Judge of the High Anti-Corruption Court of Ukraine Andrii Bitsyuk began the consideration of the prosecution’s petition (NABU and SAPO) to extend investigative terms of the so-called Odesa case, where Odesa mayor Hennadiy Trukhanov is one of the defendants. However, according to the Criminal Procedure Code of Ukraine (further – the Code), this goes beyond the powers of the High Anti-Corruption Court.
This is reported in the Facebook publication of Leshchenko, Doroshenko & Partners Law Firm.
The so-called Odesa case was registered before 2018 when the extension of investigative terms was in the competence of the Prosecutor General. In 2018, the law was amended, handing this power to investigating judges. Nevertheless, the new amends do not apply to the cases submitted to the unified register of pre-trial investigations (further – the Register) before 2018.
"The information concerning the beginning of a pre-trial investigation in the criminal proceeding No. 4201700000001097 was entered into the Register on 10.04.2017... In fact, in this case, the prosecution proposes the investigating judge apply the provisions of the Criminal Code of Ukraine that did not exist when the investigation started. It is prohibited by the Law and is contrary to the practice of the High Anti-Corruption Court of Ukraine," the lawyers stressed.
The lawyers filed a motion to dismiss the proceeding given that it is out of the High Anti-Corruption Court’s jurisdiction.In this case, the terms of the investigation must be extended by the Prosecutor General. The judge rejected the appeal, and the lawyers petitioned for the judge's recusal due to “reasonable doubts about the impartiality of the judge”. The lawyers’ position finds confirmation in precedent – the court ruling dated June 14, 2021 (case No. 991/3864/21; trans. No. 1-ks / 991/3925/21). The panel of judges of the High Anti-Corruption Court Appeals Chamber agreed with the conclusion, a ruling dated June 25, 2021 (case No. 991/3864/21; trans. No. 11-ss / 991/413/21).
Judge Bitsyuk, in turn, scheduled a hearing on 3.12.2021 – failing to wait for the decision on his recusal – and did not notify the defense.
As noted, the procedure for extending the period of pre-trial investigation is defined in paragraph 4, Chapter 24 of the Code (Articles 294-297, from 16.03.18 - articles 294-295-1).
The norms and provisions of this law differentiate two procedures for extending the period of pre-trial investigation and determining the extension authority.
The first procedure was in force until 03.15.2018, with the calculation of the investigation period starting with the date of suspicion notice. In this case, the prosecutor had the authority to extend investigation terms.
The second procedure was introduced based on the Law of Ukraine No. 2147-VIII dated 03.10.2017. The amendments came into force on 16.03.2018, without retroactive effect, hence applying only to cases entered into the Register after the introduction of changes.
With this, the new procedure applies to proceedings entered into the Register starting from March 16, 2018. However, if law violations investigated in the proceeding include information entered both before and after March 15, 2018, the legal procedure is unique and is determined by the date when the first offense was entered into the Register.
Earlier, the First Disciplinary Chamber of the Supreme Council of Justice reprimanded Judge Andrii Bitsyuk for the violation of the legal rights of the case’s sides. The complaint was drawn by a group of judges of the District Administrative Court of Kyiv. The judges accused Bitsyuk of violating the rules for automatic distribution of cases, improper notification of judges and their lawyers of meeting dates, failure to consider applications for recusal, an unreasonable extension of pre-trial investigation periods, unreasonable authorization for search warrants, etc.