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Publication date: 17.05.2024
OP KKS Supreme Court INDICATED THE CONSEQUENCES OF ESTABLISHING THE UNREASONABLE RETURN OF THE APPEAL COMPLAINT ON THE DECISION ON CHOOSING PRECAUTIONARY MEASURES
Failure to appoint a new appellate review in the event of an unfounded return of an appeal against a decision to elect or extend a preventive measure makes it impossible for a person to obtain legal satisfaction for illegal deprivation of liberty.
This follows from the conclusion of the joint chamber of the Criminal Court of Cassation as part of the Supreme Court, made in the decision of April 1, 2024 in case No. 751/3856/21.
In particular, the OP of the CCS of the Supreme Court concluded that the court of cassation, having established that the decision of the court of appeal to return an appeal against the decision on the selection (extension) of a preventive measure, was adopted in violation of the prescriptions of clause 4, part 3 of Article 399 of the Criminal Procedure Code of Ukraine, in accordance with Clause 1, Part 1 of Article 438 of this Code cancels the contested decision with the appointment of a new trial in the court of appeals on the basis of Clause 2, Part 1, Art. 436 of the specified Code.
According to the circumstances of the case
The joint chamber of the CCS of the Supreme Court considered the cassation appeal of the accused against the decision of the appeal court to return the appeal against the decision of the court of first instance regarding the continuation of the preventive measure chosen against him.
The appellate court in its decision referred to the fact that the appeal was filed after the procedural term of appeal expired and the person who filed it did not raise the issue of its renewal.
For his part, the accused indicated that he did not miss the deadline for an appeal, as he filed a complaint on the fifth day from the day of receiving the court decision directly in the pre-trial detention center.You may be interested in the following articles: lawyer consultation, lawyer consultation, analysis of documents, legal analysis of the situation, written consultation, verification of documents by a lawyer, lawyers, documents, lawyer's assistance online, lawyer online, legal opinion, legal opinion of a lawyer, lawyer online
Conclusions of the joint chamber of the CCS of the Supreme Court
OP KKS SC satisfied the cassation appeal of the accused, annulled the decision of the appellate court and appointed a new trial in the appellate court.
The Joint Chamber of the Supreme Court of the Supreme Court emphasized that the practice, when the court of cassation, in the presence of well-founded grounds for annulment of the court decision and appointment of a new trial in the court of appeal, leaves the illegal decision unchanged or cancels it, but does not appoint a new trial in the court of appeal, nullifies the right of the accused to appeal the decision on selection or extension of a preventive measure in the manner provided for by the Criminal Procedure Code of Ukraine, and contrary to the direct prescriptions of the law, creates a legal situation that makes it impossible for the person whose rights have been violated to obtain legal satisfaction for illegal deprivation of liberty.
This may lead to the fact that none of the decisions on the selection or continuation of a preventive measure due to the unjustified return of the appeal will not be reviewed in the appeal procedure and the person, contrary to the procedure established in Articles 331, 395 of the Criminal Procedure Code of Ukraine, will actually be deprived of access to justice ."In view of the prescriptions of Articles 438, 436 of the Criminal Procedure Code of Ukraine, law enforcement approaches that make it impossible to review the decision of a local court (investigating judge) on the selection or continuation of a preventive measure in the form of detention are groundless, in a procedural situation when, in the case of establishing that, that the contested decision of the appellate court was adopted as a result of a significant violation of the requirements of the criminal procedural law, the Court refuses to satisfy the requirements for the cancellation of the contested decision of the appellate court on the return of the appeal and does not appoint a new trial in the court of appeal, as well as in the case when after the cancellation of the decision of the appellate court on the return of the appeal as accepted with a significant violation of the requirements of the criminal procedural law, the Court does not appoint a new trial in the court of appeal," said the OP of the Supreme Court of Appeals.
The joint chamber also stated that another procedure for checking the legality and reasonableness of the contested court decision in the appeal procedure in terms of compliance by the court (investigating judge) with the provisions of the law regarding the continuation (choice) of a preventive measure in the form of detention, including those provided for in Art. 177, 183, 193, 196, 199 of the Criminal Procedure Code of Ukraine, the Criminal Procedure Law does not establish, in particular during the adoption of the sentence, its review in the appeal and cassation procedure.
