RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of June 4, 2010 No. 6

About some questions which arise during consideration by courts of Ukraine of claims to resolutions of bodies of inquiry, the investigator, the prosecutor about initiation of legal proceedings

The law of Ukraine of December 14, 2006 N 462-V "About modification of the Code of penal procedure of Ukraine concerning appeal of the resolution on initiation of legal proceedings" the Code of penal procedure of Ukraine, (further - the Code of Criminal Procedure) is added with Articles 236-7 and 236-8 concerning procedure for appeal in court of the resolution on initiation of legal proceedings, consideration by court of claims to the specified resolutions and changes are made to articles 349 and 382 Codes of Criminal Procedure concerning procedure for appeal appeal of such judgments.

The solution of the Constitutional Court of Ukraine of June 30, 2009 of N 16-rp/2009 on case on the constitutional representation of the Supreme Court of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of parts seven, the ninth, Item 2 parts of the sixteenth article 236-8 Code of Criminal Procedure (further - the Solution of KSU) are acknowledged such which do not answer the Constitution of Ukraine (are unconstitutional), separate provisions of parts seven, the ninth, Item 3 parts twelve, Item 2 parts of the sixteenth article 236-8 Code of Criminal Procedure.

For the purpose of identical and correct application of provisions of the criminal procedure legislation which concerns procedure for consideration by courts of claims to resolutions of bodies of inquiry of the investigator, the prosecutor about initiation of legal proceedings, the Plenum of the Supreme Court of Ukraine DECIDES:

1. Draw the attention of courts that those provisions of part seven, the ninth, Item 3 parts twelve, Item 2 parts of the sixteenth article 236-8 Code of Criminal Procedure which are acknowledged such which do not answer the Constitution of Ukraine (are unconstitutional), voided from day of decision making of KSU, i.e. since June 30, 2009.

With respect thereto courts by consideration of claims to resolutions on vozbuzhdenoiya of criminal case shall consider:

- failure to provide without valid excuse in the time established by the judge in court of materials based on which the decision on initiation of proceedings was made cannot be the basis for cancellation of the resolution on initiation of proceedings;

- participation of the prosecutor in judicial review of the claim to the resolution on initiation of legal proceedings is obligatory;

- in case of cancellation of the resolution on initiation of legal proceedings the judge has no right to decide the decision on refusal in initiation of proceedings.

2. At pre-judicial stages of criminal procedure courts shall accept claims to resolutions on initiation of legal proceedings in the production: from the face, concerning which it was brought criminal case, his defender or the legal representative; person whose interests concerns the criminal case brought upon crime execution, his defender or the legal representative with sufficient reasons for violation of the rights and legitimate interests of the corresponding person.

Resolving issue of whether the criminal case brought upon crime execution concerns interests of person, the judge in each case shall find out in what such violation of interests consisted both what legitimate rights and the protected interests of person were violated. Having determined that reasons for violation of the rights and legitimate interests of person are insufficient, the judge issues the motivated decree on refusal in opening of production on consideration of the claim (part three of article 236-7 Code of Criminal Procedure). This resolution is not subject to appeal as according to part three of article 236-7 Code of Criminal Procedure such refusal does not deprive of the right repeatedly to take a legal action.

On content of part two of article 236-7 Code of Criminal Procedure, in case of appeal in court of the resolution on initiation of legal proceedings of rather particular person the judge has no right to refuse opening of production in connection with insufficient reasons for the claim.

3. Claims to resolutions on initiation of legal proceedings according to part one of article 236-7 Code of Criminal Procedure go to local court in the location of body or work of the official which issued the decree, i.e. cognizance of cases of this category is determined, proceeding from the territorial location of body or work of the official who brought criminal case.

The location of body or work of the official should be considered legal address of such body or work of the official.

4. According to requirements of part four of article 236-7 Code of Criminal Procedure the court accepts the claim to the resolution on initiation of legal proceedings in consideration during the whole time of stay of case in production of body of inquiry, the investigator, the prosecutor until the termination of pretrial investigation. The moment of the termination of pretrial investigation should be considered creation of the protocol on the announcement to the person accused about end of investigation and presentations of case papers to it (part four of article 218 Code of Criminal Procedure).

The claim to the resolution on initiation of legal proceedings which arrived in court after creation of the protocol on the announcement to the person accused about end of investigation and presentations of case papers to it is transferred by the motivated judge's ruling to the official or body in which production there is case, for its consideration according to the procedure, provided by articles 110, of 234 and 236 Codes of Criminal Procedure.

If it is determined that the complaint is made not by the authorized person, the judge shall refuse its acceptance.

5. According to the existing procedural legislation (part two of article 98 Code of Criminal Procedure) if at the time of initiation of legal proceedings it is determined that person who committed crime proceedings shall be initiated concerning this person. Courts should take into account that decision making about initiation of legal proceedings upon crime execution or rather particular person is within the competence of persons specified in part one of article 98 Code of Criminal Procedure. With respect thereto the court has no right to repeal the resolution on initiation of legal proceedings for those reasons that proceedings are initiated upon crime execution, but not rather particular person.

It is necessary to recognize correct practice of those courts which accept in production and consider at pre-judicial stages of process of the claim to resolutions on initiation of legal proceedings upon crime execution if materials of verification of the statement or message on crime contain data which confirm participation in crime of the particular person (for example when in motivation part of the specified resolution the position or surname of person is specified as it which is suspected of crime execution or person whose interests the brought criminal case concerns is visible).

6. The claim to the resolution on initiation of legal proceedings is considered by the judge solely not later than five days from day of receipt of this claim in court.

About opening of production according to the claim to the resolution on initiation of proceedings the judge within a day from day of receipt of the claim in court issues the decree which copy is sent: to person who made the complaint, to his defender or the legal representative; to body which brought criminal case or in production of which it is; to the prosecutor; to the victim or person according to whose statement criminal case was brought. In the resolution on opening of production time and the place of consideration of the claim, the list of persons which appearance in judicial session is obligatory, actions which the parties need to make for ensuring consideration of the claim, and provision term in court of materials based on which the decision on initiation of proceedings was made are surely specified.

The judge refuses opening production according to the claim to the resolution on initiation of proceedings if the claim to this resolution from the same person and for the same reasons was considered by court in essence earlier.

In the presence of the bases to consider that damage can be caused by the investigative actions performed on case to constitutional rights and interests of certain person, the judge when opening production according to the claim according to requirements of part four of Article 236-8, of item 4 of part one of article 206 Code of Criminal Procedure has the right to make the decision on stop of investigative actions for the period of consideration of the claim. At the same time the judge shall approach adoption of such decision deliberately, meaning that it can lead to substantial negative effects, in particular, to loss of proofs.

Proceeding from provisions of part five of article 236-8 Code of Criminal Procedure the judge's ruling on opening of production according to the claim to the resolution on initiation of legal proceedings is not subject to appeal.

7. Taking into account requirements of article 121 Code of Criminal Procedure concerning inadmissibility of disclosure of data of pretrial investigation the judge has no right to demand from body of inquiry, the investigator or the prosecutor in whose production there is case, any other materials, except based on what the decision on initiation of proceedings was made.

In case of failure to provide without valid excuse in the time established by the judge in court of materials based on which the decision on initiation of proceedings was made the judge postpones consideration of the claim.

As according to requirements of part nine of article 236-8 Code of Criminal Procedure obligation to prove legitimacy of initiation of proceedings it is assigned to the prosecutor, its absence in judicial session is also the basis for adjournment of consideration of the claim.

In case of failure to provide without valid excuse in determined by the judge the term of materials based on which the decision on initiation of proceedings, absences in judicial session of the prosecutor the judge, in the presence to that the bases was made, shall resolve issue concerning pronouncement of separate resolutions according to the procedure, the stipulated in Article 23-2 Codes of Criminal Procedure.

Draw the attention of courts that by consideration of the claim the judge shall study the inquiries provided by body, by the investigator or the prosecutor in whose production there is case, materials based on which the decision on its excitement was made, and in judicial session to research these materials and to hear explanations of persons which were, namely: person who made the complaint, his defender or the legal representative, the victim or person according to whose statement proceedings were initiated, - and opinion of the prosecutor concerning legitimacy of initiation of proceedings.

In case of need the judge can hear explanations of person who issued the decree on initiation of proceedings.

During consideration of the claim the protocol of judicial session is taken.

8. Considering the claim to the resolution on initiation of legal proceedings, the judge shall check: and whether the occasions provided by part one of article 94 Code of Criminal Procedure were available for the period of initiation of proceedings; whether had person who initiated proceedings, there are enough data which specified legality of sources of receipt of these data availability of essential elements of offense (part two of article 94 Code of Criminal Procedure); or the competent person made the decision on initiation of legal proceedings and whether the procedure (article 98 Code of Criminal Procedure) established for this purpose was observed by it.

Courts should mean that in part one of article 94 Code of Criminal Procedure the exhaustive list of reasons for initiation of legal proceedings is specified. As for statements and messages on crime, they shall be stated in writing or orally and brought to the attention of law enforcement agencies with observance of requirements of article 95 Code of Criminal Procedure.

The basis for initiation of legal proceedings according to part two of article 94 Code of Criminal Procedure are sufficient data, on condition of legality of sources of their obtaining which specify availability of essential elements of offense and confirm reality of specific event of crime on the basis of which after initiation of proceedings objective signs of deeds or the prepared crime are established.

Also the judge, except specified, shall find out availability of circumstances which exclude criminal proceeding, that is to establish whether there were at the time of initiation of legal proceedings no such circumstances for whom it could not be initiated.

The court has no right to consider and previously to resolve those issues which are resolved by court by consideration of criminal case in essence. Assessment of proofs which shall be performed by court during consideration of criminal case in essence at stage of consideration of the claim to the resolution on initiation of legal proceedings, is inadmissible.

9. By results of consideration of the claim, depending on whether in case of initiation of legal proceedings requirements of Articles 94, of 97 and 98 Codes of Criminal Procedure were observed, the judge the motivated resolution leaves the claim without satisfaction or satisfies it and repeals the resolution on initiation of legal proceedings. In case of cancellation of the specified resolution the judge has no right to issue the decree on refusal in initiation of legal proceedings or about its closing.

Copies of the judge's ruling are sent to the prosecutor, to body which brought criminal case or in production of which there is case, for accession to the criminal case file, face which made the complaint, to his defender or the legal representative, the victim and person according to whose statement criminal case is brought.

Court, checking legality of the resolution on the initiation of legal proceedings having the right to make the decision only concerning that person whose interests the made complaint concerns.

If in the resolution on opening of production it was specified about stop of investigative actions for case for the period of consideration of the claim, then in case of leaving of the claim without satisfaction the judge in the resolution shall specify about recovery of investigative actions.

Proceeding from content of part of the twentieth article 236-8 Code of Criminal Procedure and considering that according to the Solution of KSU the Item provision 2 parts of the sixteenth article 236-8 Code of Criminal Procedure which provided pronouncement by the judge of the resolution on refusal in initiation of proceedings voided, since June 30, 2009 in case of decision making by the judge about cancellation of the resolution on initiation of proceedings originals of materials on which basis case was broken, return to body which held after it to case pretrial investigation, and in court there are materials of judicial proceedings according to the claim on this case.

In case of decision making about cancellation of the resolution on initiation of proceedings and refusal in its excitement which is taken out before decision making of KSU, that is till June 30, 2009, the filed a lawsuit materials based on which proceedings were initiated are stored in court.

10. On the judge's ruling according to provisions of article 236-8 Code of Criminal Procedure within seven days from day of its removal the appeal in Appeal Court through court which issued the decree, with observance of requirements of articles 349 and 350 Codes of Criminal Procedure can be submitted. This appeal is considered by rules, the stipulated in Clause 382 Codes of Criminal Procedure.

In case of submission of the appeal with the omission of term on appeal appeal the issue of its recovery is resolved according to procedure, the stipulated in Clause 353 Codes of Criminal Procedure.

The appeal have the right to give: person concerning whom criminal case, his defender or the legal representative was brought; persons whose interests the criminal case brought upon crime execution, their defenders and legal representatives concerns; the prosecutor who participated in consideration of the claim to the resolution on initiation of proceedings; the victim or person according to whose statement criminal case was brought.

Proceeding from content of provisions of article 382 Code of Criminal Procedure the Appeal Court in case of verification of judgments on this category of cases shall find out whether with observance of requirements of the procedural law the Trial Court considered the claim.

11. The resolutions of local courts and determination of Appeal Courts which are taken out concerning these resolutions which claims to resolutions on initiation of proceedings are left without satisfaction according to requirements of part two of article 383 Code of Criminal Procedure in cassation procedure were not appealed as they do not interfere with further production on criminal cases.

In cassation procedure resolutions of local courts and determination of Appeal Courts which repeal resolutions on initiation of proceedings as they interfere with further production on criminal cases can be checked.

Also in the presence of the bases provided by the law the specified judgments can be reviewed according to the procedure of exclusive production.

12. Proceeding from content of Item 2-1, of item 4 of part one of article 54 Code of Criminal Procedure, it is necessary to consider correct practice when the judge does not take part in consideration of criminal case in essence if he during pre-judicial legal investigation considered the claim to the resolution on initiation of this criminal case.

13. According to provisions Codes of Criminal Procedure, consideration of claims to the resolution on initiation of legal proceedings is performed only according to the procedure of criminal trial.

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