The Supreme Court granted the appeal filed by Denis Vasilyevich Ponomarenko, a partner at BARRISTERS, LLC

A representative who defends the rights and legitimate interests of the owner or possessor of property that has been seized by order of an investigating judge is entitled to appeal such an order.

This is stated in a ruling by a panel of judges of the First Judicial Chamber of the Cassation Criminal Court within the Supreme Court, which considered a cassation appeal filed by a lawyer on behalf of B. against the appellate court’s ruling to remand the appeal.

As noted in the ruling, as part of the pretrial investigation, an investigating judge of a local court issued a ruling to seize B.’s vehicle. His attorney appealed this ruling to the appellate court. The appellate court remanded the appeal, arguing that it had been filed by a person who lacked the right to do so.

However, the Supreme Court disagreed with this. The Supreme Court’s ruling states that, pursuant to paragraph 9 of Part 1 of Article 309 of the Code of Criminal Procedure of Ukraine, a ruling by an investigating judge to seize property is subject to appeal. At the same time, the Code does not establish a clear list of persons entitled to appeal this ruling, and paragraph 10 of Part 1 of Article 393 of the Code of Criminal Procedure of Ukraine states that other persons have the right to file an appeal in cases provided for by the Code of Criminal Procedure of Ukraine.

One of the participants in both criminal and judicial proceedings is a third party whose property is the subject of the seizure decision (paragraphs 25 and 26 of Part 1 of Article 3 of the Code of Criminal Procedure of Ukraine). Article 64-2 of the CPC of Ukraine defines the scope and procedural status of the aforementioned third party. At the same time, the last paragraph of Part 7 of Article 173 of the CPC of Ukraine provides that third parties have the right to legal counsel and the right to appeal a court decision regarding the seizure of property.

Under such circumstances, the owner of the property subject to seizure is a person whose rights, freedoms, and interests are affected by the court decision and, therefore, falls into the category of “other persons” who are entitled to file an appeal against the investigating judge’s decision.

Since, in providing professional legal assistance, an attorney defends the rights and legitimate interests of the owner of property that has been seized during a pretrial investigation, and the constitutional right to such assistance cannot be restricted, the appellate court’s conclusion that a representative of the owner or possessor of property, within the meaning of paragraph 10 of Part 1 of Article 393 of the Code of Criminal Procedure of Ukraine, is not a party entitled to appeal the ruling of the investigating judge is unfounded, as stated in the Supreme Court’s ruling.

Therefore, the Supreme Court quashed the appellate court’s ruling and ordered a new hearing in the appellate court.

In its ruling, the Cassation Criminal Court noted that attorney D.V. Ponomarenko was denied leave to appeal, and his appeal was returned to him pursuant to paragraph 2 of Part 3 of Article 399 of the Code of Criminal Procedure, since it was filed by a person who did not have the right to file an appeal. At the same time, the appellate court, citing Part 1 of Article 170 and Part 1 of Article 174 of the Code of Criminal Procedure, noted that a representative of the owner or possessor of property, within the meaning of paragraph 10 of Article 393 of the Code of Criminal Procedure, is not a party entitled to appeal a ruling by an investigating judge. However, the aforementioned decision of the appellate court is not based on the requirements of criminal procedural law. Pursuant to Article 24 of the Code of Criminal Procedure, everyone is guaranteed the right to appeal procedural decisions, actions, or omissions of the court, the investigating judge, the prosecutor, or the investigator in the manner prescribed by this Code. The right to have a judgment or court ruling concerning a person’s rights, freedoms, or interests reviewed by a higher court in accordance with the procedure provided for by this Code is guaranteed, regardless of whether such person participated in the court proceedings. Pursuant to paragraph 9 of Part 1 of Article 309 of the Code of Criminal Procedure, a ruling by an investigating judge on the seizure of property is subject to appeal. However, the Code of Criminal Procedure does not establish a clear list of persons entitled to appeal this ruling, and paragraph 10 of Article 393 of the CPC states that other persons have the right to file an appeal in cases provided for by the CPC. One of the participants in both criminal and judicial proceedings is a third party whose property is the subject of the seizure decision (paragraphs 25 and 26 of Part 1 of Article 3 of the CPC). Article 642 of the CPC defines the scope and procedural status of a third party whose property is subject to seizure. At the same time, the last paragraph of Part 7 of Article 173 of the CPC provides that third parties have the right to legal counsel and the right to appeal a court decision regarding the seizure of property. Under these circumstances, the owner of the property subject to seizure is a person whose rights, freedoms, and interests are affected by the court decision and, therefore, falls into the category of “other persons” who are entitled to file an appeal against the investigating judge’s decision. Since, by providing PERSON_2 with professional legal assistance, attorney D.V. Ponomarenko is defending the rights and legitimate interests of the owner of the property that has been seized during the pretrial investigation, and since the constitutional right to such assistance cannot be restricted, the appellate court’s conclusion that a representative of the owner or possessor of the property, as defined in para. 10 of Article 393 of the Code of Criminal Procedure is not a party to the appeal against the investigating judge’s ruling, is unfounded. Furthermore, in this case, the Supreme Court of Ukraine set forth its legal position in a ruling dated September 14, 2017, in which it found that the court of cassation had incorrectly applied paragraph 9 of Part 1 of Article 309 and paragraph 10 of Part 1 of Article 393 of the Code of Criminal Procedure in connection with the restriction of the right of the property owner—as a person whose rights, freedoms, and interests are affected by the investigating judge’s decision to impose a seizure—to appeal that decision and to engage defense counsel for that purpose. Thus, by deciding to return to attorney D.V. Ponomarenko, acting on behalf of PERSON_2, the appeal against the ruling of the investigating judge of the Zavodskyi District Court of the city of Mykolaiv dated November 18, 2016, the appellate court committed a violation of the requirements of criminal procedural law, which is substantial, as they prevented the court from rendering a lawful and well-reasoned judicial decision, which, in accordance with the requirements of paragraph 1 of Part 1 of Article 438 of the Code of Criminal Procedure, constitutes grounds for setting aside such a judicial decision and ordering a new hearing in the appellate court.