Vyacheslav Zoma
Head of Practice of Criminal Procedure and Business Protection of NOBILI Law Firm

Crib for victims – the third part

This article concludes the trilogy of professional advice for victims on how to act if a crime has been committed against you. That is, when you became a victim of a crime. I would like to remind you once again that in accordance with Article 55 of the Criminal Procedure Code of Ukraine, the victim in our case is a natural person who has suffered moral, physical or property damage as a result of a criminal offense. We do not consider the cases when the victim is a legal entity in this article.
Congratulations, if you managed to successfully overcome the first two steps – you survived and managed to file a criminal offense, which was registered in the Unified Register of Pre-trial Investigations. But the next quest is how to establish effective interaction with the investigator so that the investigation is conducted effectively and the perpetrators are prosecuted and you are compensated for the damage caused.
There is an old Swedish proverb that says you can bring a horse to the water, but you can’t make it drink. This proverb very aptly reflects the current state of affairs. Because if the investigator does not want to do his job, it is extremely difficult or even impossible to force him to perform his duties. Let’s find out why.
Of course, the basis is the law. Namely, Article 303 of the CPC of Ukraine, the application of which has become very widespread precisely because of the right to appeal the actions of the investigator, prosecutor to the investigating judge. And most procedural decisions can be challenged in court. But the jurisprudence has clearly defined that the notification of suspicion is exclusively a right and a decision made exclusively by the investigator in the presence of internal conviction on the basis of the evidence gathered. At the same time, the prosecutor must still approve the report of suspicion to the investigator.
That is, an exhaustive list of decisions, actions or omissions of the investigator or prosecutor that can be appealed during the pre-trial investigation, defined by Part 1 of Article 303 of the CPC of Ukraine. And the opportunity to challenge the inaction of the investigator in the form of no notice of suspicion is not provided. Therefore, the investigating judge will not consider them at all! There is no such remedy at the legislative level. And perhaps rightly so – because the state body must effectively perform its function and protect its citizens and guests of our country from crime!
Moreover, the current Code of Criminal Procedure of Ukraine provides for the possibility of appealing the very notification of suspicion of criminal proceedings and the investigating judge may revoke it if there are proper grounds. The grounds for revocation may be – a notice of suspicion served before the entry of data on the crime in the Unified Register of pre-trial investigations, violation of the procedural procedure for serving a notice of suspicion; lack of strong evidence to substantiate the suspicion, violation of the pre-trial investigation, delivery of a notice of suspicion by an unauthorized person.
I will dwell separately on the compensation for damages caused by the crime. From my own practice, I almost never met investigators who would be really interested in compensating for the damage caused by the crime and seizing the property of the suspects. Although Article 170 of the CPC of Ukraine obliges them to search for property and seize the suspect’s property in order to compensate for the damage caused by the criminal offense. However, in practice this does not happen in most cases. And when the culprits are not identified – it is impossible for obvious reasons. There are some difficulties with filing a civil lawsuit. Because a person is not able to compose and substantiate it on his own.

 

And in his absence, there are no grounds for arrest. In the interests of minors, incapacitated, partially incapacitated persons, a lawsuit may be filed by the prosecutor.
As an option to establish more effective interaction with the investigator may be an appeal to his head – the head of the investigative department, the head of the prosecutor’s office, which provides procedural guidance, the leadership of a higher body – such as the regional police or prosecutor’s office. To do this, you must have documents on the criminal proceedings, its number in the ERDR, the name of the investigator, and be able to clearly state the circumstances of the case. At the same time, I advise you to go to the reception with a ready-made written complaint or appeal. Because the result of your oral address will most likely be exclusively your impressions! It can also be effective to appeal to the people’s deputies of Ukraine, to the media. In that case, if as a result a corresponding deputy’s appeal to the law enforcement body or a video report or publication in the media about the circumstances of the case will be made. Collective appeals are also important, it will be even more effective when several people come to the personal reception of the head of the law enforcement agency, and it is even better to come together with the media.
Of course, if financially possible, you should seek legal assistance from a lawyer. Because without experience it is quite difficult to correctly state all the circumstances of the crime and professionally build relationships with law enforcement officers, especially under the influence of all these circumstances. It is necessary to understand the intricacies of the investigation and collection of evidence in various types of crimes. Because the tactics of their investigation and collection of evidence are radically different. And due to incompetence – evidence may be lost, not properly recorded. Which can lead to impunity for the perpetrators and as a consequence of the closure of criminal proceedings.
I wish you success again! And remember – this article is not a universal algorithm for all possible actions and cases, but it can be useful to you.