Judges are refusing to open proceedings on complaints that the suspicion is unfounded

Following the amendments to the Criminal Procedure Code of Ukraine pursuant to Law of Ukraine No. 2147-VIII of October 3, 2017, which took effect on March 16, 2018, numerous disputes and disagreements have arisen regarding how useful and effective these changes will be. The opinions of legal practitioners are divided. At the same time, among the new provisions of the CPC, everyone—whether a judge, attorney, or prosecutor—finds both positive and negative changes. For this reason, we do not wish to draw hasty conclusions or criticize the changes; however, it is still necessary to analyze several pressing issues that most practicing lawyers are currently facing.

One of the significant changes is the addition of paragraph 10 to Part 1 of Article 303 of the CPC of Ukraine, which provides for the possibility of appealing a notice of suspicion. This innovation will significantly strengthen the adversarial nature of criminal proceedings, as the defense now has the opportunity to prove the groundlessness of the suspicion in court during the pretrial investigation stage. Previously, this issue gave rise to numerous disputes; although the court was required to verify the validity of the suspicion when selecting a preventive measure, in practice, the investigating judge was unable to refuse to impose a preventive measure on these grounds, as he had no authority to revoke the notice of suspicion. Now, having a notice of suspicion in hand, the defense, taking into account the unfounded nature of the suspicion, may apply to the investigating judge to have such suspicion revoked. At present, there are disagreements with the court’s opinion regarding the application of this new provision to notices of suspicion served prior to March 16, 2018. As practice has shown, investigating judges refuse to initiate proceedings on complaints filed under Article 303 of the Criminal Procedure Code of Ukraine on the grounds that the notice of suspicion was served before March 16, 2018—that is, before the amendments took effect. However, this court opinion is erroneous, and when investigative judges issue such decisions, they deny the defense the opportunity to substantiate its position on this matter. I would like to note that I categorically disagree with the court’s aforementioned opinion, since the provisions of the final provisions of Law No. 2147-VIII, which prohibit the retroactive application of amendments adopted to the CPC, do not comply with the provisions of Article 5 of the CPC of Ukraine and stipulate that the procedural law in force at the time an action is taken or a decision is made must be applied.

The application of paragraph 4 of Section 2 of the final provisions of Law No. 2147-VIII is also unfounded, as well as the legitimacy of the continued application of the CPC of Ukraine in the version in effect prior to March 16, 2018, which ceased to be relevant upon the entry into force of the amendments.

Furthermore, in such a situation, one can confidently rely on Part 6 of Article 9 of the CPC, according to which, in cases of ambiguous or conflicting regulations regarding criminal proceedings, the general principles of criminal proceedings take precedence, including, in particular, the principle of legality and the priority of the provisions of the CPC of Ukraine over other laws.

It should also be noted that Law No. 2147-VIII amended Articles 132, 184, and 234 of the CPC of Ukraine. These amendments provide that motions regarding the application of measures to ensure criminal proceedings, the conduct of a search, or the imposition of a preventive measure are considered by investigating judges of the local court, within whose territorial jurisdiction the pretrial investigation body is located (registered) as a legal entity. Thus, with the entry into force of the amendments to the CPC pursuant to Law No. 2147-VIII, a situation has arisen in which investigators from all investigative units of the Main Directorates of the National Police are required to submit motions regarding the application of measures to ensure criminal proceedings only to a single court located at the seat of the Main Directorate of the National Police in a particular region, which will result in an unjustified waste of time for investigators in obtaining such rulings and will significantly increase the workload on the investigating judges of the local court within whose territorial jurisdiction the relevant Main Directorate of the National Police is located (registered) as a legal entity. These changes have significantly complicated the work of pretrial investigation authorities in conducting prompt, thorough, and impartial investigations, and have also significantly increased the workload on the investigating judges of the local court, within whose territorial jurisdiction the relevant Main Department of the National Police is located (registered) as a legal entity. In turn, Draft Law No. 8151 of March 16, 2018, on Amendments to the Criminal Procedure Code of Ukraine Regarding the Clarification of Certain Provisions, resolves the aforementioned issues.

Given the foregoing, it is we—practicing legal professionals—who, through the practical application of the law, refine it to perfection; however, this is a monumental task that will benefit, in particular, our successors.