June 14, 2023 The Supreme Court, by the panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation in case No. 761/40425/16-k, rejected the cassation appeal of the prosecutor against the decision establishing a violation of the order of notification of suspicion to the lawyer.
By the judgment of the district court, which was upheld by the appeals court, the lawyer was found not guilty of the criminal offense provided for h 2 Art. 28, h 1 Art. 366 Criminal Code of Ukraine, and justified.
In the cassation appeal, the prosecutor noted that the appellate court ignored the fact that the acquitted person hid his status as a lawyer and provided information about it only during the trial, thereby violating the requirements h 11th century 290 Communist Party of Ukraine.
The Supreme Court indicated that during the trial, the court of first instance, in a procedurally established manner, received information that the person is a lawyer, has a certificate of the right to practice law, and such information was entered into the Unified Register of Lawyers of Ukraine before it was notified of the suspicion.
At the same time, the report of suspicion was drawn up by the investigator and approved by the prosecutor. Later, the specified investigator handed the lawyer this notice of suspicion.
The panel of judges of the Court of Appeal, referring to the conclusion of the Grand Chamber of the Supreme Court, set forth in the resolution dated December 11, 2019. in case No. 536/2475/14-k , noted that according to the prescriptions Art. 480 According to the Code of Criminal Procedure of Ukraine, a lawyer belongs to the category of persons for whom a special procedure of criminal proceedings is carried out, and in accordance with p. 1 hour 1 Art. 481 A written notification of suspicion of a lawyer to the CPC of Ukraine is carried out by the Prosecutor General, his deputy, the head of the regional prosecutor’s office within the scope of his authority.
The special procedure for notifying a lawyer of suspicion is one of the legally defined guarantees of a lawyer’s exercise of his powers, which correspond to p. 1 p.m. 1 Art. 23 The Law of Ukraine “On Advocacy and Advocacy”, which establishes that notification of a lawyer’s suspicion of committing a criminal offense can be carried out exclusively by the Prosecutor General, his deputy, the prosecutor of the Autonomous Republic of Crimea, the region, the city of Kyiv and the city of Sevastopol.
Agreeing with the conclusion of the court of first instance, the appellate court noted that the violation of the order of notification of suspicion to the lawyer led to the leveling of the tasks of the criminal proceedings outlined in Art. 2 of the CPC of Ukraine.
The legal consequence of notifying a lawyer of suspicion by a person not authorized to do so is that he is not held criminally liable in the manner prescribed by the criminal procedural law. Therefore, the lawyer was not brought to criminal responsibility and he did not acquire the status of a suspect in criminal proceedings due to the non-implementation (non-implementation) of the pre-trial investigation stage (stages) of criminal prosecution.
In the absence of a proper notification of the person about the suspicion, the subsequent drawing up of the indictment itself against the lawyer is groundless and devoid of legal grounds.
The Supreme Court agreed that the prosecution did not provide information to confirm that the defendant concealed the fact that he was a lawyer at the time of being notified of the suspicion of committing a criminal offense.
The unified register of advocates of Ukraine was created and began to function on January 16, 2013. on the basis of the Law of Ukraine “On Advocacy and Advocacy” , and general access to it, at least during the pre-trial investigation in this proceeding, was not limited.
Moreover, it can be seen from the copy of the protocol of the suspect’s interrogation that the investigator, establishing data about the suspect’s identity, only found out from him whether he is a deputy. At the same time, this protocol does not contain any data that the prosecution tried to establish whether he belongs to other special subjects defined in Art. 480 Communist Party of Ukraine.
Prepared by Leonid Lazebnyi