THE ROLE OF INVESTIGATIVE JUDGE IN ENSURING THE RIGHT OF A PERSON TO LAUNCH THE PRE-TRIAL INVESTIGATION
Ph. D. in Law
THE ROLE OF INVESTIGATIVE JUDGE IN ENSURING THE RIGHT OF A PERSON TO LAUNCH THE PRE-TRIAL INVESTIGATION
The article considers some topical issues that arise in course of resolution by the investigative judges of complaints on investigator’s (prosecutor’s) inaction, which consists in non-inclusion of records on criminal offences to the Unified Register of Pre-trial Investigations after receipt of a statement or report on criminal offence.
On the basis of the analysis of functionality and legal and regulatory framework of the Institute of Criminal Procedure for Initiation of Pre-trial Investigations, stipulated in the new Criminal Procedure Code of Ukraine (2012), and of examples in court practice, the author concludes that at present the investigative judges play an insufficient role in ensuring the informer’s right to call for the pre-trial investigation. Based on the results obtained, the article formulates specific conclusions and proposals to improve judicial protection of applicants.
Key words: the investigative judge, judicial control, appeal on the investigator’s (prosecutor’s) inaction, launch of pre-trial investigation, the Unified Register of Pre-trial Investigations.
Part 1 of Article 3 of the current Criminal Procedure Code of Ukraine (hereinafter the CPC, the CPC (2012))  defines the protection of individual against criminal offences as the priority of criminal proceedings (the latter includes crimes and criminal misdemeanors). The procedural system of protection is versatile in this respect; thus, to achieve the objectives of the article the research will be limited to consideration of the current state of implementation of the human right to launch the pre-trial investigation by application of the statement or report on the committed criminal offence to the investigator (prosecutor).
Principal fundamentals of modern regulations of launch of pre-trial investigation procedure are introduced by the Concept of Criminal Justice Reform in Ukraine (hereinafter the Concept), approved by the Decree of the President of Ukraine № 311/2008 from April 8, 2008. The Concept determines the preconditions of criminal justice reform and emphasizes the fact that the system of law enforcement bodies, created as the mechanism of persecution and repression, was not transformed into an institution for protection and restoration of infringed rights of individuals. Implementation of public expectations in this area would have to ensure an effective solution of the tasks of criminal procedure reform set out in Chapter II of Article 2 of the Concept. (The Criminal Procedural Law Reform). Among them the most urgent is the need to simplify the procedure of launch of pre-trial investigation “that is to be the time of receipt of information about criminal offence or misdemeanor by the authorized legal body. The corresponding officials should be obliged to launch the pre-trial investigation immediately after the receipt of this information, which should be reported to the prosecutor”.
This approach is consistent with the overall philosophy of the national criminal justice reform aimed at achieving a new quality balance between personal and public interests, which should ensure the priority of the human centrist approach at every stage of development and implementation of criminal procedure and is opposed to the previous CPC (1960) based on the formal-positivist principles .
This requires the use of the new type of legal thinking not only by investigators and prosecutors, but primarily by the judges. First, the judicial community should realize that pre-trial investigation bodies have lost their exclusive right to launch the criminal case. According to the new CPC in case of a citizen’s report on the committed criminal offence their role depends on the will of the applicant and is associated with the functions of state agencies responsible for rendering of public services listed above. The main objective of the new Concept is to simplify a person’s (especially victim’s) access to the state mechanisms of defense through the quickest start of pre-trial investigation procedure and the use of optimal set of investigative means (overt and covert) to establish the circumstances of the crime and the guilty. The impossibility to predict and secure every possible negligence and even resistance by competent authorities to the new Concept is clear, as the Code is “designed” for the virtuous and professional prosecutors and investigators. Nevertheless, taking into account the negative experience of untimely or non-registration of statements and reports on criminal offence under the previous CPC (1960), the new CPC provides for two important procedural safeguards: the obligation of the prosecutor/ investigator to register statements and reports on criminal offence; and the right of the applicant to report to court on the violation of such obligation. The last guarantee corresponds to the requirements of the Concept on the need for significant improvement of judicial control at the stage of pre-trial investigation.
Later on, the given conceptual ideas were embodied in the current CPC and provisions of other legal acts. In particular, according to part 1 of Article 214 of the CPC (Launch of Pre-trial Investigation), the investigator/ prosecutor shall immediately, but not later than 24 hours after application of the statement or report on the committed criminal offence, enter the relevant information to the Unified Register of Pre-trial Investigations (hereinafter the Register) and commence the investigation. Part two of the given Article secures that the procedure for formation and maintenance of the Register shall be governed by the special regulation. Thus, the Regulation is an integral part of the institution of pre-trial investigation initiation; it subordinates to the rules of the CPC and only specifies and interprets the content of the law. In accordance with the requirements of Section 3.1 of the Regulation on the operation of the Unified Register of Pre-trial Investigations, approved by the General Prosecutor of Ukraine № 69 from 17.08.2012 (with changes approved by order of the Prosecutor General of Ukraine: № 113 from 14.11.2012, № 13 from 01.25.2013, № 54 from 25.04.2013), the information contained in the statement/ report on the committed criminal offense shall be entered to the Register within the term specified by part 1 of Article 214 of the CPC.
Part 3 of Article 214 of the CPC bans any pre-trial investigation prior to or without entering the required data to the Register. That is, non-registration of statement/ report on the committed criminal offence, which seems to be purely formal, leads to serious negative consequences as the person is practically deprived of the opportunity to exercise their right for public protection from crime. When reading the text of the stated part of the CPC it is possible to come to the incorrect conclusion that the general rule has two, which allow not to enter data on the criminal offence to the Register within 24 hours. The first is is the need to carry out an emergency inspection of the site, after the completion of which the information shall be immediately entered into the Register. The second is the detection of criminal offence on a sea craft or a river boat outside Ukraine, when the pre-trial investigation shall be launched immediately and the information on which shall be entered into the Unified Register of Pre-trial Investigations as soon as possible.
In fact, only the second situation can be considered as an exception. If there is radio (or other) contact with structural units in the port of residence of the ship/ boat on the territory of Ukraine the ship captain shall immediately (or immediately within the reasonable time limits) send a telegram or arrange a video conference to report on the commission of criminal offense on board of the ship (Part 1 of Article 28 of the CPC), and then take the relevant measures and initiate the investigation procedure (Part 2 of Article 520 of the CPC). It is obvious that the captain of the ship should rely on the stated model of behavior. But even in the absence of opportunity to make this report the captain of the ship shall undertake the necessary procedural steps immediately (or immediately within the reasonable time limits) after discovering the signs of criminal offence (section 2 part 1 of Article 519, Article 520 of the CPC).
However, the inspection of the site, in case if it is aimed to check the commission of criminal offence, shall be made no later than within 24 hours after the receipt by the investigator (prosecutor) of the statement on the committed offence. Such reading of the legal norm is achieved through the application of the text and system interpretation analysis. Thus, the main purpose of Part 3 of Article 214 of the CPC is the ban on the investigation (pre-trial investigation) prior to entering the appropriate information to the Register. The optional value of this regulation in case of investigation of criminal offence on a sea craft or a river boat outside Ukraine is stated above.
The following should be taken into account as to the wording of the other exception from the general rule. The stated part of the legal document provides for the certain order of site inspection and data input into the Register that can be violated only in emergency cases. However, part 3 of Article 214 of the CPC does not change the legal time limits for entering the relevant data to the Register set by part 1 of Article 214 of the CPC and have the special status for other parts of the Article. The conducted analysis of part 3 of Article 214 of the CPC proves that time limits for entering the data to the Register shall not be violated in cases of emergency inspection of the site. The authorized bodies are required to enter the information concerning the grounds for site examination and/ or results of the conducted investigation into the Register within 24 hours from the receipt of the corresponding statement or report.
The correct definition of the "moment" of filing of statement or report on criminal offense obtains practical importance for the realization of the rights of persons who apply to the court complaining on the inaction of the corresponding investigator (prosecutor). As a rule, applicants do not contact directly investigators or prosecutors but other officials. Therefore, the author based on the principles of the CPC and the rule of law concludes that the "moment of filing of statement or report on criminal offense to the relevant authorities” is also the moment of application of the corresponding statement or report not to the investigator/ prosecutor directly but to the other official (from the Public Prosecutor’s office, the Ministry of Internal Affairs of Ukraine etc.) in the manner prescribed by the substatutory act.
It also should be noted that according to the content and logic of Article 214 of the CPC the statement or report on the committed criminal offence, which are transferred to another pre-trial investigation body (part 5 of Article 36 of the CPC) by competence (part 7 of Article 216 of the CPC) or by place (Article 218 of the CPC), shall first be entered to the Register according to the original place of submission within the time limits set by law. And only after such registration the authorities can make decisions concerning the transfer of the corresponding statements or reports to the relevant bodies by competence. The Regulation on the Operation of the Register (Section 2, paragraph 3.3.1, part 4.2) also provides for the transfer by competence or by place of the criminal proceedings (i.e. information on the criminal offence that is entered to the Register and assigned an individual registration number of criminal proceedings) and not of the separate statement or report. Therefore, the redirection of the statement or report on the committed criminal offence under Section 1 of paragraph 2.1 part 6 of the Regulations, which provides for the transfer of materials and information to another body of pre-trial investigation by competence or by place, shall be considered as not meeting the requirements of the current CPC and having signs of illegal omission on the part of the investigator or prosecutor.
The law (part 5 of Article 214 of the CPC) provides for the basic list of data that should be entered into the Register. It is obvious that this information is of comprehensive legal significance for taking decision on registration of criminal proceedings. The legislature associates the sufficiency of grounds for registration of a statement or report on criminal offence with the simplified (formalized) procedure. It is defined by the source of information (personal data of the victim, a name of the other source) or the nature of the stated circumstances that on the whole must point to the criminal offence and shall be previously assessed by the applicant or the investigator (prosecutor). The given list indicates, for example, that the refusal to enter information contained in the anonymous statement or report on the committed criminal offence to the Register is entirely legitimate. At the same time, at the moment of application of the statement or report the reliability and sufficiency of the submitted information on the circumstances of the committed criminal offence, and the accuracy of its prior assessment is taken as granted and do not require any material or documental evidence on the part of the applicant.
According to the author, mention of other circumstances, which is stipulated by the Regulations on the Operation of the Register under paragraph 7 of part 5 of Article 214 of the CPC, is not of legal, but of purely service value (correct record of criminal proceedings etc.). If the applicant fails to provide such information (e.g., information on the person who committed the crime, the value of the stolen property etc.) it shall not hinder the pre-trial investigation initiation. Therefore, the refusal of the investigator or prosecutor to enter data into the Register on the grounds that the statement or report on the committed criminal offence does not contain information concerning the circumstances stipulated by paragraph 7 of part 5 of Article 214 of the CPC shall be regarded as the illegal omission on the part of the official.
Part 4 of Article 214 of the CPC bans the investigator, prosecutor or other authorized official from refusal to accept and register statements and reports, which is a special procedural safeguard ensuring the right of a person to initiate the pre-trial investigation. In practice, the given safeguard shall be considered in unity with the provisions of paragraph 1 of part 1 of Article 303, part 1 of Article 304 of the CPC, which secures the legal possibility of the applicant, the victim or their (legal) representative to appeal the inaction of the investigator or prosecutor that consists in the failure to enter information on the criminal offence to the Register within the ten days term after receipt of such statement or report. In this way the legislator implemented the conceptual provisions aimed at strengthening of the role of the judiciary in the review of complaints against the omissions by investigator or prosecutor, and reinforced the procedural guarantees of the victims’ state protection against committed criminal offences.
The study of status and prospects of judicial review is of particular practical importance due to two reasons. First, the form of pre-trial investigation initiation used in the current CPC is of innovative nature in comparison to the institute or criminal procedure initiation used in the previous CPC (1960). It is created within the fundamentally different conceptual framework that should be considered by the court. Second, the practice of applying of pre-trial investigation procedure is currently being formed. The available data proves that this practice is of ambiguous nature. In many cases, the law enforcement bodies tend to rehabilitate the discretion right provided for by the previous CPC (1960) concerning the decision whether to initiate the criminal procedure and to record the statement of offence estimating at its own discretion the sufficiency of grounds to initiate the pre-trial investigation. The use of a broad number of means is available in these cases starting from the subordinate legislative acts of the competent authorities (departmental instructions, orders etc.), which are to some extent inconsistent with the current CPC and contradict general provisions of the theory of law  and principles of legal order defined by Articles 8, 19 of the Constitution of Ukraine, and up to the inventive “creative decisions” of the authorized bodies concerning the maintenance of familiar patterns of action in deciding whether to initiate the pre-trial investigation procedure by analogy to the criminal initiation procedure or not to record such statements at all. As a result, the pre-trial investigation bodies seem to develop “the parallel legal reality” that has nothing in common with the demands of the current CPC.
Formation of such arbitrary practices results not only in the extensive number of direct violations of the rights of persons who applied for state protection, but also in the development and fixing in the minds of officials and in organizational and functional forms of activity of pre-trial investigation bodies of illegal practices and traditions based on the misinterpretation of the relationship between the law and expediency, and distortion of the hierarchy of legislative acts (for example, the priority of instruction and not of the law) that may eventually become the basis for questionable legislative initiatives aimed at the amendment of the CPC.
The stated adverse phenomena are mentioned by a number of scholars. In particular, in the report on the “Implementation of the new CPC of Ukraine in the first half of 2013”  the Centre for Political and Legal Reforms (CPLR) categorically concluded that the introduction of automated initiation of pre-trial investigation did not produce the desired effect in the area of protection of the rights of victims. According to scholars, the main reason for this is the reluctance of representatives of preliminary investigation bodies to record every statement on the committed criminal offence. In particular, it is argued that the number of recorded statements on criminal offence not only failed to increase, but dropped almost by half (from 300 000 monthly statements in 2012 to 140 000 monthly statements in the first half of 2013). After closing of approximately 100 000 proceedings each month in the second quarter of the year there are about 47 000 of criminal cases in the Register, which is not significantly different from the 38 000 of criminal cases, stated under the previous CPC (1960).
And this is despite the significant financial, material and human resources support allocated to ensure the proper implementation of the new CPC on the part of the public prosecution (174 million more in 2012 and 550 million in 2013) and the Ministry of Internal Affairs (1,5 billion more in 2013 than in 2012). There is also an increase in the number of judges. Thus, the order of the State Judicial Administration of Ukraine (SJAU) from 13.07.2012 "On the determination of the number of judges of local general courts” provided for an increase in number of judicial positions (from 4838 to 6014 judges) , and the order of the SJAU from 16.07.2012 also provided for an increase in number of the full-time court staff.
When comparing the statistics on registration of statements and reports on crime offences in Ukraine before and after introduction of the current CPC the legal practitioners note the significant reduction in the number of recorded statements on crimes, which they associate with the fact that today investigators and prosecutors deliberately refuse to register every second statement or report on crime offence . For example, the study of complaints on the failure to enter crime statements or reports to the Register showed that in 44 cases out of 62 (i.e. in 70, 9%) investigators and prosecutors refused to register the information. In other words, those were the officials who are by law responsible for the procedural management of pre-trial investigations (part 2 of Article 36 of the CPC) and from whom the society generally expects an appropriate level of competence and reliable protection of citizens’ rights.
Given the critical state of the question under discussion and available material and human resources to fulfill the requirements of the CPC, one must conclude the ineffective operation of the state mechanism of pre-trial investigation initiation. But taking into account the goals of the article and fundamental increase of the social significance of judicial protection in the modern Ukrainian society, the emphasis should be put on the insufficient participation of judicial institutions in the protection of the applicants’ right, which also leads to indirect negative consequences. In particular, it significantly reduces the influence of the court on the formation of the proper procedure of pre-trial investigation initiation.
Some investigative judges make mistakes due to the incorrect interpretation and application of procedural rules and incorrect understanding of the role of court in the mechanism of protection of rights and legitimate interests of the person established by the Constitution of Ukraine (Articles 1, 3, 55 and others), particularly in deciding on the launch of pre-trial investigation procedure. For example, the decision of the investigative judge of Bobrovick District Court of Chernihiv region from 07.02.2013  returned the complaint of a citizen Sh. on the illegal omissions and obligation of Bobrovick District Department of Internal Affairs of Ukraine in Chernihiv region to enter information on criminal offence to the Register on the basis that he is not a person entitled to file the stated complaint under paragraph 1 part 2 of Article 304 of the CPC.
From the motivation part of the stated decision it became clear that the investigative judge analyzed the provisions of Article 214 of the CPC of Ukraine regarding the procedure and grounds for entering information to the Register and came to the wrong conclusion that the stated data should be entered to the Register only on condition that the authorized official finds in the statement the signs of a criminal offence and in other cases the filed complaint shall be considered according to the Law of Ukraine “On Citizens’ appeals”. Since the time for taking decision in case of the citizen Sh. did not expire according to the Law of Ukraine “On Citizens’ Appeals” and the applicant did not specify to the court any information on the investigator’s or prosecutor’s decision, the investigative judge concluded that the applicant had no right to file such complaint. Providing assessment to the conclusions and actions of the investigative judge, the appellate court determined that they are inconsistent with the requirements of the current CPC of Ukraine. In particular, in the complaint, filed in accordance with the provisions of Article 214 of the CPC of Ukraine, the citizen Sh. presented the specific circumstances of the offence and expressed a request to bring a citizen B. to criminal responsibility. According to part 4 of Article 214 of the CPC the refusal to accept and register a statement or report on criminal offence shall not be permitted. Therefore, the complaint of the citizen Sh. is consistent with the provisions of the law concerning the matter and the subject of appeal, and the refusal of the investigative judge to consider the complaint directly contradicts the provisions of paragraph 1 of part 1 of Article 303 and part 1 of Article 306 of the CPC of Ukraine. The stated articles establish that an applicant has the right to appeal the inaction of the investigator and/ or prosecutor which consists in a failure to enter the information to the Register after the receipt of the statement or report on criminal offence. Given this, the Court of Appeal concluded that in consideration of the complaint of the citizen Sh. the investigative judge violated the general principles of criminal proceedings, namely: the rule of law (Article 9), the principle of access to justice and obligation to obey court decisions (Article 21), the right to appeal court decisions, actions or inaction (Article), which deprived the applicant of the right to judicial protection of his legitimate interests. Therefore, the decision of Bobrovick District Court of Chernihiv region on return of the complaint from 07.02.2013 was declared illegal and cancelled.
The above stated or similar position of the investigative judge can not be justified by certain “objective” conditions that may have contributed to their pronouncing of illegal decisions, including the lack of judicial practice in applying the current CPC of Ukraine and the inappropriate enforcement practice on the stated issue in some of the criminal investigation bodies.
In fact, the Regulations on the operation of the unified register of statements and reports on the committed criminal offences in the bodies of internal affairs of Ukraine  provide for possibilities to refuse entering to the Register the data contained in the correspondent statements (reports) on the committed criminal offences, which are quite questionable from the legal point of view. Thus, paragraph 5 of the stated Regulations establishes that in case of submission to the law enforcement agencies of statements and reports that do not indicate the commission of criminal offence, they shall be recorded in the unified register of statements and reports on committed criminal offence and other events and then reported to the head of the law-enforcement body (or the person performing their duties), who shall consider it and take the decision according to the Law of Ukraine “On Citizens’ Appeals” or the Code of Ukraine “On Administrative Offences”. If the head of the law enforcement body finds out that the statement or report contains information that indicates a criminal offence they shall by a special resolution (but no later than one day after the record of the statement in the unified register) return it to the correspondent agency to be immediately transferred to the head of the investigation division.
It seems that the investigative judges shall pay attention to the fact that the above stated procedure is not perfect and may violate the rights of applicants. The flow chart of its application permits to reasonably assume the existence of serious threats to compliance with the 24-hour registration period established by the CPC. And this is even in absence of the influence of the so-called “subjective factor”, which is inevitable. In particular, it should be kept in mind that the Regulation entitles the head of the law enforcement body, who is neither an applicant nor a participant in a criminal procedure, to initiate the consideration of pre-trial investigation procedure regulated by the CPC. In great majority of cases heads of the law enforcement bodies come from operational rather than investigative units and thus do not have enough experience to give the proper legal assessment to the statements. What is more, being the head of the law enforcement body, they are officially responsible for the work results of the whole unit, including the disclosure of crimes and, therefore, are largely interested in the assessment of citizens’ statements and reports. Thus, due to the unwillingness, negligence, lack of professionalism of the officials and human factor it is possible that the statements do not receive proper legal examination, provided for by Article 214 of the CPC of Ukraine. Instead, the investigative judge in consideration of the case shall follow the rule of law and can not limit themselves to the statement that the actions of legal officers formally comply with requirements of the relevant subordinate legal acts, if these actions by nature and legal consequences do not meet the requirements of the CPC and the Constitution of Ukraine.
The decision of the investigative judge in another case with the analogous motivation deserves the similar negative assessment . The applicant complained on the inaction of the prosecutor who did not enter to the Register the relevant information on the crime committed by the PERSON_3. The investigative judge dismissed the complaint, stating that “the seven-day period set by the Regulations on the Operation of the Unified Register of pre-trial investigation, approved by the General Prosecutor of Ukraine № 69 from 17.08.2012 did not expire after the application of the statement by the PERSON_2 and thus there is no sufficient reason to consider illegal the inaction of the prosecutor of the Hirnytskiy district of Makeyevka. Such motivation is clearly ungrounded and contradicts the requirements of part 1 of Article 214 of the current CPC regarding the obligation of the investigator and/ or prosecutor to enter the relevant information and initiate the investigation not later than 24 hours after application of the statement or report on criminal offence.
Practicing lawyers pay attention to the numerous cases of similar violations by investigative judges in dealing with complaints on the investigator’s or prosecutor’s inaction. According to A. Baganets , the most common reason to refuse the satisfaction of such complaints by investigative judges is the statement that a crime report does not contain the reference to offender or any data indicating the signs of criminal offence. In support of this opinion the author references a rather telling example, when the investigative judge in support of his refusal to satisfy the complaint on the inaction of the prosecutor of Khmelnytsky, which was the non-entry of the crime report to the Register, provided the following motivation: “Systematic analysis of the provisions of the law referenced above give grounds to conclude that not every statement or report shall be entered to the Register, but only those that contain the sufficient information on the criminal offence. If a statement or report contains information that really indicates the signs of a crime (such as time, place, manner and other attendant circumstances) this gives grounds to consider the application to be the crime statement or report. If a statement or report does not contain such information they can not be considered as those to be necessarily entered to the Register” .
The critical assessment of compliance of this judgment to the law should not be omitted. In particular, as it was noted above, Article 214 of the current CPC, contrary to Article 98 of the CPC (1960), does not provide that an investigator or prosecutor should assess the reliability and sufficiency of information contained in the statement or report on criminal offence as the grounds for entering the statement or report to the Register and initiating the investigation procedure. The court’s opinion requiring from the applicant the evidence of circumstances of the crime seems to be unjustified. This requirement not only contradicts the requirements of the CPC, but also proves that the author ignores the proof procedure established by law. As neither the previous CPC (1960) nor the current CPC does not provide for a possibility of formation of evidence prior to criminal procedure initiation (pre-trial investigation initiation) and an applicant is not endowed with the powers to collect evidence. What is more, such requirement of the court contradicts the conceptual basis of the new model of pre-trial investigation initiation and the general principles of criminal proceedings determined by the current CPC (Article 7). Interpretation of part 2 of Article 23 of the CPC implies that only the court can decide whether the factual data produced by the parties can be regarded as evidence in the specific criminal proceedings. This principle, in turn, relies on the provisions of the aforementioned Concept (Article 2), which provides for the exclusive powers of the court to admit gathered factual data as evidence in a case.
According to the author, some problem cases testifying judges unwillingness to satisfy complaints on the investigator’s or prosecutor’s inaction may arise due to their neglect of conceptual foundations of the new model of pre-trial investigation initiation and unsystematic interpretation of the provisions of the current CPC. For example, in one case it was found out that the prosecutor recorded the statement on criminal offence in the Register, but changed the information indicated by the applicant concerning the offender and the criminal-juridical qualification of the crime. The investigative judge refused to satisfy the applicant’s complaint stating that “the law does not provide for appeal of actions or inaction of the investigator or prosecutor in case of recording in the Unified Register of pre-trial investigation of information which form and/ or content does not correspond to that indicated by the applicant” . Formally, the judge is right: part 1 of Article 303 of the current CPC subjects to appeal only one form of prosecutor’s inaction, i.e. fail to enter the information on criminal offence to the Register. However, the investigative judge shall analyze consider all circumstances of the complaint according to the provisions of the current CPC. Thus, according to the principle of publicity, the launch of pre-trial investigation procedure is formally predetermined and shall be the moment of recording of information contained in the filed statement or report to the Register (parts 1, 2, 4 of Article 214 of the CPC). The aforementioned procedure is not the right but the duty of the authorized officials. Paragraph 1.1. of Section II of the Regulations on the Operation of the Register specifies these requirements stating that formation of the Register starts when investigator or prosecutor records therein information on criminal offence indicated in the statement or report. Then the paragraph 1.4 of the stated provision imperatively establishes that the statement or report on criminal offence shall be considered filed from the moment of warning of a person about criminal responsibility (except cases in which such warning can not be made due to objective reasons: presenting of a statement or report by mail or other means of communication, unconsciousness of an applicant, business trip etc.). Thus, the prosecutor (investigator) is not entitled to change the content of the filed application on criminal offence, and deliberate entering of incorrect information to the Register by the stated official can be regarded as an offence. Taking in to account the circumstances it would be impossible to believe that in the above case the prosecutor acted within the legal authority and in the legal way. That is, in the author’s opinion, according to part 1 of Article 303 of the current CPC the indicated actions of the prosecutor shall be considered as inaction.
It is another thing if the filed statement or report on criminal offence does not indicate the circumstances stipulated by part 5 of Article 214 of the CPC, including indication of the preliminary criminal-juridical qualification of the committed crime. In this case an applicant shall be offered to indicate such qualification, and in the event of failure or inability to do it the prosecutor (investigator) is entitled to qualify the crime on the basis of the reported circumstances and/ or the review of the site. If in course of pre-trial investigation the prosecutor (investigator) finds out there are other persons involved, the change of the criminal-juridical qualification of the crimes committed by them generally does not give rise to any objections. However, the said information shall be entered to the Register in a special manner specified in part 8 of Section II of the Register (Editing of the Register Data).
In practice there are cases in which investigative judges refuse to administer justice and return without consideration the complaints on the inaction of the investigator or prosecutor referring on the presence of “papers of refusal” compiled by the police according to the circumstances indicated in the applications prior to the entry into force of the current CPC. These are papers in the refuse to initiate the criminal case set forth in a separate case and containing the decision not to open the criminal case, agreed with the head of the unit and approved by the chief officials of the law enforcement body (except for the investigator’s orders), the second copy of which is sent to the relevant prosecutor for execution of the relevant supervision. However, the “papers of refusal” that were not subject to the highest court’s examination are regarded as the product of departmental operation or departmental (prosecutorial) control and have to prejudicial value. Therefore, they can not automatically be used as the basis of the legal position of a judge. What is more, part 1 of Article 58, the study of criminal process [12, p. 29] and part 1 of Article 5 of the current CPC (Operation of the Code in time) establish the general rule according to which the pre-trial investigation bodies and the court shall apply procedural rules that are in force at the time of the start of proceedings or taking a procedural decision. It should be noted that in comparison to the previous CPC the new procedure for pre-trial investigation initiation significantly improves the procedural status of an applicant and ensures more complete protection of their rights. Therefore, compliance to the said procedure shall be the subject matter in the judicial review of the stated complaints.
At the same time, experts suggest addressing this issue from other perspectives, which deserves critical analysis. In particular, with the reference to the rule of law the Supreme Court of Ukraine (SCU) placed on its official website the commentary of the Judicial Chamber in criminal cases of the SCU to part 3 of Section XI (Transitional Provisions) of the Criminal Procedure Code of Ukraine . Omitting the reasoning part of this commentary we pay attention only to the categorical conclusion of the authors stating that if the decision on refusal to initiate the criminal procedure was adopted by the investigator or prosecutor and not cancelled prior to the adoption of the current CPC (2012), this deprives the corresponding applicant of the right to file the repeated statement or report on criminal offence and record it in the Unified Register of pre-trial investigations.
Based on the above statement investigative judges in many cases refuse to consider complaints on the investigator’s or prosecutor’s inaction  and in reasoning their decisions refer to the instructions of the Information letter of the High Specialized Court of Ukraine for Civil and Criminal Cases (HSCU) “On some issues of application of norms of section XI “Transitional Provisions” of the Criminal Procedure Code of Ukraine” . In part 5 of this letter judges are proposed to consider complaints on decisions not to initiate criminal cases and complaints on decisions to close criminal cases in the manner and terms prescribed by the CPC (1960). If they are filed after the appeal period provided by the CPC (1960) it is recommended to the court to refuse the consideration of the corresponding complaint. However, when referencing these instructions judges seldom bear in mind that the Information letter of the HSCU refers not to the complaints on the inaction of the said officials but to the appeals of procedural decisions, which leads to the substitution of concepts that are different by their legal nature (inaction – procedural decision). Finally, this leads to the selection of the wrong way of consideration of the case and results in the adoption of unjustified judicial decision.
If we basically admit judicial discretion, then it is obvious, in terms of common sense, that the most right solution is to let the applicant themselves decide on the best option for protecting their rights, and based on that evaluate real prospects and legal consequences of the use of each alternative. For example, there are two options to solve the typical legal situation. First, an applicant may appeal (with the restoration of the appeal period) the investigator’s decision not to initiate the criminal procedure, taken, for example, in 2010, based on the grounds that the applicant believes to be purely formal or contrived and without proper verification, and, what is more, due to legal impossibility to use the whole arsenal of means of verification of a statement or report on a crime, provided for by the current CPC. Second, the applicant may report a criminal offence in the manner prescribed by the current CPC and directly initiate the pre-trial investigation. With all the due respect to the highest judicial institutions it should be borne in mind that the uncertainty of legal nature of information letters of HSCU and the scientific (theoretical) value of interpretation of the current CPC provisions in the instructions above means that they are not binding and are of recommendatory or informative nature to judges. It may even be possible to assume that the authors of these instructions exceeded their scientific authority and to some extent improperly attempted to “deprive a person” of the right to file a crime statement/ report and record it in the Register guaranteed by the Constitution and the CPC of Ukraine.
The situation regarding judicial decisions not to satisfy the complaints on investigator’s/ prosecutor’s/ investigation body’s refusal to initiate criminal proceedings (Article 236-2 of the CPC, 1960) or decision to close the case (Article 236-6 of the CPC, 1960), which entered into force prior to the adoption of the current CPC, is not as unequivocal and requires a differential approach. In any case, such complaint should be subject to judicial review. At the same time, according to the author, court decisions to keep in force the investigator’s/ prosecutor’s/ investigation body’s refusal to initiate criminal proceedings shall be of no critical value to the investigative judge, as the current CPC in comparison with the CPC of 1960 significantly extends the choice of means of verification of crime statements/ reports and the scope of their use. Instead, the investigative judge may take into account the judgment to leave in force the reasonable decision of the stated officials to close the criminal proceedings on the results of preliminary investigation, which was adopted after the launch of a criminal case. If the investigative judge verifies the complete, thorough and objective investigation by the pre-trial investigation bodies of the unlawful action filed in the manner prescribed by the current CPC, it should be considered the necessary condition for such position of the investigative judge.
It is advisable that investigative judges pay attention to the fact that investigators and prosecutors may create preconditions of other nature to impede the right of applicants to appeal in court the inaction of the stated officials. The vast majority of applicants are not present and, consecutively, are not aware of the time of adoption of investigator’s/ prosecutor’s decision to refuse registration of a crime statement/ report, and as they do not generally receive the corresponding notification (or receive it with a significant delay). As a result in great majority of cases they can not fulfill the requirements of part 1 of Article 304 of the CPC regarding the filing of a complaint within ten days and exercise their right to appeal the inaction of the prosecutor (investigator), i.e. non-registration of a crime statement/ report.
It seems that in such circumstances to meet the requirements of rule of law (paragraph 1 of part 1 of Article 7 of the CPC) and ensure the protection of the applicant’s rights the investigative judge shall refer by analogy [12, p. 27] to the provisions of Article 117, part 3 of Article 395, paragraph 4 of part 3 of Article 399 of the CPC regarding the grounds and order for restoration of period of appeal against the prosecutor’s (investigator’s) non-registration of the crime statement/ report. In a whole, such conclusion is consistent with the instruction of paragraph 5 of the aforementioned Information letter of the HSCU № 1640/0/4-12 from 09.11.2012.
Currently, many practitioners and scholars discuss the need to complement the institute of pre-trial case initiation with the rules regulating the right of stakeholders (“potential suspects”) to appeal the legality of pre-trial investigation initiation. Supporters of the said proposal claim that it will balance the possibility of legal protection of the stakeholders and take into account the positive experience of the previous CPC (1960) concerning this issue.
It is difficult to agree with the stated proposal. According to the author, the formal mechanism of pre-trial investigation initiation introduced by the current CPC makes it useless to introduce the right to appeal the decision on criminal case initiation envisaged by Articles 236-7, 236-8 of the CPC (1960). It must be borne in mind that according to the previous CPC (1960) the decision on criminal case initiation should have been reasonably grounded. As many scholars, including the author, have paid enough attention to the study of the shortcomings and inefficiency of criminal procedure initiation stage, which legal regulation did not ensure the right of victims to protect their public interests according to the previous CPC, it is not feasible to discuss it again . Nevertheless, previously the person, whose interests were concerned in the criminal case (if it is associated with crime commission) or the person against whom the crime was initiated, their legal counsel or representative could appeal the criminal case initiation in court. In such case the subject of the proceedings consisted in determining the presence of legitimate and sufficient reasons and compliance with the criminal proceedings initiation (Articles 94, 97, 98 of the CPC, 1960). According to the current CPC the situation is quite different. The launch of pre-trial investigation procedure depends not on a quality factor, but purely on filing of a statement or report on criminal procedure, which is purely formal. The fact that by recording a statement or report on criminal offence in the Register and initiating a pre-trial investigation an investigator or prosecutor only follow the law provisions and perform their duties means that there is no subject of appeal or judicial proceedings. In any case, to appeal legitimate actions of authorized persons has no prospects of success. Therefore, the solution to this controversial issue lies in another dimension, and to ensure the rights of persons, whose interests are concerned in the commenced pre-trial investigation (and/ or “potential suspects”), it is necessary to settle other procedural mechanisms. For example, to determine an effective procedure to appeal the failure of pre-trial investigation bodies to comply with the terms necessary to conduct certain investigation activities or pre-trial investigation in particular criminal proceedings.
In sum, the results of analysis of the current functional and normative-regulatory basis of criminal-and-legal institution of pre-trial investigation initiation defined by the new Criminal Procedure Code of Ukraine (2012), indicate insufficiency of the role of investigative judges in ensuring the Constitutional rights of applicants to state protection from crime through pre-trial investigation initiation. The situation requires an urgent solution. It should be borne in mind that the right to appeal in court the inaction of the investigator or prosecutor is one of the most important guarantees of judicial protection of citizens’ rights and freedoms from their possible violation by the authorities in charge of criminal proceedings. That is why part 1 of Article 24 of the CPC of Ukraine guarantees everyone the right to appeal judicial decisions, actions or inaction of the stated subjects of criminal proceedings in the manner specified in Chapter 26 of the CPC of Ukraine. Strict observance of this procedure is not only an important guarantee of judicial protection of rights of participants in judicial proceedings, but, in accordance with paragraph 17 of part 1 of Article 7 of the CPC of Ukraine, is also one of the foundations of criminal proceedings.
The level of judicial protection of rights and legitimate interests of persons in Ukraine must correspond to the high European legal values so that Ukraine can receive the status of a democratic and legal state, which is of great social significance today, in the period of implementation of the new CPC and formation of the legal enforcement practice. Thus, the question studied in this article must be addressed in the administration of justice at the highest professional level. The given requirements oblige the investigative judge to use the latest approaches of the human-centrist philosophy of law when considering and resolving complaints on the investigator’s or prosecutor’s inaction, which consists in non-entering to the Register of information about criminal offence, to be conscientiously guided by the requirements and the rule of law; not to limit oneself to stating the fact in decision-making, but to decisively provide the legitimate and fundamental assessment for the stated practice of pre-trial investigation bodies, if the latter contradicts to the requirements of the CPC of Ukraine.
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Komentar do rozdilu X PRYKINTSEVI POLOZHENNYA Kryminalnoho protsesualnoho kodeksu Ukrayiny. Ofitsiynyy veb-sayt Verkhovnoho Sudu Ukrayiny. Rozdil “Sudova praktyka”. Elektronnyy rezhym dostupu: http://www.scourt.gov.ua/clients/vsu/vsu.nsf/%28documents%29/7597040925BD0C52C2257B7B004D8CE3