Abstract by Iryna Hlovyuk, Doctor of Law, Associate Professor, Attorney-at-Law, and Legal Counsel at Barristers LLP, for the International Scientific and Practical Conference “State Bureau of Investigations: The Experience of Its Formation” (June 21, 2019)

I.V. Glovuk,

Head of the Department of Criminal Procedure at the National University

“Odessa Law Academy,” Doctor of Law, Associate Professor

SOME ISSUES REGARDING THE JURISDICTION OF MOTIONS BY STATE BUREAU OF INVESTIGATIONS (DBR) INVESTIGATORS TO OBTAIN PERMISSION TO CONDUCT COVERT INVESTIGATIVE (INVESTIGATIVE) ACTIVITIES

Issues regarding the jurisdiction of investigative judges are becoming increasingly relevant in today’s reality, as evidenced by practical problems in applying these provisions of the Code of Criminal Procedure of Ukraine and the academic community’s ongoing attention to this issue [1]. This is due to the fact that legal uncertainty regarding jurisdiction in such cases results in a violation of the right to a fair trial. After all, given that in cases involving “criminal charges,” the protection afforded by Article 6 begins with the formal notification of a person of suspicion (Eckle v. Germany, paras. 73–75) or from practical measures, such as a search, when such a person first suffered significant harm as a result of the “charges” (Foti v. Italy, paras. 52–53) [2], then, accordingly, the provisions of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 8 of the Law of Ukraine “On the Judicial System and the Status of Judges” regarding a person’s right to a fair trial also apply to the consideration of applications, complaints, and motions by an investigating judge.

A separate category of motions filed by investigators of the State Bureau of Investigation (SBI) consists of motions for authorization to conduct covert investigative (surveillance) operations. As a general rule, the consideration of motions, which, pursuant to the provisions of this chapter, falls within the jurisdiction of an investigating judge, is carried out by the investigating judge of the relevant appellate court within whose territorial jurisdiction the pretrial investigation body is located. The consideration of motions for authorization to conduct covert investigative (search) operations involving judges, court employees, and law enforcement officials and/or on the premises of courts and law enforcement agencies—which, under the provisions of this chapter, falls within the jurisdiction of an investigating judge— may be conducted by an investigating judge of the relevant appellate court outside the territorial jurisdiction of the pretrial investigation body conducting the pretrial investigation. In such a case, the investigator or prosecutor shall submit motions requesting authorization to conduct covert investigative (search) activities to the investigating judge of the appellate court that is geographically closest to the appellate court within whose territorial jurisdiction the pretrial investigation is being conducted (Article 247 of the Code of Criminal Procedure of Ukraine). However, with regard to the activities of the State Bureau of Investigation (SBI), these provisions are applied in a specific manner, taking into account the territorial scope of the SBI’s regional offices.

One of the two most common criteria for determining jurisdiction is precisely the location of the pretrial investigation body.

Part 4 of Article 9 of the Law of Ukraine “On the State Bureau of Investigations” provides that, to ensure the fulfillment of the State Bureau of Investigations’ tasks, the following territorial offices shall be established: 1) a territorial office located in the city of Lviv, whose jurisdiction covers the Volyn, Zakarpattia, Ivano-Frankivsk, Lviv, and Ternopil regions; 2) a territorial office located in the city of Khmelnytskyi, covering the Vinnytsia, Zhytomyr, Rivne, Khmelnytskyi, and Chernivtsi regions; 3) a regional office located in Mykolaiv, covering Kirovohrad, Mykolaiv, and Odesa regions; 4) a regional office located in Melitopol, covering the Autonomous Republic of Crimea, Zaporizhzhia and Kherson Oblasts, and the city of Sevastopol; 5) a regional office located in Poltava, covering Dnipropetrovsk, Poltava, Sumy, and Kharkiv Oblasts; 6) a regional office located in Kramatorsk, whose jurisdiction covers the Donetsk and Luhansk regions; 7) a regional office located in Kyiv, whose jurisdiction covers the city of Kyiv, as well as the Kyiv, Cherkasy, and Chernihiv regions.

In our view, these provisions of the Law clearly indicate that it is this Law that determines the location of the respective territorial office.

The State Bureau of Investigation comprises investigative, operational, and other units. Accordingly, it is the location of the investigative unit that determines the jurisdiction over motions regarding the conduct of covert investigative (search) actions, since, as explained in a letter from the High Specialized Court of Ukraine for Civil and Criminal Cases  “On Certain Issues Concerning the Exercise of Judicial Oversight in Criminal Proceedings by an Investigating Judge of a Court of First Instance”—although this pertains to measures to ensure the conduct of criminal proceedings— the term “investigative body” refers to the investigative units of the National Police, security agencies, tax enforcement agencies, the State Bureau of Investigations, as well as the detective unit and the internal control unit of the National Anti-Corruption Bureau of Ukraine (NABU), rather than the law enforcement agency itself.

Thus, the motion should be filed with the investigative unit of the relevant territorial office of the State Bureau of Investigations.

Another aspect of the issue is that the consideration of motions for authorization to conduct covert investigative (search) activities regarding judges, court employees, and law enforcement officials, and/or on the premises of courts and law enforcement agencies, may be conducted by an investigating judge of the relevant appellate court outside the territorial jurisdiction of the pre-trial investigation agency conducting the pre-trial investigation. In such cases, the investigator or prosecutor submits motions for authorization to conduct covert investigative (search) operations to the investigating judge of the appellate court that is geographically closest to the appellate court within whose territorial jurisdiction the pretrial investigation is being conducted.

As O.I. Polyukhovych rightly notes, in establishing the rule on changing jurisdiction, the legislature uses the wording “may be conducted outside the territorial jurisdiction of the pretrial investigation body,” which indicates that the decision to change jurisdiction in this case falls within the discretionary powers of the authority reviewing the motion (i.e., the dispositive method of legal regulation applies). Therefore, when it comes to conducting non-structural investigative actions against judges, court employees, and law enforcement officials, and/or on the premises of courts and law enforcement agencies, a motion for authorization to conduct a non-confrontational investigative action may, at the prosecutor’s discretion, be filed either with the appellate court within the territorial jurisdiction of the pre-trial investigation body (if the prosecutor has no grounds to fear possible disclosure of information about the planned special investigative measures or obstruction in granting permission to conduct such measures due to the investigating judge’s personal or institutional interests), or to an appellate court outside the territorial jurisdiction of the pre-trial investigation body (provided that there is a threat of the aforementioned risks occurring)[3].

It should be noted that the territorial jurisdiction of the territorial offices of the State Bureau of Investigations is clearly regulated by Part 4 of Article 9 of the Law of Ukraine “On the State Bureau of Investigations” and covers several regions. Accordingly, the boundaries of the territorial jurisdiction of the relevant territorial office are those regions and cities within which the territorial office operates, as defined in Part 4 of Article 9 of the Law of Ukraine “On the State Bureau of Investigations,” and it covers several regions. In other words, it is broader than the concept of the “location of the territorial office.”

Accordingly, if it is necessary to consider motions for authorization to conduct covert investigative (search) activities regarding judges, court employees, and law enforcement officials and/or on the premises of courts and law enforcement agencies, the investigator or prosecutor must submit motions for authorization to conduct covert investigative (search) activities to the investigating judge of the appellate court geographically closest to the appellate court based on the location of the investigative unit of the relevant territorial office (outside the territorial jurisdiction of the department as defined in the relevant paragraph of Part 4 of Article 9 of the Law of Ukraine “On the State Bureau of Investigations”).

Thus, motions under Chapter 21 of the Criminal Procedure Code of Ukraine should be filed at the location of the investigative unit of the relevant territorial office of the State Bureau of Investigations. Motions under paragraphs 2 and 3 of Article 247 of the Criminal Procedure Code of Ukraine must be filed with the investigating judge of the appellate court geographically closest to the appellate court where the investigative unit of the relevant territorial office is located (outside the territorial jurisdiction of the department as defined in the relevant paragraph of Part 4 of Article 9 of the Law of Ukraine “On the State Bureau of Investigations”).

[1] See: Overchuk, S.V. Jurisdiction of Criminal Proceedings Before an Investigating Judge. Journal of the National University “Ostrog Academy.” “Law” Series. 2015. No. 2(12). URL: http://lj.oa.edu.ua/articles/2015/n2/15osvpss.pdf; Polukhovych, O. I. Judicial Oversight of Covert Investigative (Detective) Activities: Ph.D. thesis in Law: 12.00.09; Yaroslav Mudryi National Law University. – Kharkiv, 2017. – pp. 66–69; Glovuk, I. V., Zinkovskyi, I. P. Controversial Issues of Jurisdiction Over Motions Concerning Measures to Ensure Criminal Proceedings // Pretrial Investigation: Current Problems and Ways to Resolve Them: Proceedings of the Permanent Scientific and Practical Seminar (Kharkiv, Oct. 26, 2018) / Editorial Board: M. V. Chlenov (Editor-in-Chief), L. M. Lezhenina (Deputy Editor-in-Chief), O. V. Kosmin. – Kharkiv: Pravo, 2018. – Issue 10 (anniversary). – pp. 34–38; Ponomarenko, D. V., Pashkovsky, M. I. Features of Defense Tactics in Disputes Over Territorial Jurisdiction Regarding an Investigator’s Motion to Apply Measures to Secure Criminal Proceedings // Pretrial Investigation: Current Issues and Ways to Resolve Them: Proceedings of the Permanent Scientific and Practical Seminar (Kharkiv, Oct. 26, 2018) / Editorial Board: M.V. Chlenov (Editor-in-Chief), L.M. Lezhenina (Deputy Editor-in-Chief), O.V. Kosmin. – Kharkiv: Pravo, 2018. – Issue 10 (jubilee). – pp. 124–128

[2] Vitkauskas, D.; Dikov, G. Protection of the Right to a Fair Trial under the European Convention on Human Rights (2nd ed.). – Council of Europe, 2nd ed. (Ukrainian version), February 2018. – pp. 29–30

[3] Polyukhovych, O. I. Judicial Oversight of Covert Investigative (Detective) Activities: Ph.D. thesis in Law: 12.00.09; Yaroslav Mudryi National Law University. – Kharkiv, 2017. – pp. 67–68