Yulia Goncharenko, a legal assistant at Barristers Law Firm, discusses the challenges of appealing investigative judges’ rulings on the seizure of property on the grounds of a violation of the requirements of Part 5 of Article 171 of the Criminal Procedure Code of Ukraine

Issues Regarding Appeals of Investigating Judges’ Rulings on the Seizure of Property on the Grounds of a Violation of the Requirements of Part 5 of Article 171 of the Code of Criminal Procedure of Ukraine

(failure by the investigator to file a motion with the investigating judge for the seizure of property within the prescribed time limit)

An analysis of judicial practice regarding appeals against rulings by investigating judges concerning non-compliance with the requirements of Part 5 of Article 171 of the Criminal Procedure Code of Ukraine, namely the failure to meet the deadline for an investigator to file a motion with an investigating judge to seize property, draws attention to the ambiguous interpretation of the provisions of Part 3 of Article 172 of the Criminal Procedure Code of Ukraine by appellate courts.

Thus, the practice of the judges of the Odesa Court of Appeals on this issue has split into two schools of thought. Under the first of these, when considering appeals against motions to seize property, it is held that a violation of the time limit for an investigator to submit a motion for the seizure of property to the investigating judge constitutes grounds for returning the motion to the prosecutor to remedy the deficiencies within 72 hours. Under the second approach—so to speak—a violation of the requirements of Part 5 of Article 171 of the Code of Criminal Procedure of Ukraine is an unconditional ground for overturning the investigating judge’s ruling. In light of this, the question arises: which of the positions outlined above is consistent with the provisions of the Code of Criminal Procedure of Ukraine?

Regarding the first assertion, although the panel of judges acknowledges that the motion was filed after the deadline in violation of the requirements of Part 5 of Article 171 of the Code of Criminal Procedure of Ukraine, it nevertheless considers this to be grounds for returning the motion to the prosecutor so that the deficiencies may be remedied within 72 hours. In support of its position, the panel of judges notes the absence of a motion by the investigator to extend the deadline for filing a motion to seize property, accompanied by arguments regarding the validity of the missed deadline, and emphasizes that in such a case, (in the event of a violation of the requirements of Part 5 of Article 171 of the Code of Criminal Procedure of Ukraine), the investigating judge is obligated to return the motion to the prosecutor to remedy the deficiencies, citing the provisions of Part 3 of Article 172 of the Code of Criminal Procedure of Ukraine. By taking this position, the investigating judge effectively sides with the prosecution and gives it a chance to rectify the situation; but the question arises: how can the specified “deficiency” be remedied if the deadline has passed, and is such a position consistent with the provisions of the Code of Criminal Procedure of Ukraine[1].

Pursuant to Part 3 of Article 172 of the Code of Criminal Procedure of Ukraine, if an investigating judge or a court determines that a motion for the seizure of property was filed without complying with the requirements of Article 171 of this Code, shall return it to the prosecutor and the civil claimant and set a period of seventy-two hours—or, taking into account the opinion of the investigator, prosecutor, or civil claimant, a shorter period—to remedy the deficiencies, and shall issue a ruling to that effect. In such a case, property temporarily seized from the individual shall be returned immediately upon the expiration of the time limit set by the judge, and, if a motion is filed within the time limit set by the judge after the deficiencies have been remedied, after the motion has been considered and denied.

Referring to the provisions of Article 171 of the Code of Criminal Procedure of Ukraine, to which Part 3 of Article 172 of the Code of Criminal Procedure of Ukraine refers, it can be seen that Article 171 encompasses the following three aspects:

• the parties authorized to file a motion for the seizure of property with the investigating judge (Article 171(1) of the CPC);
• requirements regarding the content of a motion to seize property (Parts 2 and 3 of Article 171 of the CPC of Ukraine);
• the deadline for filing the motion with the investigating judge (Part 5 of Article 171 of the CPC of Ukraine).

Based on a literal interpretation of the provisions of Part 3 of Article 172 of the Code of Criminal Procedure of Ukraine, it can be concluded that in the event of non-compliance with any of the requirements specified in Article 171 of the CPC of Ukraine, such a motion shall be returned to the prosecutor for correction of the deficiencies.

It is evident that the panel of judges proceeded precisely on these grounds, noting that in the event of a violation of the time limit established by Part 5 of Article 171 of the Code of Criminal Procedure of Ukraine, investigating judges are required to return the motion for seizure of property to the prosecutor to remedy the deficiencies.

However, a further analysis of the provisions of the Code of Criminal Procedure of Ukraine allows for a different, more logical conclusion, since in such a case, based on these considerations, the provisions of Part 5 of Article 171 of the Code of Criminal Procedure of Ukraine cannot under any circumstances be applied in practice. Thus, the provisions of Part 5 of Article 171 of the CPC of Ukraine stipulate that a motion by an investigator or prosecutor to seize temporarily seized property must be filed no later than the next business day following the seizure of the property; otherwise the property must be immediately returned to the person from whom it was seized. In the event of the temporary seizure of property during a search or inspection conducted pursuant to an investigative judge’s ruling under Article 235 of this Code, a motion to seize such property must be filed by the investigator or prosecutor within 48 hours after the property is seized; otherwise, the property must be immediately returned to the person from whom it was seized.

The aforementioned provision of Part 5 of Article 171 of the Code of Criminal Procedure of Ukraine is inconsistent with the requirements of Part 3 of Article 172 of the Code of Criminal Procedure of Ukraine, according to which “property temporarily seized from a person shall be returned immediately upon the expiration of the time limit set by the judge” for the prosecutor to remedy any deficiencies, “and in the event of a motion filed within the time limit set by the judge after the deficiencies have been remedied—after the motion has been considered and denied.”

This raises the question: Is property that has been temporarily seized subject to immediate return to the person from whom it was seized —immediately after it is established that the time limits provided for in Part 5 of Article 171 of the Code of Criminal Procedure of Ukraine have been violated, or after the expiration of the time limit set by the judge for the prosecutor to remedy the deficiencies?

It is evident that in order for the provisions of both Part 5 of Article 171 and Part 3 of Article 172 of the Code of Criminal Procedure of Ukraine to be applicable in practice, the legislature, in Part 3 of Article 172—by referring to the provisions of Article 171 of the Code of Criminal Procedure of Ukraine—had in mind specifically a violation of the requirements of Part 2, and 3 of that article, since the investigating judge or court, having established that the motion to seize property was filed without complying with the requirements of Article 171 of this Code (Article 172(3) of the Code of Criminal Procedure of Ukraine), that is, compliance with the requirements regarding the content of the motion, which are set forth specifically in Parts 2 and 3 of Article 171 of the Code of Criminal Procedure of Ukraine.

Moreover, this position is consistent with other similar provisions of the Code of Criminal Procedure of Ukraine.

Thus, pursuant to Part 6 of Article 173 of the CPC of Ukraine, the investigating judge or court shall issue a ruling on the seizure of temporarily seized property no later than seventy-two hours from the date the motion is received by the court; otherwise, such property shall be returned to the person from whom it was seized.

That is, in such cases, where the deadline for considering the motion has been missed (Part 6 of Article 173 of the CPC of Ukraine), the temporarily seized property is returned to the person from whom it was seized. Therefore, similarly, failure to meet the deadline for filing a motion with the investigating judge (Article 171(5) of the Code of Criminal Procedure of Ukraine) results in the same consequence: the return of the temporarily seized property.

Furthermore, pursuant to Article 173(3) of the Code of Criminal Procedure of Ukraine, a denial or partial grant of a motion to seize property entails the immediate return to the person of all or part of the temporarily seized property, as appropriate.

In light of this, the return of temporarily seized property to the individual is always accompanied by a denial of the motion for seizure.

Pursuant to the provisions of paragraph 3 of Part 1 of Article 409 of the Criminal Procedure Code of Ukraine, a substantial violation of the requirements of criminal procedural law constitutes grounds for overturning or modifying a court decision during the consideration of a case by an appellate court. Moreover, substantial violations of the requirements of criminal procedural law are those violations of this Code that prevented or could have prevented the court from rendering a lawful and well-founded judicial decision (Part 1 of Article 412 of the Criminal Procedure Code of Ukraine).

In this particular case, however, it remains unclear what reasoning the court relied upon in giving preference to Part 3 of Article 172 rather than Part 5 of Article 171 of the CPC of Ukraine, thereby adopting the prosecution’s position, which prevents the court from rendering a lawful judicial decision.

Therefore, the failure to meet the deadline provided for in Part 5 of Article 171 of the Code of Criminal Procedure of Ukraine constitutes an unconditional ground for overturning the ruling on the seizure of property, a view partially supported by the case law of the Odesa Court of Appeals.[2]

However, unfortunately, the ambiguous interpretation of the provisions of the Code of Criminal Procedure of Ukraine leads to significant violations of rights, in particular those of the person from whom the property was seized, and consequently, the legality and validity of a court decision quite often depend on the composition of the court and its interpretation of the provisions of the CPC of Ukraine, in the absence of a single, established position. This by no means attests to the court’s legality and impartiality and does not contribute to a fair trial, as required by the objectives of criminal proceedings; and therefore, such inconsistencies in the provisions of the Code of Criminal Procedure of Ukraine must be resolved at the legislative level to prevent further violations of rights in criminal proceedings due to their ambiguous interpretation.

[1] Ruling of the Odesa Court of Appeals dated July 10, 2017, case number: 11-ss/785/1074/17, local court case number: 502/908/17 [Electronic resource]. Available at: http://www.reyestr.court.gov.ua/Review/67674699

Ruling of the Odessa Regional Court of Appeal dated October 11, 2016, case number: 11-ss/785/1401/16, local court case number: 522/17704/16-k, [Electronic resource]. Available at: http://www.reyestr.court.gov.ua/Review/62046952

Ruling of the Odesa Court of Appeals dated May 22, 2019, case number: 11-ss/813/692/19, local court case number: 522/21542/18 1-ks/522/23077/19 [Electronic resource]. Access: http://reyestr.court.gov.ua/Review/82149257

Ruling of the Odesa Regional Court of Appeal dated October 17, 2018, case number: 11-ss/785/1546/18, local court case number: 522/509/18 1-ks/522/16101/18 [Electronic resource]. Access: http://www.reyestr.court.gov.ua/Review/77376405

[2] Ruling of the Odesa Court of Appeals dated May 13, 2019, case number: 11-ss/813/769/19, local court case number: 496/1498/19 1-ks/496/911/19, [Electronic resource]. Available at: http://www.reyestr.court.gov.ua/Review/81871582

Ruling of the Odesa Regional Court of Appeal dated March 1, 2017, case number: 11-ss/785/296/17, local court case number: 522/2731/17, 1-ks/522/2501/17 [Electronic resource]. Access: http://www.reyestr.court.gov.ua/Review/65095821

Ruling of the Odesa Regional Court of Appeal dated July 4, 2017, case number: 11-ss/785/1005/17, local court case number: 522/16521/17 17 [Electronic resource]. Available at: http://www.reyestr.court.gov.ua/Review/67576811

Ruling of the Odesa Regional Court of Appeal dated May 23, 2018, case number: 11-ss/785/866/18, local court case number: 522/6432/18 [Electronic resource]. Available at: http://www.reyestr.court.gov.ua/Review/74354992