Publication date: 15.05.2024
Closure of criminal proceedings by the investigator or prosecutor automatically terminates the seizure of property
If the criminal proceedings are closed by the decision of the investigator or the prosecutor, the decision of the investigating judge to seize property (material evidence) ceases to be effective, given that the deprivation of the right to alienate, dispose of and/or use the relevant property, applied by the investigating judge, also ceases to be effective.
This, among other things, was pointed out by the joint chamber of the Criminal Court of Cassation as part of the Supreme Court in the decision of April 15, 2024 in case No. 554/2506/22.
According to the circumstances
The case was reviewed based on the cassation appeal of the defender against the decision of the appeals court to close the appeal proceedings based on the appeal against the decision of the investigating judge, by which after the closure of the criminal proceedings, the property was transferred not to its owner, but to a third party as physical evidence.
Conclusions of the joint chamber of the Central Committee of the Supreme Court
In this case, the Supreme Administrative Court of the Supreme Court partially satisfied the cassation appeal of the lawyer, canceling the decision of the appeal court, and ordered a new trial in the court of appeal, making the following conclusions.
Automatic termination of security measures
Regarding the application of the norm provided for in para. 1 part of the 4th century 132 of the CCP of Ukraine
In the event that the investigator, prosecutor closes the criminal proceedings in accordance with the procedure provided by the Criminal Code of Ukraine, the measures to ensure the criminal proceedings, including the seizure of property, cease to be effective by virtue of the direct instructions of Part 4 of Article 132 of the CPC of Ukraine.
The right of appeal and cassation appeal
Regarding the application of the norms provided for in Art. 309, Part 4 of Art.399 of the Criminal Procedure Code of Ukraine, in their relationship with the provisions of Art. 170–174 of the Communist Party of Ukraine
The decision of the investigating judge on the cancellation of the seizure of property or the refusal to cancel it, adopted after the conclusion of the criminal proceedings, is not provided for by the criminal procedural norms, therefore the court of appeal has no right to refuse to check the legality of such a decision, referring to the prescriptions of Part 4 of Article 399 and Art. 309 of the CPC of Ukraine.
The right to appeal such a court decision shall be ensured on the basis of Clause 17, Part 1, Art. 7 and Part 1 of Art. 24 of the CPC of Ukraine, Article 124, 129 of the Constitution of Ukraine.
Regarding the application of the norm provided for in Part 9 of Art. 100 of the Criminal Procedure Code of Ukraine, in relation to the norms provided for in Article 171–174 of the Communist Party of Ukraine
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The court decision, adopted on the basis of Part 9 of Art. 100 of the Criminal Procedure Code of Ukraine, after the conclusion of the criminal proceedings by the investigator or prosecutor, according to which the issue of the fate of material evidence and documents has been decided, can be appealed both in the appeal and in the cassation procedure.
Accepted by the investigating judge in accordance with Part 9 of Art. 100 of the Criminal Procedure Code of Ukraine, a decision on the issue of the fate of physical evidence and documents may be appealed in the appeal procedure on the basis of Clause 17, Part 1, Art. 7 and Part 1 of Art. 24 of the Criminal Code of Ukraine as such, which is not provided for in the Criminal Code of Ukraine.
