+ Word must be in search result. - Words must not be in search result. * Word start/end on characters before/after symbol. ""Words in quotes will be searched as phrase.

 

The prosecutor’s office has lost powers of pre-trial investigation of crimes prosecuted by the State Bureau of Investigations

04 December, 2017 Newsletters

It is commonly known that functions of the prosecutor’s office were substantially changed due to the constitutional reform. Thus, amended art. 131-1 of the Constitution of Ukraine stipulates that the prosecutor’s office performs:

  1. public prosecution in court;
  2. organization and procedural guidance over the pre-trial investigation, resolution of other issues during criminal proceedings in accordance with the law, supervision over covert and other investigation actions of the law-enforcement agencies;
  3. representation of the state interests in court in exceptional cases and under the procedure, prescribed by the law.

Hence, the prosecutor’s office lost the functions of general supervision, representation of citizens in court and supervision over the observance of laws in the course of execution of court decisions in criminal cases, as well as in application of other coercive measures related to the restriction of personal freedom of citizens, which it had had before the constitutional reform.

It should be noted that until recently, the prosecutor’s office also carried out a pre-trial investigation of criminal offenses, which are in the jurisdiction of the State Bureau of Investigations (hereinafter – the SBI). However, these functions have been lost since November 20, 2017.

It is noted in para. 4 of the Transitional provisions of the Law of Ukraine “On the Prosecutor’s Office” that

“Investigators of the Prosecutor’s Office shall carry out pre-trial investigations according to the procedures established by the Criminal Procedure Code of Ukraine until the State Bureau of Investigation commences its activity but no longer than five years after the Criminal Procedure Code of Ukraine comes into effect”.

Moreover, subpara. 2 of para. 1 of the Transitional provisions of the Criminal Procedure Code of Ukraine (hereinafter – the CPC of Ukraine) prescribes that provisions of para. 4 of art. 216 of the CPC of Ukraine (which actually designate investigative jurisdiction of the SBI)

“come into force from the date of commencement of work of the State Investigation Bureau of Ukraine (but not later than five years after the entry into force of the CPC of Ukraine)”.

The new CPC of Ukraine came into force on November 19, 2012. Consequently, since November 20, 2017, the 5-year period set in the abovementioned provisions expired, and the powers to conduct pre-trial investigation of cases investigated by the SBI granted to the prosecutor’s office formally ceased.

At the same time, it should be noted that para. 9 of Transitional provisions of the Constitution of Ukraine provide slightly different provision regarding the termination of powers of pre-trial investigation granted to the prosecutor’s office. Thus, according to the mentioned paragraph

“The prosecutor’s office shall, in accordance with effective laws, continue to perform the function of the pre-trial investigation, until the formation of a system of state bodies, to which the relevant functions will be transferred according to the law…”

That is, in contrast to para. 4 of the Transitional provisions of the Law of Ukraine “On the Prosecutor’s Office”, which, besides the attachment to the commencement of the activity of the SBI, also limited the period for the prosecutor’s office to continue the pre-trial investigation to 5 years, there is no restriction for 5 years in para. 9 of the Transitional provisions of the Constitution of Ukraine. It turns out that in accordance with the Constitution of Ukraine, these powers are retained by the prosecutor’s office until the commencement of work of the SBI (that is, even after the expiration of 5 years).

Therefore, if we read those provisions literally, we can argue about the collision of two norms which determine the period of termination of powers to conduct pre-trial investigation. According to the Constitution of Ukraine, these powers remain until the start of the SBI’s activity, and in accordance with the Law of Ukraine “On the Prosecutor’s Office” they are retained until the start of the SBI”s activity, but not longer than 5 years after the entry into force of the CPC of Ukraine.

At the same time, it should be noted that in the Constitution of Ukraine, the Law of Ukraine “On the Prosecutor’s Office” and the CPC of Ukraine, the termination of powers of pre-trial investigation temporarily granted to the prosecutor’s offices is tied to the beginning of the activities of the SBI and not its formal creation.

On March 02, 2016 the High Specialized Court of Ukraine for Civil and Criminal Cases on its official website also clarified that the entry into force of the provisions of para. 4 of art. 216 of the CPC of Ukraine is connected not with the moment when the law regulating the activities of the SBI as a state institution enters into force, but rather with the moment when the latter will start exercising functions of the pre-trial investigation1.

The Law of Ukraine “On the State Bureau of Investigations” came into force on March 03, 2016, the SBI itself was established on February 29, 2016 by the relevant Decree of the Cabinet of Ministers of Ukraine No. 127 “On Establishment of the State Bureau of Investigations”. But for a period of one year and eight months, the personal composition of the SBI has not been formed, and the SBI has not officially started its work. Paragraph 20.1 of the Transitional provisions of the CPC of Ukraine stipulates that the beginning of the activities of the SBI must be formally announced by its head by way of publication in the newspaper “Government Courier”2.

Therefore, since November 20, 2017, the prosecutor’s office has lost the powers to conduct pre-trial investigation of criminal offenses, which are in the jurisdiction of the SBI. This means that criminal proceedings initiated after that date cannot be investigated by the prosecutor’s office. Starting from that same date the investigating authorities of the prosecutor’s office lost the right to bear arms (para. 11 of the Law of Ukraine “On the Prosecutor’s Office”).

However, para. 4 of the Transitional provisions of the Law of Ukraine “On the State Bureau of Investigations” provides a specific transitional period of up to 2 years for the completion of pre-trial investigations, commenced by the prosecutor’s office before November 20, 2017: “

“… Criminal proceedings, which, prior to the commencement of the activities of the State Bureau of Investigations, were initiated by the investigating authorities of the prosecutor’s office and are at the stage of pre-trial investigation, continue to be investigated by the investigators of the prosecutor’s office until the end of the pre-trial investigation, but not longer than two years.”

The similar provisions are prescribed in para. 1 of Transitional provisions of the CPC of Ukraine:

“Before the day of entry into force of provisions of para. 4 of art. 216 of this Code, powers of pre-trial investigation of the criminal offences, specified in such provisions, shall be exercised by investigators of prosecutor’s offices, which has the powers of the investigators as established by this Code with regard to the crimes, stipulated by para. 4 of art. 216 of this Code. After the day of entry into force of provisions of para. 4 of art. 216 of this Code [as was noted before, that is November 20, 2017] criminal proceedings, commenced by the investigators of the prosecutors’ offices continue to be investigated by investigators of prosecutors’ offices, which has the powers of the investigators as established by this Code, until the completion of the pre-trial investigation, but not longer than two years”.

After expiry of this two-year period criminal proceedings shall be transferred to the SBI in a three months period, notwithstanding whether the pre-trial investigation is completed or not.

It should be additionally noted that on November 20, 2017 the termination of the powers of the prosecutor’s office to investigate crimes which fall under the jurisdiction of the SBI, was officially announced on the website of the Prosecutor General’s Office of Ukraine:

“…At present, the investigators of the prosecutor’s office have the right to continue the prosecution of criminal proceedings initiated by them, which come under the jurisdiction of the SBI, but not more than for two years. At the same time, the investigators of the prosecutor’s office are not entitled to investigate new criminal proceedings, that is, those entered into the Unified Register of Pre-trial Investigations (URPI) after November 20, 2017…

Taking into account that as of now the SBI has not started its work yet, and the prosecutor’s office has lost the powers to investigate the crimes, which come under jurisdiction of the SBI, the problem can be resolved by the heads of the prosecutor’s offices through exercise of the right to assign the conduct of pre-trial investigation to another agency of pre-trial investigation under para. 5 of art. 36 of the CPC of Ukraine (on the grounds of ineffective pre-trial investigation by the SBI since it has not started its work), and by the supervisors of the pre-trial investigations – the right to personally conduct investigatory (detective) actions, covert investigatory (detective) actions or other procedural actions (subpara. 4 para. 1 of art. 36 of the CPC of Ukraine)”3.

Although such “recommendations” raise a lot of questions, the General Prosecutor’s Office of Ukraine confirms in the mentioned report that the prosecutor’s offices have lost their powers in relation to the pre-trial investigation of crimes, the information about which is entered in the URPI after November 20, 2017.

At the same time, it should be noted that all abovementioned concerns the powers of pre-trial investigation of crimes which come under the jurisdiction of the SBI.

According to art. 5 of the Law of Ukraine “On the State Bureau of Investigations” and para. 4 of art. 216 of the CPC of Ukraine the following crimes are under the jurisdiction of the investigators of the SBI:

  1. crimes, committed by officials occupying especially responsible positions according to para. 1 of art. 9 of the Law of Ukraine “On Civil Service”, persons whose positions fall under the first – third category of the civil service, judges and staff members of law-enforcement agencies, unless these crimes fall under the jurisdiction of the detectives of the National Anti-Corruption Bureau of Ukraine (hereinafter – NABU);
  2. crimes, committed by the officials of the NABU, Deputy Prosecutor General – the Head or the other prosecutors of the Specialized Anti-Corruption Prosecutor’s Office unless the pre-trial investigation of these crimes falls under the jurisdiction of the NABU;
  3. crimes against the established order of military service (war crimes), except those stipulated in art. 422 of the Criminal Code of Ukraine.

Therefore, the prosecutor’s office has lost the powers to conduct a pre-trial investigation of crimes, which come under the jurisdiction of the SBI and the information regarding which was entered in the URPI after November 20, 2017; and in proceedings, which were started before that date, the pre-trial investigation is to completed by the prosecutor’s office, but not longer than for 2 years.

The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.

Footnotes:

1http://sc.gov.ua/ua/golovna_storinka/vssu_nadav_roz%E2%80%99jasnennja_cshodo_pitannja_pidslidnosti_sprav_derzhavnogo_bjuro_rozsliduvan_ukrajini.html.

2Para. 20.1 of Transitional provisions of the CPC of Ukraine stipulates “temporarily, but not later than the day of the commencement of the activities of the State Bureau of Investigations (publication in the newspaper “Governmental Courier” of the corresponding notice by its head)”.

3http://www.gp.gov.ua/ua/news.html?_m=publications&_c=view&_t=rec&id=219365.

Kind regards,

© WTS Consulting LLC, 2017

Views 3109

SIMILAR POSTS

#Exit Capital Tax and slavery 19 March, 2018    951

#Exit Capital Tax in simple words 14 March, 2018    643

Comment of Alexander Minin to article on “Trap for investor. Does Ukraine need the exit capital tax?” 06 March, 2018    221

30 % adjustment under subpara. 140.5.4 of the Tax Code of Ukraine from now on will cover one more kind of transactions. What do we think about practical application of new rules? 22 January, 2018    518

The list of legal forms of non-residents who do not pay income tax (corporate tax), including tax on income received outside the state of such non-residents’ registration, and /or are not tax residents of the state in which they are registered as legal entities 22 January, 2018    404

The list of states (territories), which meet the criteria established in subsection 39.2.1.2 of subparagraph 39.2.1 of paragraph 39.2 of Article 39 of the Tax Code of Ukraine 22 January, 2018    298

Thresholds of criminal liability under Art. 212 of the Criminal Code of Ukraine starting from January 01, 2018 17 January, 2018    8435

Innovations in the financial area… Ukraine can still be a leader 31 October, 2017    348

Criminal liability for rulemaking, which leads to decrease in tax revenues 13 October, 2017    944

Criminal proceedings for tax evasion in the first half of 2017: “ghost” of tax police and “efficiency” of the court 27 September, 2017    1561

Verdicts in criminal proceedings for tax evasion in the first half of 2017 26 September, 2017    605

Pre-investigation on the tax evasion (Art. 212 of the Criminal Code of Ukraine): is it now only about the deputies and the authorities? 21 August, 2017    2696

Comment