Appealing decisions, actions or inactions during the pre-trial investigation

Abstract

The purpose of the study is to analyze the legal regulation and application of mechanisms for appealing decisions, actions or inaction of an investigator, inquirer or prosecutor at the stage of pre-trial investigation in accordance with Chapter 26 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the CPC of Ukraine).

The research methods include a systematic analysis of the norms of the CPC of Ukraine, primarily Articles 303–308, a comparative analysis of the provisions of the Constitution of Ukraine and the practice of the European Court of Human Rights regarding the right to effective judicial protection under Articles 6, 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as a generalization of the legal positions of the Supreme Court of Ukraine.

The results of the study indicate the exhaustive nature of the list of appealed decisions, actions or inactions, defined by Part One of Article 303 of the Criminal Procedure Code of Ukraine, including failure to enter information into the Unified Register of Pre-Trial Investigations (hereinafter referred to as the Unified Register of Pre-Trial Investigations), failure to return temporarily seized property, failure to perform procedural actions within the established time limit, suspension or closure of proceedings, refusal to recognize a victim, refusal to satisfy requests for investigative actions, etc. The Supreme Court consistently indicates that the investigating judge exercises exclusive control over compliance with the rights of the participants in the proceedings, cancels illegal resolutions and obliges to perform actions stipulated by the Criminal Procedure Code, without interfering with the discretionary powers of the investigator or prosecutor and without replacing their procedural independence. The Joint Chamber of the Cassation Criminal Court of the Supreme Court (hereinafter referred to as the CCC of the Supreme Court) emphasizes the impossibility of appealing the majority of the decisions of the investigating judge, except in exhaustively defined cases. In contrast, the case law of the European Court of Human Rights (hereinafter referred to as the ECHR) emphasizes the need for effective judicial control over the actions of pre-trial investigation bodies to prevent arbitrary restrictions on rights, ensure the independence and efficiency of the investigation, as well as the availability of remedies against excessive length of proceedings or inaction.

The study’s findings indicate that the Ukrainian appeal mechanism complies with the standards of the Convention, provided that the principles of accessibility, timeliness and completeness of judicial review of complaints are observed. In turn, problems were identified in interpreting the limits of judicial control, which sometimes leads to restrictions on the rights of applicants, and the need for further harmonization of national practice with the requirements of the ECHR regarding the effectiveness of legal remedies.