REGARDING THE PROSECUTOR IN THE SEPARATE CRIMINAL PROCEEDINGS

According to Article 3 of the Law of Ukraine “On the Prosecutor’s Office,” the activities of the Prosecutor’s Office are based, in particular, on the principles of the rule of law and the recognition of the human person, their life and health, honor and dignity, inviolability, and safety as the highest social values; on legality, justice, impartiality, and objectivity.

Paragraph 15 of Part 1 of Article 3 of the Criminal Procedure Code of Ukraine defines a prosecutor as a person who holds the position provided for in Article 17 of the Law of Ukraine “On the Prosecutor’s Office” and acts within the scope of his or her authority.

In accordance with Part 1 of Article 36 of the Code of Criminal Procedure of Ukraine, a prosecutor, in exercising his or her powers in accordance with the requirements of this Code, is independent in his or her procedural activities, and interference in such activities by persons who do not have the legal authority to do so is prohibited. State authorities, local self-government bodies, enterprises, institutions, and organizations, as well as public officials and other individuals, are required to comply with the lawful demands and procedural decisions of the prosecutor.

Article 37 of the Criminal Procedure Code of Ukraine governs the appointment of a prosecutor in criminal proceedings.

Thus, pursuant to Part 1 of Article 37 of the CPC of Ukraine, the prosecutor who will exercise the powers of a prosecutor in a specific criminal proceeding is designated by the head of the relevant prosecutorial authority after the commencement of the pretrial investigation. If necessary, the head of the prosecutorial authority may designate a group of prosecutors to exercise the powers of prosecutors in a specific criminal proceeding, as well as a senior prosecutor for such a group who will direct the actions of the other prosecutors.

Thus, the appointment and powers of a prosecutor in criminal proceedings are clearly regulated by the CPC of Ukraine.

At the same time, questions often arise in practice regarding the prosecutor in a separated criminal proceeding, in particular, whether a prosecutor who exercised his or her powers in a criminal proceeding may continue to exercise those powers in the separated proceeding.

Pursuant to Article 217(3) of the CPC of Ukraine, if necessary, the materials of a pretrial investigation concerning one or more criminal offenses may be separated into a separate proceeding, if a single person is suspected of committing several criminal offenses or if two or more persons are suspected of committing one or more criminal offenses.

Part 2 of Article 37 of the Code of Criminal Procedure of Ukraine states that a prosecutor exercises the powers of a prosecutor in criminal proceedings from their commencement to their conclusion. Another prosecutor may exercise the powers of a prosecutor in the same criminal proceedings only in the cases provided for in Parts 4 and 5 of Article 36, Part 3 of Article 313, Part 2 of Article 341 of this Code, and Part 3 of this Article.

Pursuant to paragraph 7 of Article 217 of the Criminal Procedure Code of Ukraine, the date of commencement of the pretrial investigation in proceedings separated into a separate case is the date on which the investigation from which the separate materials were extracted was initiated.

In contrast, the commencement of criminal proceedings is automatically recorded in the Unified Register of Pretrial Investigations and assigned a criminal proceeding number; information regarding such proceedings is entered by the registrar into the Unified Register of Pretrial Investigations after they have been separated from another criminal proceeding.

Thus, in accordance with Section 2 of the Regulations on the Unified Register of Pre-trial Investigations: Procedure for Its Formation and Maintenance, approved by Order of the Prosecutor General dated June 30, 2020  No. 298, the recording of criminal offenses based on statements or reports received by a prosecutor or a pretrial investigation body, a preliminary inquiry body, or circumstances identified from other sources indicating the commission of a criminal offense, is carried out by the Registrar at the direction of the head of the prosecutor’s office, a pre-trial investigation body, or a preliminary inquiry body by entering into the Register the information specified in Part 5 of Article 214 of the Criminal Procedure Code of Ukraine.

The Register automatically records the date the information is entered and assigns a criminal proceeding number. The registration of a criminal offense (proceeding) takes effect upon confirmation of such information by the head of the prosecutor’s office, the pretrial investigation agency, or the preliminary inquiry agency.

Article 37 of the CPC of Ukraine provides that the prosecutor who will exercise the powers of a prosecutor in a specific criminal proceeding is designated by the head of the relevant prosecutorial authority after the commencement of the pretrial investigation.

Thus, the head of the relevant prosecutorial authority, after the commencement of the pretrial investigation—that is, on the day the investigation from which certain materials were separated began—must designate the prosecutor who will exercise the powers of a prosecutor in the specific criminal proceeding, that is, the proceeding to which a number and date will be automatically assigned after the information regarding the separated materials is entered into the Unified Register of Pretrial Investigations.

Under these circumstances, Part 1 of Article 25 of the Law of Ukraine “On the Prosecutor’s Office” provides that the prosecutor shall oversee compliance with the law by the agencies conducting operational-investigative activities, preliminary inquiries, and pretrial investigations, while exercising the rights and performing the duties provided for by the Law of Ukraine “On Operational-Investigative Activities” and the Criminal Procedure Code of Ukraine.

Written instructions issued by a prosecutor to agencies conducting operational-investigative activities, preliminary inquiries, and pretrial investigations, provided within the scope of his or her authority, are binding on these agencies and must be carried out immediately.

The issuance of orders by a prosecutor beyond the scope of his or her authority entails liability as provided by law.