of judicial practice provided by the Supreme Court.
As stated in the resolution of the CCS of the Supreme Court, the procedure provided for in Part 6 of Art. 193 of the Criminal Procedure Code of Ukraine, is a case that allows the court to consider a request to choose a preventive measure in the form of detention and to choose such a preventive measure in the absence of the suspect, the accused only if the prosecutor proves the existence of the grounds provided for in Art. 177 of the CPC of Ukraine. There must also be sufficient grounds to believe that the suspect, the accused has left and/or is in the temporarily occupied territory of Ukraine, the territory of a state recognized by the Verkhovna Rada of Ukraine as an aggressor state, and/or declared an international wanted person.
In such circumstances, choosing a preventive measure in the form of detention in the absence of the suspect, the accused, although it does not lead to the immediate arrest of the person, is a legal basis for the detention and delivery of this person to the place of criminal proceedings.
Therefore, the selection of a preventive measure in the form of detention in accordance with the procedure provided for in Part 6 of Art. 193 of the Criminal Code of Ukraine, has the legal consequence of limiting the right to freedom and personal integrity.
The possibility of an appeal against the decision of the investigating judge, the court on the selection of a preventive measure in the form of detention, issued in accordance with the procedure of Part 6 of Art. 193 of the Criminal Procedure Code of Ukraine, was the subject of consideration by the joint chamber of the Supreme Court of Justice. The latter made a conclusion that the decision of the investigating judge, the court on choosing a preventive measure in the form of detention, was issued in accordance with Part 6 of Art. 193 of the Criminal Procedure Code of Ukraine, on the basis of Clause 2, Part 1, Art. 309 of this Code can be appealed in the appeal procedure (the decision of the OP of the Supreme Court of Justice of February 14, 2022 in case No. 991/3440/20 (proceeding No. 51-5359кмо21) – https://reyestr.court.gov.ua/Review/103466876 ).
In accordance with the law, the Supreme Court ensures stability and unity of judicial practice in the order and manner determined by procedural legislation. This task is implemented, in particular, through the administration of justice, during which the Supreme Court in its decisions expresses a legal position regarding law enforcement, thus directing judicial practice to the uniform application of legal norms. Conclusions regarding the application of legal norms set forth in Supreme Court decisions are taken into account by other courts when applying such norms.
Resolution of the Supreme Court of Justice of the Supreme Court in case No. 991/2461/20 (proceedings No. 51-3058км20) – https://reyestr.court.gov.ua/Review/105774882 .