On September 16, the Criminal Court of Cassation, as part of the Supreme Court, overturned the verdict of HACC and the decision of the HACC Appeals Chamber, which sentenced Volodymyr Ponomarenko, ex-judge of the Cherkasy oblast Court of Appeal to 2 years in prison. The relevant Resolution of the panel was published in the Unified State Register of Court Decisions.
Transparency International Ukraine has previously taken the position that the Supreme Court’s unjustified overturn of HACC decisions could lead to a serious crisis in the work of anti-corruption infrastructure bodies.
On the reasons for the cassation decision
The Criminal Procedural Code envisages certain safety filters that restrict the activity of pre-trial investigation bodies and clearly delineate the perimeter of their activity. One of these safeguards is the term of pre-trial investigation.
In accordance with Article 219 of the Criminal Procedural Code, the term of pre-trial investigation is calculated from the moment of entering information about a criminal offense in the Unified Register of Pre-Trial Investigations until the day of applying to the court with an indictment.
Article 284, part 1, clause 10 of the Criminal Procedural Code provides that the criminal proceedings are closed if, after serving a person with suspicion, the time frames of pre-trial investigation have expired. Moreover, the Criminal Procedural Code stipulates that the time frame of pre-trial investigation that has expired is not subject to resumption, but the time frames can be extended by a court decision.
The ruling of the Supreme Court analyzes the time frames of the pre-trial investigation in the Ponomarenko case:
- August 16, 2018 — date of opening of criminal proceedings;
- August 29, 2018 — serving Ponomarenko with suspicion;
- January 24, 2019 — Solomianskyi District Court of Kyiv extends the investigation period until February 27, 2019;
- February 21, 2019 — the defense is given an opportunity to get acquainted with the case materials. It is worth noting that in accordance with Article 219, part 5 of the Criminal Procedural Code of Ukraine, the period of familiarization with the materials of pre-trial investigation by the parties to criminal proceedings in accordance with the procedure envisaged in Article 290 of this Code is not included in the time frames provided for in this article. That is, the time frame of the pre-trial investigation was interrupted, and the prosecution had 6 days left.
- March 27, 2019 — familiarization with the case materials is completed, as the court notes in the ruling. According to the rules of Article 115 of the Criminal Procedural Code of Ukraine, when calculating time frames in days and months, the day from which the time frame begins is not taken into account. Actually, we start calculating 6 days from March 28, so, the last day of the pre-trial investigation falls on April 2, 2019, when the indictment was drawn up and agreed upon.
However, drawing up and approving an indictment is not equal to referring it (actually) to the court. According to the ruling, this referring took place on April 5. This happened beyond the time frames of the pre-trial investigation, which is a violation of the procedural law and one of the grounds for changing the decision in accordance with Article 433, part 1 of the Criminal Procedural Code of Ukraine.
Given this, it is worth noting that the appellant, along with their position on the time frame, also denied that Ponomarenko had committed a criminal offense under Article 369-2, part 3 of the Criminal Code of Ukraine (abuse of influence). However, the Supreme Court did not in any way object to the valid conclusions of the HACC and the HACC Appeals Chamber regarding the fact and essence of the act committed.
The court of cassation instance overturned the verdict on the non-rehabilitative ground. Thus, the practice of the same Supreme Court comes to the conclusion that rehabilitative grounds for closing criminal proceedings take place in the case when a person has not committed an illegal act provided for by criminal law, and, as a result, has the right to rehabilitation. Rehabilitative grounds include those that indicate the complete innocence of a person in committing a criminal offense that they are charged with, and entail the removal of suspicion, restoration of a good name, dignity, and reputation. If the court establishes the presence of elements of a criminal offense in the actions of a person, then there are no grounds for their rehabilitation.
That is, from the point of view of substantive and procedural law, Ponomarenko is rehabilitated. Nevertheless, the conclusion on his guilt, as a logical result of the analysis of all the evidence submitted (the legal nature of which also did not raise doubts with the cassation), was not overturned by the Supreme Court.
The position of Ihor Semak, SAPO prosecutor, who raised an important topic regarding the legal nature of such a phenomenon as familiarizing the defense with the case materials, is also interesting.
Indeed, in judicial practice, there are two cardinal approaches to familiarization: stage and formal. The stage approach defines familiarization of materials as a substage of the criminal process, that is, a comprehensive and indivisible period of time that begins from the moment of written notification of the completion of the pre-trial investigation and granting access to the materials.
The formal approach to familiarization is antonymic to the stage one; here, familiarization with the case materials is defined as a set of actions of the defense on actual (physical) familiarization with the case. Thus, according to this approach, the period of pre-trial investigation is interrupted for the duration of each of the facts of familiarization with the materials.
Still, in our opinion, the legislator provides precisely the stage approach to determining the stage, which is confirmed by a logical and philological interpretation of the provision, where familiarization is defined as an act of action in the singular.
Thus, it is more expedient to recognize familiarization with the materials of criminal proceedings precisely as a substage that interrupts the course of the pre-trial investigation period and ends with a logical familiarization by the defense with the full volume of materials. The Criminal Procedural Code also envisages a mechanism for establishing a clear framework for familiarization by the court, but such a motion can only be filed within the pre-trial investigation period.
By paragraph 5.31 of the HACC verdict in this case, the court records that the defense party was granted access to the case materials, but the defense party did not exercise this right in full.
Based on this, the Supreme Court formally took the last act of familiarization with the case materials for the date of completion of familiarization with the case materials. The fact that the prosecutor actually drew up and agreed upon the indictment on the 6th day (April 2) of the remaining term came to the rescue in motivating the court’s decision, and referred it on April 5, which the Supreme Court recognized as a formal omission of the deadline.
It is necessary to draw the attention of the legal environment to the misregulation of determining the date of completion of familiarization with the case materials. Thus, the formal approach to determining the legal nature of familiarization with the case materials is considered incorrect. Within this framework, the stage approach is considered appropriate.
However, the problem with the stage approach is the lack of a logical point, a fact to which the completion of such a stage is tied. Indeed, there is a tool for judicial restriction of the time frame for familiarization with the case materials, but such a tool can only be used within the time frame of a pre-trial investigation. Using the example of the above situation, this could be implemented within February 22-27, 2019, since all procedurally significant actions must be performed only within the procedural time frame.
Therefore, there is inconsistency in the procedural legislation, when there is a start date for interrupting the time frame, but the moment of such completion is not clearly regulated. Thus, a situation arises in which, if we consider March 27 as the day of completion of familiarization with the case materials, the filing of such a motion is illogical (since the stage is completed). And if we apply the formal (physical) approach, then the time frame has long expired and the defense got acquainted just out of curiosity.
In the above case, the Supreme Court created a new legal position, the point of which was that the court of cassation instance concluded that the stage of familiarization with the case materials was completed, when there was no real familiarization with the entire scope of the case. The court noted that the protocol of familiarization with the materials was signed without any comments or objections. This means that the court came to the conclusion that the familiarization stage was fully completed, from which it calculated the end date of the pre-trial investigation, which was April 2.
Such a position of the court is a “time bomb,” when the absence of a reservation of the defense about the desire to get acquainted with the full volume of materials can be interpreted as a refusal to get acquainted with the full volume of materials. In the future, this may be interpreted by prosecutors as the completion of the stage of familiarization with the case materials, followed by applying to the court with an indictment. In other words, the Supreme Court has set a precedent that potentially unbalances the final approaches to calculating the time frames of pre-trial investigation.
The actions of the prosecutor, namely the approval of the act on the last day of the six-day remainder of the time frame, can also be perceived as confirmation of the fact that the defense has read the materials. Referring the indictment on April 5 allowed the Supreme Court to justify its decision.
Summarizing the above, we have a contradictory decision of the Supreme Court, which was formally written out correctly, but raised a discussion about approaches to familiarization with case materials and pointed out a gap that could potentially change the established landscape of judicial practice in the future. Given this, the issue definitely needs to be discussed in a professional environment.