Circumstances of the case: PERSON_1, an employee of a law enforcement agency, during the control of the commission of a crime in the form of an operational purchase illegally for selfish reasons sold to the "buyer" PERSON_4, who, in accordance with the resolution on ensuring the confidentiality of personal data, was involved as PERSON_5, for UAH 420 2 paper rolls with a substance of plant origin, which is a particularly dangerous narcotic drug – cannabis, weighing 1.67 g and 1.71 g, respectively, in terms of dry matter. In addition, PERSON_1, for selfish reasons, purchased from PERSON_2 a polyethylene roll with a substance of plant origin, which is a particularly dangerous narcotic drug – cannabis, weighing 57.63 g in terms of dry substance, which he illegally kept with him for the purpose of further sale and in the same day during the control of the commission of a crime in the form of operational procurement, illegally sold for UAH 1,000 to the "buyer" INDIVIDUAL_4, who was involved as INDIVIDUAL_5 in accordance with the resolution on ensuring the confidentiality of personal data. He also purchased from PERSON_2 a polyethylene roll with a substance of plant origin, which is a particularly dangerous narcotic drug – cannabis, weighing 69.2 g on a dry basis, from PERSON_2, which he put in his personal belongings and began to store, after which he transported it by car to detention by law enforcement officers on the same day.
When entering initial information about the sale of narcotic drugs by a law enforcement officer into the ERDR without specifying personal data is not a violation of the requirements of the Code of Criminal Procedure
Positions of the courts of the first and appellate instances: according to the verdict of the local court, PERSON_1 was found guilty of committing the criminal offenses provided for in Part 2 of Art. 307, Part 2 of Art. 309 of the Criminal Code. According to the same verdict, PERSON_2 was found guilty of committing a criminal offense provided for in Part 2 of Article 307 of the Criminal Code.
The Court of Appeal upheld this sentence.
The position of the CCS: the decision of the local and appellate courts was left unchanged.
Justification of the position of the CCS: the panel of judges recognizes as groundless the arguments in the cassation appeal of the defender about the violation of the requirements of Art. 214 of the Criminal Procedure Code due to failure to submit information about the incriminated PERSON_1 and PERSON_2 criminal offenses to the EDPR.
Checking the similar arguments of the defender in the appeal, the court of appeal reasonably indicated that the reason for starting the pre-trial investigation in this criminal proceeding was the appeal of the witness PERSON_5 to the law enforcement authorities regarding the distribution of a narcotic substance by PERSON_1, and the NSRD was conducted after the relevant information was entered into the ERDR and within the limits of the specified criminal proceedings. On the basis of the analysis of excerpts from the EDPR, the appellate court established the compliance of the data entered into it with the requirements of the Regulations on the EDDR, the procedure for its formation and management regarding the procedure for entering information into it, a summary of the circumstances that may testify to the commission of a criminal offense, and the data that the pre-trial body the investigation was in its initial stages. At the same time, other information unknown at the time of registration of a criminal offense, including the circle of persons involved in the crime, was entered into the EDPR after they were established. At the same time, all this information related to the sale of narcotics. Also, the appellate court rightly focused on the fact that PERSON_1 was a police officer and by virtue of his official powers had access to the ERDR, in connection with which the secrecy of information regarding the names of persons involved in the crime is fully justified. The panel of judges of the court of cassation agrees with the conclusion of the appeals court that the presence in the first version of the extract only refers to the subject of the crime as an employee of the law enforcement agency without indicating his personal data, and in the second already with an indication of specific persons, namely PERSON_1 and PERSON_2, and the entry of information into the EDDR about separate episodes of the crime with a slight gap in time does not indicate the receipt of evidence in this criminal proceeding in violation of the requirements of the criminal procedural law.
The panel of judges also recognized as unfounded the arguments in the cassation appeal of the defender, who, in his opinion, found that the results of all investigative actions conducted in this criminal proceeding with the participation of two witnesses cannot be proper evidence in the proceedings, as he believes that the specified witnesses are interested in the results of the criminal proceedings and dependent from law enforcement agencies. The panel of judges notes that the provisions of the Criminal Procedure Code do not contain reservations in this regard. In addition, it must also be taken into account that PERSON_1 was a police officer and, by virtue of his official powers, had an idea of the methods and methods of investigating certain categories of criminal offenses, in connection with which the secrecy of information about the NSRD, which is being prepared for implementation, and the maximum possible narrowing circles of persons aware of the investigation of offenses committed by PERSON_1 were fully justified.
You can read more about the text of the resolution of the Supreme Court of October 26, 2021 in case No. 263/6791/17 (proceedings No. 51-1102км21) at the link https://reyestr.court.gov.ua/Review/100778831 .