Supreme Court of Ukraine: A refusal to initiate proceedings to review an investigating judge’s decision to freeze the property of a person—represented by an attorney—who is not a suspect or defendant in criminal proceedings constitutes a violation of the right to legal assistance (No. 5-162ks(15)17 dated September 14, 2017)

Summary of the court ruling: By order of the investigating judge, property belonging to individuals who are neither suspects nor defendants in the criminal proceedings was seized.

The attorney representing the interests of these individuals filed an appeal against the aforementioned ruling. However, the appellate court refused to open appellate proceedings on the appeal and returned it to the appellant on the grounds that the attorney for the individuals, who are not suspects and/or defendants and whose property was seized pursuant to the investigating judge’s ruling is not a party to the appeal.

It should be noted that the High Specialized Court of Ukraine concurred with the appellate court’s decision.

In contrast, the Supreme Court of Ukraine overturned the decision of the court of cassation and noted the following.

Under Article 174 of the Code of Criminal Procedure of Ukraine, it is possible to file a motion with the investigating judge to lift the seizure of property by suspects, accused persons, their defense counsel, legal representative, another owner or possessor of the property, or a representative of the legal entity against which the proceedings are being conducted, who were not present during the consideration of the issue of property seizure.

At the same time, pursuant to Articles 309 and 310 of the CPC of Ukraine, such decisions by investigating judges to seize property may be appealed.

Furthermore, the established case law of the European Court of Human Rights indicates that restrictions imposed by the state on a person’s access to a national court must not narrow or diminish the remaining opportunities for that person to access the court in such a way or to such an extent that the very essence of the right would be nullified. (Judgments of the European Court of Human Rights in “Natalia Mykhailenko v. Ukraine” dated May 30, 2013, and “Shvidka v. Ukraine” dated October 30, 2014).

Pursuant to paragraph 9 of Part 1 of Article 309 of the Code of Criminal Procedure, a ruling by an investigating judge to seize 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.

Therefore, the right to appeal ensures the right to appeal to a higher court not only for the suspect or defendant, but the category of “other persons” as defined in paragraph 10 of Article 393 of the CPC also includes those participants in criminal proceedings whose rights, freedoms, or interests are affected by the court decision.  

Thus, by providing professional legal assistance to the owners of property subject to seizure, the attorney defends the rights and legitimate interests of the owner of the property seized during the pretrial investigation, and consequently, their constitutional right to such assistance is significantly restricted. Defending these rights and legitimate interests requires the representing attorney to take certain procedural actions, including filing appeals.

DECISION

IN THE NAME OF UKRAINE

September 14, 2017                                                                                                                                               Kyiv

The Judicial Chamber for Criminal Cases of the Supreme Court of Ukraine, composed of:

Presiding Judge and Reporting Judge S.M. Vus,

Judges: E.I. Kovtyuk, M.E. Korotkevych, B.M. Poshva, V.F. Shkolyarov,

with secretaries: O.M. Khalyavka, N.V. Vinichuk,

with the participation of: M.V. Kurapov, prosecutor of the Department for the Maintenance of Public Prosecution in Court of the Prosecutor General’s Office of Ukraine,

Attorney D.V. Ponomarenko,

having considered, in an open court session, the case based on the motion filed by attorney D.V., acting on behalf of PERSON_1, regarding the review of the ruling of the High Specialized Court of Ukraine for Civil and Criminal Cases dated March 20, 2017, in Case No. 5-1407sk17,

h a s d e c i d e d:

By a ruling of the investigating judge of the Zavodskyi District Court of Mykolaiv dated November 18, 2016, the motion filed by the head of the Investigative Department of the Zavodskyi Police Division of the Main Directorate of the National Police in Mykolaiv Oblast was granted, and within the framework of criminal proceedings under No. 42016151030000070, a “LEXUS” vehicle, model “RX 350,” with license plate number INFORMATION_1, was seized.

By a ruling of a judge of the Mykolaiv Regional Court of Appeals dated February 21, 2017, the appeal filed by attorney D.V., filed on behalf of PERSON_1, against the aforementioned court decision was refused, and the appeal, along with all attachments, was returned to the appellant.

By a ruling of the High Specialized Court of Ukraine for Civil and Criminal Cases dated March 20, 2017, pursuant to paragraph 2 of part two of Article 428 of the Criminal Procedure Code of Ukraine (hereinafter—the CPC), the court refused to initiate cassation proceedings on the cassation appeal filed by attorney D.V. Ponomarenko on behalf of PERSON_1 against the aforementioned ruling of the appellate court.

Attorney D.V., on behalf of PERSON_1, in which he asserts that the cassation court applied the same provisions—set forth in Part 4 of Article 20, Article 642, Part 7 of Article 173, Paragraph 10 of Part 1 of Article 393, and Article 428 of the Code of Criminal Procedure, regarding the right to appeal, through the appellate process, a decision by an investigating judge to seize property—either personally by the owner, who has not acquired the status of a suspect or defendant in criminal proceedings, or through a representative attorney.

To substantiate the inconsistent application of the aforementioned legal provisions, a copy of the ruling of the High Specialized Court of Ukraine for Civil and Criminal Cases dated April 12, 2016, has been attached to the petition, which overturned the appellate court’s ruling and ordered a new hearing in that court, since the refusal to initiate appellate proceedings against the investigating judge’s decision to seize property—on the grounds that the attorney’s status as the property owner’s representative was not sufficient to warrant an appeal, who is not a suspect or defendant in the criminal proceedings, was recognized as a violation of the constitutional right to legal assistance. In particular, it was noted that the right to freely choose a defense counsel, guaranteed by Article 59 of the Constitution of Ukraine, is universal in nature and applies not only to a suspect, the accused, or the defendant, but also to other individuals who are guaranteed the right to freely choose a defense attorney to protect their rights and legitimate interests arising, among other things, from legal relationships other than criminal ones. Therefore, despite the fact that the owner of the property does not have the status of a suspect or defendant, the investigating judge’s decision to seize property temporarily seized during a search restricts their rights and entitles them to defend their rights and legitimate interests both personally and by entering into an agreement with an attorney to take certain procedural actions, including appealing court decisions.

In the motion, the attorney requests that the ruling of the High Specialized Court of Ukraine for Civil and Criminal Cases dated March 20, 2017, be set aside and that the case be remanded for a new hearing to the court of cassation.

After hearing the reporting judge and attorney D.V. Ponomarenko, who supported the petition and requested that it be granted, the prosecutor, who objected to granting the petition, having reviewed the materials of the criminal proceedings and the materials attached to the petitions, having discussed the arguments set forth therein, and having taken into account the opinion of a member of the Scientific and Advisory Council at the Supreme Court of Ukraine, the Judicial Chamber for Criminal Cases of the Supreme Court of Ukraine (hereinafter—the Court) has reached the following conclusion.

1. In accordance with the provisions of paragraph 2 of Article 445 of the Code of Criminal Procedure, this ground for review of judicial decisions by the Supreme Court of Ukraine involves establishing that the court of cassation has applied the same legal provision inconsistently, as provided for in the Code of Criminal Procedure, which led to the adoption of judicial decisions differing in substance.

A difference (inconsistency) in the application of the same legal provision, provided for in the CPC, which led to the adoption of judicial decisions differing in content, is established by comparing the legal conclusions regarding such application of the law in the contested judicial decision and the judicial decision provided for comparison.

As can be seen from the materials of the criminal proceedings in which the contested ruling of the Court of Cassation No. 5-1407sk17 of March 20, 2017, regarding PERSON_1 was issued, by rulings of the investigating judge of the Zavodskyi District Court of Mykolaiv dated November 18, 2016, upon a motion by PERSON_2, the head of the Investigative Department of the Zavodskyi Police Division of the Main Directorate of the National Police in Mykolaiv Oblast, as part of the criminal proceedings, a seizure was imposed on the property— a “Lexus” automobile seized during a search, as well as a residential property—was seized to ensure its preservation and for the purpose of special confiscation. The aforementioned property belongs to PERSON_1 and PERSON_3 under the right of joint ownership.

The aforementioned criminal proceedings have been entered into the Unified Register of Pretrial Investigations regarding the conduct of gambling operations by unidentified individuals. Neither PERSON_1 nor PERSON_3 were notified of the consideration of the relevant motions, nor were they present during their consideration.

Subsequently, the property owners filed three appeals with the appellate court, retaining the services of attorney D.V. Ponomarenko.

By rulings of the Mykolaiv Regional Court of Appeal dated February 21, 2017, Attorney D. V. from accepting the relevant appeals for consideration on the grounds that the appeal was filed by a person who did not have the right to appeal, citing Part 1 of Article 170 and Part 1 of Article 174 of the Code of Criminal Procedure.

By a ruling of the High Specialized Court of Ukraine for Civil and Criminal Cases No. 5-1407sk17 dated March 20, 2017, the court refused to initiate cassation proceedings on the cassation appeal (one of three) filed by attorney D.V. Ponomarenko on behalf of PERSON_1.

The court of cassation agreed with the conclusions of the appellate court that the representative is not a person entitled to file an appeal against the ruling of the investigating judge, issued following the consideration of a motion to seize property, citing paragraph 10 of Part 1 of Article 393 and Part 1 of Article 174 of the Code of Criminal Procedure.

However, in its rulings dated March 20, 2017, No. 5-1408sk17, and dated March 20, 2017, No. 5-1406sk17, regarding two other cassation appeals filed by D.V. Ponomarenko against the corresponding rulings of the Mykolaiv Regional Court of Appeal dated February 21, 2017, cassation proceedings were initiated. In this case, the court of cassation noted that the cassation appeal was filed by the proper party; based on its content and the attached copy of the ruling, there are grounds for opening cassation proceedings, and, accordingly, there are no grounds for returning it or refusing to open proceedings.

This indicates that, in refusing to open cassation proceedings, the court of cassation concluded that the appellate court had correctly applied paragraph 10 of Article 393 and the first part of Article 174 of the Code of Criminal Procedure.

2. At the same time, the Court notes that Article 393(10) and Article 174(1) of the Code of Criminal Procedure provide for various means of judicial protection of a person’s restricted rights and legitimate interests in connection with the application of measures to ensure criminal proceedings.

In particular, Article 174 of the Code of Criminal Procedure provides for the possibility of filing a motion with the investigating judge to lift the seizure of property by a suspect, defendant, their defense counsel, legal representative, another owner or possessor of the property, or a representative of the legal entity against which the proceedings are being conducted—who were not present during the consideration of the issue of property seizure.

Another way to protect the property rights of individuals whose property is subject to seizure is to file an appeal against the investigating judge’s ruling on the seizure of property pursuant to paragraph 9 of part one of Article 309 and Article 310 of the CPC.

Taking into account the above-mentioned materials of the criminal proceedings regarding the seizure of the property of the spouses PERSON_1 and PERSON_3, it is evident that their representative—Attorney D.V. Ponomarenko—was defending the property rights guaranteed by Articles 309 and 393 of the Code of Criminal Procedure.

Under these circumstances, the Court must analyze whether the inconsistent application of specifically paragraph 9 of Article 309 and paragraph 10 of Article 393 of the Code of Criminal Procedure is the result of an inaccurate understanding (interpretation), which automatically constitutes a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, given the obstacles to the right of access to justice.

3. The Court notes that international standards in the field of judicial proceedings (the Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, Universal Declaration of Human Rights) consistently affirm that the right to access to justice and a fair trial must not be disregarded, and the established case law of the European Court of Human Rights emphasizes that restrictions imposed by the state on an individual’s access to a national court must not narrow or diminish the individual’s remaining opportunities to access the court in such a way or to such an extent that the very essence of the right is undermined. (Judgments of the European Court of Human Rights in “Natalia Mykhailenko v. Ukraine” dated May 30, 2013, and “Shvidka v. Ukraine” dated October 30, 2014).

At the national level of judicial practice, these provisions are reflected in the rulings of the Supreme Court of Ukraine No. 6-156цс13 dated February 24, 2014, and No. 5-7кс15 dated April 27, 2015.

4. The court notes that access to justice in the domestic legal system is a constitutional principle ensuring the right to appeal a court decision on appeal or in cassation, which guarantees the right to file a complaint with the court in appeal or cassation proceedings, a right that must be exercised, except where such appeals are prohibited by law.

Furthermore, pursuant to paragraph 8 of part three of Article 129 of the Constitution of Ukraine, one of the fundamental principles of judicial proceedings is ensuring the right to an appellate review of a case and, in cases specified by law, to a cassation appeal of court decisions.

5. 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.

Pursuant to paragraphs 25 and 26 of Article 3 of 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.

Article 642 of the CPC defines the scope and procedural status of a third party whose property is subject to seizure.

The last paragraph of Part 7 of Article 173 of the CPC provides that, in addition to the suspect and the defendant, third parties also have the right to legal counsel and the right to appeal a court decision regarding the seizure of property.

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.

6. The foregoing convinces the Court that, regardless of the legislative language used (“a third party whose property is subject to seizure,” “anyone”), the right to appeal, as a constitutionally guaranteed principle of judicial proceedings, ensures the right to appeal to a higher court not only for the suspect or defendant, but also the category of “other persons” within the meaning of Article 393(10) of the Code of Criminal Procedure, which encompasses those participants in criminal proceedings whose rights, freedoms, or interests are affected by the court decision.

Additionally, regarding the meaning of the concept of a person whose rights, freedoms, and interests are affected by a judicial decision, one should take into account the legal conclusion set forth in Resolution No. 5-347ks15 of the Supreme Court of Ukraine dated March 3, 2016, which states that provided a court decision concerns the rights, freedoms, and interests of a person, that person has the right to appeal the decision to a higher court regardless of their participation in the court proceedings.

Under these circumstances, it is evident that 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 ruling.

7. Furthermore, with regard to the case at hand, it is necessary to clarify the issue of the legal basis for the right to appeal an investigating judge’s ruling on the seizure of property not only by the property owner personally but also by his or her representative—a lawyer.

In this regard, the court of cassation, in the contested decision, concurred with the appellate court’s conclusion that defense in criminal proceedings by a licensed attorney may be provided only to a person with the status of a suspect or defendant, which essentially constitutes a restriction of PERSON_1’s constitutional rights and freedoms.

8. At the same time, the performance of the representative function by a lawyer in court within the framework of criminal proceedings is part of the right to legal assistance guaranteed by the Constitution of Ukraine.

As noted by the Constitutional Court of Ukraine in its decision No. 23-rp/2009 of September 30, 2009, in the case concerning the constitutional appeal filed by citizen Igor Volodymyrovych Golovan regarding the official interpretation of the provisions of Article 59 of the Constitution of Ukraine (the “Right to Legal Assistance” case), this right is one of the constitutional, inalienable human rights and is universal in nature. In the context of the first part of this article—“everyone has the right to legal aid”—the term “everyone” encompasses all persons without exception—citizens of Ukraine, foreigners, and stateless persons who are present on the territory of Ukraine.

Legal aid is multifaceted, varying in content, scope, and forms, and may include consultations, explanations, the drafting of lawsuits and petitions, certificates, applications, complaints, representation—particularly in courts and other state bodies—defense against criminal charges, and so on.

Furthermore, the exercise of the right to legal aid by any individual may not depend on the person’s status or the nature of their legal relationships with other legal entities. The Constitutional Court of Ukraine expressed its legal position on this matter in Decision No. 13-rp/2000 of November 16, 2000, in the case concerning the right to freely choose a defense attorney, where the fifth paragraph of section 5 of the reasoning states that, by enshrining the right of any individual to legal assistance, the constitutional provision “everyone is free to choose a defense counsel to protect their rights” (Part 1 of Article 59 of the Constitution of Ukraine) is, by its very nature, general in scope and applies not only to a suspect, the accused, or the defendant, but also to other individuals who are guaranteed the right to freely choose a defense counsel to protect their rights and lawful interests arising from civil, labor, family, administrative, and other legal relationships.

Thus, the Constitution of Ukraine refers to the protection of rights, freedoms, and legitimate interests as a universal representative activity, regardless of the sphere of legal relations, and guarantees professional legal assistance, the free choice of a defender of one’s rights, and the right to retain a lawyer not only in criminal proceedings.

9. Guaranteeing everyone the right to legal assistance, in the context of Article 3, Part 2, and Article 59 of the Constitution of Ukraine, imposes corresponding obligations on the state to ensure that individuals receive legal assistance of an adequate standard. Such obligations necessitate the establishment in the laws of Ukraine and other legal acts of the procedure, conditions, and methods for providing this assistance; furthermore, the absence of provisions aimed at implementing this right must not lead to a restriction or narrowing of the content and scope of every individual’s right to legal assistance.

The relevant sector-specific and criminal procedural provisions regarding the implementation of constitutional guarantees of the right to legal assistance in the context of the case at hand are as follows.

Pursuant to Part 4 of Article 642 of the Code of Criminal Procedure, a person who is entitled to act as a defense counsel in criminal proceedings may serve as a representative of a third party whose property is subject to a seizure order.

And in accordance with the provisions of Part 4 of Article 20 of the Code of Criminal Procedure, the participation in criminal proceedings of a representative of a third party whose property is subject to seizure does not restrict that person’s procedural rights.

Thus, by providing PERSON_1 with professional legal assistance, attorney D.V. Ponomarenko is defending the rights and legitimate interests of the owner of the property that was seized during the pretrial investigation, and consequently, his constitutional right to such assistance is significantly restricted. Defending the rights and legitimate interests of PERSON_1 requires the attorney-representative to take certain procedural actions. When deciding whether a lawyer may, in the interests of his client, appeal the investigating judge’s ruling on the seizure of property, it seems appropriate to take into account the legislature’s general approach to regulating the procedural status of defense counsel and representatives of other participants in criminal proceedings, which consists in granting the attorney the procedural rights of the person whose interests he or she represents.

10. This allows us to agree with the statements of the panel of judges of the High Specialized Court for Civil and Criminal Cases, as set forth in the ruling of April 12, 2016, which was submitted by the petitioner to substantiate the inconsistent application of the provisions of criminal procedural law, leading to the adoption of judicial decisions differing in content. In this ruling, the Court of Cassation, based on a systematic analysis of Articles 170, 173, and 174 of the Code of Criminal Procedure and the types of legal practice defined in Article 19 of Law of Ukraine No. 5076 of July 5, 2012,-VI “On the Bar and the Practice of Law,” that attorney G.V. Piddubna, by providing legal assistance to PERSON_8, is in fact defending the rights and legitimate interests of a third party whose property has been seized. Although PERSON_8 has not been designated as a suspect, the investigating judge’s decision to seize the property temporarily seized during a search of her premises restricts her rights and entitles her to defend her rights and legitimate interests both personally as well as (based on the constitutional principle) by entering into an agreement with an attorney who has the right, in the client’s interest, to take certain procedural actions, including challenging court decisions concerning the client’s rights and legitimate interests.

Consequently, the contrary legal conclusion in the contested decision of the court of cassation—that a person who does not have the status of a suspect or defendant cannot retain a lawyer in criminal proceedings— is evidence of the inconsistent application of the cited provisions of the Code of Criminal Procedure and a restriction of PERSON_1’s right to legal assistance.

11. Compliance with the constitutional principles of the right to access to justice and the right to legal assistance is a guarantee of a fair trial, and their disregard means that the court decision was rendered without complying with the provisions of Article 370 of the Code of Criminal Procedure regarding the legality and soundness of the court decision, which constitutes a material violation of the requirements of criminal procedural law and grounds for its reversal.

Therefore, in this case, the Court finds that the court of cassation incorrectly applied the cited provisions of the Code of Criminal Procedure by restricting 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 file an appeal against it and to engage defense counsel for that purpose; consequently, and in accordance with paragraph 1 of Part 1 of Article 438 and Part 1 of Article 412 of this Code, the ruling of the court of cassation must be set aside, and the case must be remanded to the court of cassation for consideration, since no review on the merits took place in these proceedings due to the refusal to initiate cassation proceedings.

Pursuant to Articles 453, 454, and 455 of the Criminal Procedure Code of Ukraine, the Judicial Chamber for Criminal Cases of the Supreme Court of Ukraine

 has r u l e d:

To grant the motion filed by attorney D.V. Ponomarenko on behalf of PERSON_1.

To set aside the ruling of the High Specialized Court of Ukraine for Civil and Criminal Cases dated March 20, 2017, in Case No. 5-1407sk17, refusing to initiate cassation proceedings on the cassation appeal filed by attorney D.V. Ponomarenko on behalf of PERSON_1 against the ruling of the Mykolaiv Regional Court of Appeal dated February 21, 2017, is hereby set aside, and the case shall be referred to the court of cassation for consideration.

This ruling is final and may not be appealed, except on the grounds provided for in paragraph 4 of part one of Article 445 of the Criminal Procedure Code of Ukraine.

The Judges