Yesterday, the panel of the HACC Appeals Chamber consisting of judges Hlotov, Pavlyshyn, Kaluhina, Chornenka, Nykyforov referred the case of Hladkovskyi Jr. to the Solomianskyi District Court.
What preceded this decision?
The first instance appealed to the HACC Appeals Chamber at the request of Hladkovskyi’s defense to determine the jurisdiction of this case.
The defense insisted that the case materials be sent to the Solomianskyi District Court. After all, according to the Criminal Procedure Code of Ukraine, such a crime does not belong to the jurisdiction of NABU detectives.
In addition, according to the defense, Hladkovskyi is not an official. The defenders also pointed out that the materials of the proceedings do not contain the decision of the NABU director, agreed with the SAPO prosecutor, on the possibility of investigating the case, which is referred to the jurisdiction of other investigative bodies.
In turn, the prosecutor noted that a criminal offense committed against an official is under investigation by the NABU, and therefore belongs to the jurisdiction of the HACC.
In addition, the prosecution asked the court to take into account the fact that the materials on Hladkovskyi were allocated from the materials of another case under investigation by the NABU. At the same time, the decision on the allocation of this criminal proceeding states that the implementation of the pre-trial investigation is entrusted to NABU detectives. In addition, the prosecutor emphasized the fact that the criminal offense caused serious consequences for protected state interests, as a result of which the state budget lost more than UAH 49 mln.
What does the law say?
Indeed, the prosecutor who oversees pre-trial investigations conducted by NABU detectives may, by his decision, refer the case to the jurisdiction of NABU detectives. This is possible if the relevant criminal offense has caused or could have caused grave consequences.
However, the judges of the Appeals Chamber found that the prosecutor’s resolution does not contain the prosecutor’s decision to assign this case to the jurisdiction of NABU detectives. From its content, it can be seen that it concerns exclusively the issue of allocating materials of the pre-trial investigation.
That is, the court concluded that there was no documented decision to refer the Hladkovskyi case to the jurisdiction of the NABU. Therefore, in this case, it is really impossible to apply the above provision of the code of Criminal Procedure.
It is worth considering that the criminal process is characterized by an extraordinary level of formalization. On the one hand, this significantly slows down the course of the investigation, but in the strategic dimension it is an additional safeguard against violation by the state of the rights and legitimate interests of a person.
The likely absence of a decision to determine jurisdiction completely deprives the NABU of the right to conduct a pre-trial investigation of this case. Moreover, the ECHR and the Supreme Court have repeatedly noted in their decisions that the implementation of a pre-trial investigation by a body that is not authorized to do so is a significant violation of human rights and the standards of Criminal Procedure, which results in the recognition of the collected evidence as inadmissible.