Exceeding Jurisdiction or Resolving Conflicts: Everything You Need to Know About Decisions Made by the Court of Appeals on Appeals Against Rulings by the Investigating Judge

Part 3 of Article 407 of the Code of Criminal Procedure of Ukraine provides that, following consideration of appeals against rulings by an investigating judge, the appellate court has the right to: 1) leave the ruling unchanged; 2) set aside the ruling and issue a new ruling.

The appellate court shall leave the ruling unchanged if, after reviewing the arguments in the appeal, it concludes that they are unfounded and that the investigating judge’s ruling is lawful and well-reasoned.

The appellate court shall set aside the investigating judge’s ruling if it finds that the ruling is unlawful, unfounded, or lacks proper reasoning. In this case, the appellate court is required to issue a new ruling on the issues that were addressed in the investigating judge’s ruling it has set aside.

However, in practice, situations arise where it is impossible to issue either of the two aforementioned decisions, as a result of which appellate courts occasionally exceed their authority by making decisions not provided for in the Code of Criminal Procedure. The reason is that the statutory framework does not cover all possible situations brought before such courts.

Returning the case materials to the investigating judge for consideration on the merits when the appellate court has no authority to consider the complaint on the merits or to issue a ruling to initiate proceedings.
By a ruling of the investigating judge, the defense counsel’s complaint regarding the investigator’s inaction in connection with a violation of the procedure for considering a motion during the pretrial investigation was dismissed and returned to the petitioner as having been filed by a person who lacks the right to file a complaint, since the investigating judge had granted the investigator’s motion for recusal.

However, when deciding to schedule a court hearing on the complaint regarding the investigator’s inaction, the investigating judge noted in his ruling that the complaint was filed by the proper person and met the requirements of Articles 303–304 of the Code of Criminal Procedure.

Upon reviewing the complaint, the investigating judge reached the opposite conclusion, taking into account circumstances that did not exist at the time the complaint was filed. Furthermore, following the review of the complaint, the investigating judge decided to dismiss the complaint without consideration and return it to the complainant, a decision that is inconsistent with the requirements of Article 307 of the Code of Criminal Procedure of Ukraine, whereas the stage of assessing the complaint for compliance with the requirements of Articles 303–304 of the CPC of Ukraine had already taken place, as reflected in the investigating judge’s ruling dated September 7, 2015.

The panel of judges of the appellate court overturned the investigating judge’s ruling. However, having been deprived of the procedural authority to issue a judicial decision on the complaint without the investigating judge having considered its merits, the panel remanded the case to the court of first instance for consideration on the merits.

1. Another situation arises when the victim challenges the investigating judge’s decision to refuse to open proceedings, insisting that the decision against which he filed a complaint with the investigating judge is appealable. Upon reviewing the appeal against the investigating judge’s ruling, the appellate court found that the investigating judge had unjustifiably refused to open proceedings. Clearly, the appellate court must overturn the investigating judge’s decision. However, the appellate court cannot issue a new decision, as it lacks the authority to review on the merits the complaint that the victim filed with the investigating judge; doing so would amount to the appellate court usurping the investigating judge’s powers. In the case at hand, the appellate court also lacks the authority to issue a ruling opening proceedings based on the victim’s complaint, which he had filed with the investigating judge, since such a ruling is not provided for at all under the current Code of Criminal Procedure. The Odesa Regional Court of Appeal faced this issue and overturned the investigating judge’s ruling, returning the case materials to the investigating judge for consideration on the merits of the victim’s complaint regarding the inaction of the investigator and the prosecutor.
2. Ruling of the Kyiv City Court of Appeal dated September 17, 2013, which overturned the ruling of the investigating judge of the Pecherskyi District Court of Kyiv dated August 23, 2013, to return the complaint filed by I.G. Bukhov regarding the inaction of the Prosecutor General’s Office of Ukraine in failing to enter information into the Unified Register of Pre-trial Investigations, and to refer the case for a new trial to the court of first instance;
3. The ruling of the Kyiv City Court of Appeals dated July 29, 2013, which overturned the ruling of the investigating judge of the Pechersk District Court of Kyiv dated July 5, 2013, refusing to initiate proceedings on the complaint filed by LLC “P.R.S. & Company Law Firm” regarding the inaction of the Prosecutor General’s Office of Ukraine in failing to enter information into the Unified Register of Pre-trial Investigations, and the case was remanded for a new trial to the court of first instance;
- A decision was rendered on the merits of the appeal.
The Kyiv Court of Appeals, by its ruling dated September 19, 2013, overturned the ruling of the investigating judge of the Pechersk District Court of Kyiv dated August 23, 2013, to return the complaint filed by N.D. Kunchurova against the investigator’s decision refusing to recognize her as a victim, and ruled on the merits of the complaint (N.D. Kunchurova’s complaint was denied);
The Kyiv City Court of Appeals, by its ruling dated August 19, 2013, overturned the ruling of the investigating judge of the Pechersk District Court of Kyiv dated August 8, 2013, refusing to initiate proceedings on the complaint filed by a representative of PJSC “PROMOBLADNANNYA” against the investigator’s ruling denying the motion to provide an extract from the Unified Register of Pre-trial Investigations, and ruled on the merits of the complaint’s claims (the complaint was denied).
- A decision was made to amend the ruling of the investigating judge.

The investigating judge imposed a preventive measure in the form of pretrial detention on the suspect and, in accordance with Part 3 of Article 183 of the Code of Criminal Procedure, set the bail amount at eighty times the minimum wage (clause 2 of Part 5 of Article 182 of the Code of Criminal Procedure). The suspect appealed this ruling. During the appeal court’s review of the complaint, the suspect and his defense counsel insisted on reducing the amount of bail, citing the suspect’s difficult financial situation and the fact that he has minor children in his care. The appellate court concluded that there were grounds for reducing the amount of bail. Under the current Code of Criminal Procedure, the appellate court must set aside the investigating judge’s decision and issue its own decision, which will differ from the investigating judge’s ruling only in the reduced amount of bail. Scholar T.V. Lukashkina believes that in such cases, it would be appropriate to issue a decision amending the investigating judge’s ruling.

Decision to Dismiss the Appeal Proceedings.

Part 2 of Article 403 of the CPC of Ukraine states that if the appellant withdraws the appeal, the appellate court must issue a decision to terminate the appellate proceedings. We believe that this provision applies in cases where a ruling by the investigating judge is being appealed (in the absence of other appeals; and, if other appeals exist, provided that the other appellants do not object to the termination of the proceedings).

The lack of a uniform approach to applying the provisions of paragraph 2 of Part 3 of Article 407 of the Code of Criminal Procedure of Ukraine leads to inconsistent decisions by appellate courts following the review of appeals against rulings by an investigating judge.

Consequently, the list of decisions that an appellate court is authorized to render following the review of an appeal against an investigative judge’s ruling needs to be expanded. In particular, it should be specified in which cases the appellate court has the authority to independently rule on the merits of the claims, and in which cases it must remand the case for a new trial. It is also advisable to grant the appellate court the authority to issue a ruling solely regarding appeals against the amount of bail set when a preventive measure was imposed.

Accordingly, we propose that Part 3 of Article 407 of the Code of Criminal Procedure of Ukraine be amended as follows.

Based on the results of the appellate review of a complaint against a ruling by an investigating judge, the appellate court has the right to:

- leave the ruling unchanged;
- amend the ruling;
- set aside the ruling in whole or in part and issue a new ruling;
- set aside the ruling in whole or in part and order a new hearing in the court of first instance.