“Appeal of a higher-level prosecutor’s decision to deny a complaint regarding failure to comply with reasonable time limits” — Iryna Hlovyuk, attorney and research advisor at BARRISTERS, LLC

Case law regarding the application of the new paragraph 9-1 of Part 1 of Article 303 of the Code of Criminal Procedure is contradictory. The contradictions lie in the following aspects: Can a letter from a senior prosecutor responding to a complaint under Article 308 of the Code of Criminal Procedure be appealed? What specific issues should be addressed, and what requirements should be appropriately set forth in the complaint? What are the limits of an investigating judge’s authority regarding such a complaint? Let’s try to answer these questions.

Can the letter be appealed?

The Law “On Amendments to Certain Legislative Acts Regarding Ensuring Compliance with the Rights of Participants in Criminal Proceedings and Other Persons by Law Enforcement Agencies During Pretrial Investigations” dated November 16, 2017 No. 2213-VIII, Part 1 of Article 303 of the Code of Criminal Procedure was supplemented with paragraph 91: “A prosecutor’s decision to deny a complaint regarding failure by an investigator, inquiry officer, or prosecutor to observe reasonable time limits during a pretrial

investigation—by the person whose complaint was denied, their representative, legal representative, or defense counsel.”

The question of whether a letter from a higher-level prosecutor responding to a complaint under Article 308 of the Code of Criminal Procedure can be appealed, particularly with regard to whether a ruling must be issued following the consideration of the complaint under Article 308 of the Code of Criminal Procedure, has already been examined in legal publications. It was concluded that a ruling must be issued. However, judicial practice on this issue is not uniform or clear, as demonstrated in the aforementioned and other studies.

It should be noted that there are cases where a complaint was filed specifically against a letter from a higher-level prosecutor: “The investigating judge concludes that the decision of the acting Deputy Head of the Specialized Anti-Corruption Prosecutor’s Office, V.P. Ponomarenko, in the form of a letter dated March 3, 2021, No. 16/1/2-22419-vich-21, sets forth the circumstances that constitute grounds for the decision; the grounds for the decision, their justification, and references to provisions of the Code of Criminal Procedure, which are justified in the context of the evidence provided. Therefore, there are no grounds for granting the complaint against this decision.”

This practice cannot be accepted, as a letter does not constitute a procedural decision. Moreover, the consideration of a complaint involving an assessment of arguments requires the adoption of a well-reasoned and substantiated procedural decision, which, incidentally, is subject to judicial review—which is yet another argument in favor of the fact that this decision can be issued only in the form of a ruling by a higher-level prosecutor.

Local Scope of Proof

The investigating judge determines whether the failure to observe reasonable time limits for the pretrial investigation was challenged under Article 308 of the Code of Criminal Procedure; if it is established that the complaint was forwarded to a higher-level prosecutor, the investigating judge must determine whether the complainant received a response, and if so, in what form. If this response was received in the form of a ruling, the investigating judge must then determine whether the higher-level prosecutor fulfilled the duty to properly consider and resolve the complaint (I.V. Hlovyuk, op. cit., p. 223).

For example, the ruling states: “By a ruling of May 11, 2020, issued by M.O. Hryshchuk, First Deputy Head of the Specialized Anti-Corruption Prosecutor’s Office (SAPO), the complaint was denied. In justifying his decision, the prosecutor noted in the aforementioned decision that the pretrial investigation in the criminal proceedings had been suspended due to the need to carry out procedural actions within the framework of international cooperation, and cited the fact that the current Code of Criminal Procedure does not grant the prosecutor the authority to influence the progress of the relevant request. On this basis, the prosecutor concluded that there were no facts indicating a failure to comply with reasonable time limits in the criminal proceedings and denied the complaint. Thus, based on the reviewed materials of the complaint, including the contested decision, the investigating judge notes that the decision of the First Deputy Head of the Specialized Anti-Corruption Prosecutor’s Office, M.O. Hryshchuk, formalized by a ruling dated May 11, 2020, contains a comprehensive justification for the grounds of its adoption; therefore, this decision meets the requirements of legality.”

Requirements for a complaint: what to include?

An analysis of the rulings of investigating judges shows that complainants formulate their claims in the complaint in various ways:

• to set aside the ruling and order a reconsideration of the complaint (rulings in cases Nos. 947/7605/21 and 991/1887/21);

• to order that the relevant prosecutor be instructed regarding the time limits for performing certain procedural actions and making procedural decisions (Case No. 520/17025/19);

• to overturn the decision of the higher-level prosecutor (Case No. 991/4278/20);

• to declare unlawful the refusal to set reasonable time limits in criminal proceedings and to set a reasonable time limit for the conclusion of criminal proceedings at one month from the date of issuance of the relevant ruling (Case No. 202/496/18);

• to overturn the ruling denying the complaint regarding the prosecutor’s failure to comply with reasonable time limits for closing the criminal proceedings, and toand to issue binding instructions to the prosecutor to close the criminal proceedings pursuant to paragraph 10 of Part 1 of Article 284 of the Code of Criminal Procedure (due to the expiration of the pretrial investigation period);

• order the prosecutor to close the criminal proceedings pursuant to Article 284(1)(10) (due to the expiration of the pretrial investigation period) (Case No. 991/1799/21);

• to overturn the decision set forth in the letter responding to the attorney’s complaint; to order the head of

of the SAP, his first deputy, or a deputy to review the attorney’s complaint, and, based on the results of that review, to instruct the senior prosecutor of the SAPO prosecutor group responsible for overseeing compliance with the law during the pretrial investigation—in the form of procedural guidance of the pretrial investigation in the criminal proceedings— a reasonable time limit for performing one of the actions provided for in Part 2 of Article 283 of the Code of Criminal Procedure (Case No. 991/9071/20).

Undoubtedly, it is logical to require the reversal of a higher-level prosecutor’s decision, given the rulings that an investigating judge may issue under Part 2 of Article 307 of the Code of Criminal Procedure. A request to compel the higher-level prosecutor to reconsider the complaint also falls within this list of decisions.

Regarding the recognition of the unlawfulness of the refusal to grant the complaint or the illegality of the decision by the higher-level prosecutor. Judicial practice is not uniform. For example, there are cases where the deputy head of the prosecutor’s office’s refusal to grant a complaint regarding failure to comply with reasonable time limits has been deemed unlawful (Case No. 202/496/18).

However, there is also the opposing view that an investigating judge lacks the authority to declare a decision by a higher-level prosecutor unlawful, since “Article 307 of the Code of Criminal Procedure establishes an exhaustive list of decisions that may be rendered by an investigating judge following the consideration of complaints against decisions, actions, or inaction by an investigator or prosecutor during a pretrial investigation. In light of the foregoing, the investigating judge is not empowered, following the consideration of a complaint, to declare unlawful a prosecutor’s decision to deny a complaint regarding

failure to observe reasonable time limits as unlawful” (Case No. 991/3672/20).

The latter interpretation of the relevant provisions of the Code of Criminal Procedure should be supported, since Article 307 of the Code of Criminal Procedure does not, in fact, provide for a separate ruling such as declaring an action, inaction, or decision to be unlawful (unjustified, illegal). However, such a determination is a mandatory prerequisite for overturning a decision or for ordering the cessation or performance of an action.

Regarding the wording “to issue written instructions to NABU detectives to ensure compliance with reasonable time limits for carrying out one of the actions provided for in Part 2 of Article 283 of the CPC,” the High Anti-Corruption Court ruled as follows (Case No. 991/1642/21): “The investigating judge finds no grounds to rule on the obligation of the acting head of the Specialized Anti-Corruption Prosecutor’s Office, M.O. Hryshchuk, to issue instructions to the relevant prosecutor regarding the timeframes for performing certain procedural actions or making a procedural decision in criminal proceedings, including those provided for in Part 2 of Article 284 of the CPC.”

Thus, the contested decision of the higher-level prosecutor does not contain proper reasoning and justification for denying the defense’s complaint, which deprives the investigating judge of the ability to verify whether such a prosecutor has grounds to issue instructions to a prosecutor in criminal proceedings regarding the deadline for rendering a procedural decision. However, given that Article 308 of the Code of Criminal Procedure provides for the authority to issue binding instructions regarding the time limits for performing certain procedural actions or adopting procedural decisions, and paragraph 3 of Part 2 of Article 307 of the CPC lists, among the decisions of the investigating judge, the obligation to perform a specific action, such a requirement

is also relevant to a complaint under Article 308 of the Code of Criminal Procedure.

Obligation to Set a Reasonable Time Limit?

A complex issue is whether it is possible to oblige a higher-level prosecutor to set a reasonable time limit for performing one of the actions provided for in Part 2 of Article 283 of the Code of Criminal Procedure. This must be considered both in terms of how it is phrased in the complaint and in terms of the investigative judge’s authority.

On the one hand, the complainant is not limited in a complaint under Article 308 of the CPC to the measures that, in his or her opinion, a higher-level prosecutor should use to ensure that the pretrial investigation is conducted within a reasonable time, given the provisions of Article 308 and Part 1 of Article 28 of the CPC, which state that the prosecutor is responsible for ensuring that the pretrial investigation is conducted within a reasonable timeframe. On the other hand, to set a deadline for rendering a decision under Article 283 of the CPC, the mechanism provided for in Articles 28 and 114 of the CPC is more appropriate (taking into account the provisions of Resolution No. 11 of the Plenum of the High Council of Justice “On Certain Issues Regarding Compliance with Reasonable Time Limits for the Consideration by Courts of Civil, Criminal, and Administrative Offense Cases” dated October 17, 2014). It provides that, based on the results of the consideration of a motion by a suspect, defendant, or victim regarding the need to conduct criminal proceedings (or specific procedural actions) within shorter time limits than those provided for in the CPC (Article 28(6) of the CPC), the decision must be based on the principle that the procedural autonomy of the investigator, as well as the independence and impartiality of judges, must not be compromised. Therefore, when considering such a motion, the prosecutor, the investigating judge, or the court is not authorized to decide on the reliability and sufficiency of evidence, to grant

preference to any of them; determine exactly which procedural decisions should be made in the conduct of criminal proceedings; or take any other actions aimed at interfering with the lawful activities of the investigator, prosecutor, investigating judge, or court regarding the conduct of criminal proceedings).

Accordingly, the logic behind the wording in the investigating judge’s ruling (Case No. 991/1799/21) is clear, that “the lawyer’s request, as set forth in the petition portion of the complaint, to compel the prosecutor to issue a decision to dismiss the criminal proceedings on the basis of paragraph 10 of Part 1 of Article 284 of the Code of Criminal Procedure is unlawful. After all, this goes beyond the scope of judicial review in criminal proceedings in accordance with the powers of the investigating judge, given the provisions of Articles 3, 36, and 307 of the Code of Criminal Procedure.”

Scope of Review

Case law on this fundamental issue is inconsistent. The Second Judicial Chamber of the Cassation Criminal Court has been asked to rule on the correct application of the provisions of criminal procedural law contained in Article 309 and Part 4 of Article 399 of the Code of Criminal Procedure, namely: whether rulings by an investigating judge setting a procedural deadline for the completion of a pretrial investigation—issued pursuant to Article 3, Article 28(6), and Article 114(1) and (2) of the CPC—may be subject to review by a court of appeals. Accordingly, the conclusion regarding the application of the law is as follows: rulings by investigating judges issued pursuant to Articles 28 and 114 of the Code of Criminal Procedure are not subject to separate appeal in accordance with the provisions of Article 309 of the Code of Criminal Procedure. The Supreme Court of Ukraine did not rule on Article 308 of the Code of Criminal Procedure in this case.

At the same time, on May 16, 2019, in a ruling by a panel of judges of the Second Judicial Chamber of the Supreme Court, which considered the cassation appeal filed by the prosecutor of the Prosecutor General’s Office against the ruling of the Kyiv City Court of Appeal in criminal proceedings registered in the Unified Register of Pre-trial Investigations under No. *000281. By a ruling of the investigating judge of the Shevchenkivskyi District Court of Kyiv dated July 11, 2018, the attorney’s motion was partially granted, and set a procedural deadline for the investigator of the Main Investigation Department of the Security Service of Ukraine to complete the pretrial investigation in this case, which may not exceed two months.

By a ruling of the Administrative Court of Kyiv dated July 26, 2018, the request to initiate proceedings was denied. The High Criminal Court noted that none of the provisions of criminal procedural law—including those cited by the investigating judge in the ruling—grant him the authority to set a procedural deadline for the investigator to complete the pretrial investigation. Undoubtedly, by issuing this ruling, the investigating judge exceeded the scope of the Code of Criminal Procedure, as criminal procedural law does not provide for such a decision.

Again, the issue did not concern Article 308 of the CPC. However, the logic of the ruling can be extrapolated to legal situations within the scope of appeals under Article 303(9-1) of the CPC.

In this regard, Vira Mykhailenko notes that “most investigating judges, when considering complaints against a prosecutor’s decision to deny a complaint regarding failure to comply with reasonable time limits, take the position that the investigator and prosecutor have discretionary authority... On the one hand, this seems entirely logical, since, according to the provisions of the Code of Criminal Procedure, the prosecutor, the investigating judge, and the preliminary inquiry officer, in exercising their

powers in accordance with the requirements of the CPC, are independent in their procedural activities. On the other hand, if the inaction of the investigator, the preliminary inquiry officer, or the prosecutor leads to an unjustified prolongation of the pretrial investigation, delays, and unwarranted delays in conducting procedural actions, which ultimately results in a violation of reasonable time limits, should the investigating judge not respond more specifically than merely ordering a review of the complaint regarding non-compliance with reasonable time limits or overturning the ruling denying the complaint regarding non-compliance with reasonable time limits? (Mykhailenko, V., op. cit., p. 7)

To illustrate, here is the reasoning behind the investigating judge’s ruling in Case No. 991/9071/20: “Pursuant to Part 1 of Article 36 of the Code of Criminal Procedure, a prosecutor, in exercising his or her powers in accordance with the requirements of the Code of Criminal Procedure, is independent in his or her procedural activities. In resolving the issue regarding the obligation of the First Deputy Head of the Specialized Anti-Corruption Prosecutor’s Office (SAPO), M.O. Hryshchuk, following the review of the attorney’s complaint dated October 15, 2020, to instruct the senior prosecutor of the SAPO prosecutor group, which is exercising procedural supervision over the pretrial investigation in the criminal proceedings, a reasonable time limit for performing one of the actions provided for in Part 2 of Article 283 of the Code of Criminal Procedure, does not fall within the jurisdiction of the investigating judge and would contradict the general principles of criminal procedure.”

In general, regarding the scope of an investigating judge’s powers in this complaint, we can say that—as in other complaints filed under Article 303 of the Code of Criminal Procedure—they are not clearly defined, which, as noted, leads to

problems in the application of the law. If the complaint is granted, the investigating judges issue a decision to overturn the prosecutor’s ruling (Case No. 991/9071/20) or order a reconsideration of the complaint (Case No. 202/496/18).

There is even a reasoning (Case No. 202/496/18) stating that the powers of an investigating judge, following the consideration of a complaint against a prosecutor’s ruling denying a complaint regarding an investigator’s failure to comply with reasonable time limits, during the pretrial investigation, the investigative judge’s powers are limited exclusively to issuing a ruling to overturn the decision of the investigator or prosecutor, or to dismiss the complaint (Articles 307(1) and (2) of the Code of Criminal Procedure). At the same time, given the list of rulings that an investigating judge may issue, a decision requiring a higher-level prosecutor to issue binding instructions to the relevant prosecutor regarding the timeframes for performing certain procedural actions or making procedural decisions would not be contrary to the law.

Requirement to Set a Time Limit

Regarding the requirement to set a deadline for rendering a decision pursuant to Article 283 of the Code of Criminal Procedure, we note the following. It appears that this issue should be resolved depending on the specific claims raised in the complaint under Article 308 of the CPC. After all, as emphasized, the complainant is not limited in the claims they may raise, given the provisions of Articles 28 and 308 of the CPC.

If such a request was made in the complaint and was denied, we are confident that, since the denial of the complaint is being reviewed within the scope of the complaint itself, this issue may be resolved by the investigating judge. Of course, without specifying exactly which procedural decision should be made by the prosecutor, the investigator,

or the investigating officer. If, however, such a request was not made in the complaint to the higher-level prosecutor, then there are no grounds for the investigating judge to consider and grant it, as this would go beyond the scope of the appeal.

Thus, the ruling dated March 17, 2021, in Case No. 991/1799/21 states: “The arguments of the defense set forth in the complaint against the prosecutor’s ruling denying the complaint regarding failure to comply with reasonable time limits go beyond the scope of the complaint filed with the prosecutor on February 18, 2021, and therefore cannot be assessed by the investigating judge in the context of the prosecutor’s ruling dated March 1, 2021.” In other words, the investigating judge did not evaluate certain claims in the complaint because they were not included in the initial complaint to the higher-level prosecutor pursuant to Article 308 of the Code of Criminal Procedure.

Some Conclusions and Recommendations

Therefore, taking into account the provisions of the Code of Criminal Procedure and the judicial practice established under Article 303(91) of the Code of Criminal Procedure, we note that it is appropriate to include the following claims in the complaint:

• to overturn the decision of the higher-level prosecutor following the review of the complaint under Article 308 of the Code of Criminal Procedure;

• to order the higher-level prosecutor to reconsider the complaint under Article 308 of the CPC;

• to order the higher-level prosecutor to issue binding instructions to the relevant prosecutor regarding the deadlines for performing certain procedural actions or making procedural decisions;

• set a deadline for rendering a decision in accordance with Article 283 of the Code of Criminal Procedure (if such a request

was set forth in the complaint under Article 308 of the Code of Criminal Procedure).