Whether the decision of the investigating judge on the cancellation of the attachment of property or on the refusal of such cancellation is subject to appeal

Abstract

Once again, the Supreme Court and scientists were asked the question of which of the decisions of the investigating judge are subject to an appeal, and which are not subject to such an appeal in the course of the pre-trial investigation. Today, the immediate object of our research, as well as that of the joint chamber of the Criminal Court of Cassation as part of the Supreme Court, is the decision of the investigating judge to cancel the seizure of property or to refuse it. The positions of the chambers of the Supreme Court are not the same, which is illustrated by the decision of the joint chamber of the Supreme Court of Justice dated February 19, 2019. in case No. 569/17036/18 (proceedings No. 51-598kmo19) and the panel of judges of the First Judicial Chamber of the CCS of the Supreme Court dated March 14, 2023. in case No. 760/5570/22 (proceedings No. 51-3149km22), etc. The research aims to find out whether in this particular case it is an implicit interpretation of the provisions of Art. Art. 174, 309 of the Criminal Procedure Code of Ukraine, which gives grounds for the statement that the decision of the investigating judge to cancel the seizure of property is subject to appeal or that the list of parts 1 and 2 of Article 309 of the Criminal Procedure Code of Ukraine is exhaustive and is not subject to extended interpretation. The applied formal-logical method, deductive reasoning and discursive thinking resulted in a scientific conclusion that, during the pre-trial investigation, the decision of the investigating judge to cancel the seizure of property is not subject to appeal, as it is clearly provided for by criminal procedural norms and is not included by the legislator in the exhaustive list parts 1 and 2 of article 309 of the Criminal Procedure Code of Ukraine. The article substantiates that in such a procedural situation, during the preparatory proceedings in court, the participants have the right to use the procedural opportunities provided for in Part 3 of Article 309 of the Criminal Procedure Code of Ukraine. With the considered legislative state of affairs, aware of the complexity of those procedural challenges that take place in the pre-trial investigation and follow from the need to ensure and respect the rights of its participants, the legislator is once again called upon to hear the voice of those colleagues-proceduralists who, for ten years, stating a wrong legislative approach in constructing Article 309 of the Criminal Procedure Code of Ukraine and other similar norms, call to change it or at least expand the list, which is regulated by parts 1 and 2 of Article 309 of the Criminal Procedure Code of Ukraine.