This article provides information that can help an individual: independently and without problems to open a criminal case; adopt a plan of action and a decision on “what to do in case of refusal to initiate a criminal case by the National Police body?”.
What to consider if you need to open a criminal case
It’s no secret that many people very often face problems associated with opening a criminal case, in connection with the commission of crimes by third parties against them that fall under the qualification of articles of the Criminal Code of Ukraine.
In principle, there are no particular difficulties in opening a criminal case, because access to justice is guaranteed by the Constitution of Ukraine, including the right to compensation in favor of the affected persons for moral damage and material losses, restoration of lost rights and resumption of the legal situation that existed before the commission of a criminal offense by third parties against the victim.
At the same time, it is obvious that every citizen of Ukraine, as well as persons temporarily residing on the territory of Ukraine, should have access to justice, regardless of race, age, level of education, knowledge in the field of law, etc.
Since the constitution of Ukraine guarantees access to justice, in fact the only real instrument that guarantees the protection of rights and freedoms can be the state. This function is indeed delegated in favor of the state, which is obliged to observe and protect the rights and freedoms of citizens of Ukraine.
The provisions of the Legislation clearly regulate the procedure for opening a criminal case, the procedure for conducting a pre-trial investigation and, of course, the judicial procedure for accusing a person of committing a crime. Specifying the provisions of the Criminal Procedure Code has a number of advantages for ordinary citizens that allow them to protect their legal rights. But these advantages also lead to disadvantages, primarily related to the need for the Victim, as a result of the offense, to have sufficient legal qualifications in order to use them, which often leads to the need to obtain such qualified legal assistance from lawyers, advice from lawyers and other legal assistance.
If you have questions on the topic, you can always ask them to our lawyers:
Bodies conducting pre-trial investigation
To perform these functions by the state, specially authorized bodies have been created that carry out activities in the field of law, including: the Ministry of Internal Affairs (MIA), the National Police, the Security Service of Ukraine (SSU), the Prosecutor’s Office, law enforcement agencies (for example, border troops), the Customs Service , Tax Police and Tax Inspectorate, Executive Service, etc.. These bodies and services that implement the function of the state to protect the rights and freedoms of citizens of Ukraine, to fulfill the goals set by the Constitution of Ukraine, are given the appropriate competence and monopoly on the use of force or legal sanctions against individuals and legal entities, their property and money.
Formally, all bodies are procedurally independent and it is impossible to influence their activities from outside.
To protect citizens from the state itself, there is a system that equalizes the rights of law enforcement agencies and citizens of Ukraine among themselves. Since the state’s monopoly on the use of force creates a certain imbalance in the direction of the state (in the system of relations between citizens and law enforcement agencies), the state independently limits the possibilities for the use of force by creating procedures and regulations, in accordance and only on the basis of which the use of strength.
That is, to regulate the activities of the state, a system of Laws (which are entire codes of laws) and regulations have been created that regulate the procedures on the basis of which state bodies and services operate.
For violations arising in the exercise of their official duties by officials, the Law provides for liability: legal, disciplinary, criminal and administrative, depending on the type of violation and the corpus delicti in it.
Pre-trial investigations by the bodies of the National Police (Investigative bodies) are carried out within the framework of criminal cases, which are conducted in the form of an information base and in documentary form, in order to accumulate information and evidence related to a criminal offense.
The pre-trial investigation bodies themselves have clearly defined functions and a set of legal tools that allow them to effectively implement the goals of the investigation and bring the perpetrator to justice if guilt is established.
The investigating authorities, for political and organizational reasons, often change their name, but in fact they are always in close interaction with the operational authorities, for obvious reasons.
Supervision of pre-trial investigation
Supervision over compliance by public authorities with the law during pre-trial investigations is carried out by the state authorities themselves with special powers and their officials and officials, for example, such as: the Prosecutor’s Office, the Security Service of Ukraine (SSU) and others.
The relevant authorities and services, in case of violation of the Legislation and procedures governing the emerging relations on the part of the investigation (the relevant norms of action and inaction are prescribed in the procedural codes and separate Laws), may hold officials accountable and even open criminal cases against them.
From the point of view of individuals and legal entities as parties to the criminal process (Victims, Accused, Suspects, Witnesses, etc.), a criminal case is actually a confirmation of the fact that bodies with relevant competence have studied, the fact that individuals have committed a crime, and all procedures occurring within the framework of cases are aimed at establishing the relevant facts and the facts of the involvement of persons in the circumstances of the offense.
For the investigating authorities that are investigating a criminal case, a criminal case is essentially accumulated and established facts (materials, facts, evidence, documents, etc.) obtained in the course of studying a certain fact of a crime committed by third parties and conducting investigative and operational actions that mainly arise on the basis of an application by an individual (representative of a legal entity, official) who filed an application for a crime.
Supervision of the pre-trial investigation within the framework of the investigation by the National Police bodies is primarily carried out by the Prosecutor’s Office and the Criminal Court. Handling complaints and petitions to these bodies will have the greatest efficiency and effectiveness in terms of influencing the movement of the criminal case and its interests.
Conducting a pre-trial investigation in a criminal case
It should be taken into account that certain features are inherent in a criminal case, for example, you should know that information about the conduct of a pre-trial investigation is entered into the Unified Register of Pre-trial Investigations (RoPII) indicating data on the investigator, prosecutor or group of prosecutors who conduct the pre-trial investigation and exercise procedural supervision over it, the essence of the case being studied in the process of the criminal case, as well as preliminary legal qualification, which allows you to make an idea about the circumstances of the criminal case.
Without entering the criminal case into the Unified Register of Pre-trial Investigations, the pre-trial investigation is considered not to be conducted, that is, entering information into the Unified Register of Pre-trial Investigations is a confirmation of the existence of a criminal case as such. The provision of other information, as alleged confirmation of the circumstances of the study of the application of the Victim and the adoption of operational measures in relation to him, does not matter and does not correspond to reality.
The purpose of the pre-trial investigation is to establish the facts regarding the alleged crime committed by third parties. At the same time, the main task of a criminal case, as defined in the Criminal Code and the Code of Criminal Procedure, is to bring to justice those guilty of committing a criminal offense to liability (criminal, administrative, legal, etc.).
Bringing the perpetrators of crimes to justice takes place within the framework of the judicial process (only on the basis of a court decision), which is initialized on the basis of facts, materials, evidence established in a criminal case. In order to bring to justice a person who has committed a criminal offense, the investigator and the prosecutor hand in suspicion, accusation, create and submit an indictment to the court. On the basis of the indictment, the criminal case goes to court, where further proceedings take place in which the circumstances, facts, evidence and their procedural significance, legality and sufficiency for accusing a person and convicting a person guilty of committing a criminal offense are established. a specific fact that falls under the qualification of the Criminal Code. If the evidence provided in the case is not sufficient, then the trial may be suspended, sent for revision, or the accused may be fully acquitted by closing the criminal case.
How to open a criminal case
A criminal case is initiated in the presence of the fact of a crime and corpus delicti. Also, a criminal case may be opened on the basis of a special investigation or investigative actions, as a result of which the fact of a crime committed by individuals or the fact of a crime itself was established.
The opening of a criminal case allows, within the framework of the law, to perform investigative actions (gather evidence, interrogate individuals, etc.) aimed at bringing the perpetrators of a criminal or administrative offense to justice, depending on the type of offense. Responsibility can be criminal, administrative, disciplinary, etc.
Criminal cases on issues related to crimes against individuals as well as legal entities are mainly handled by the national police authorities (State Bureau of Investigation). In order to open a criminal case in the national police, it is necessary to submit an appropriate application from an individual who has suffered as a result of an offense from third parties, indicating a description of the circumstances of the crime and the persons involved, the date and fact of the commission of the crime, on the basis of which a specially authorized person of the national police, after studying the materials of the application, will make relevant information in the Unified Register of Pre-trial Investigations.
Application for opening a criminal case
The application for opening a criminal case indicates some personal data, such as: contacts and phone numbers (preferably an email address), the place of residence of an individual or the location of a legal entity, year and date of birth, etc. Regarding the content of the main part of the application for opening a criminal case, the following can be said:
- individuals who do not have special legal knowledge can write a free-form application simply by describing the situation in essence. As stated above, the Constitution of Ukraine guarantees the right of citizens to have access to justice and determines that public authorities, in order to achieve the main goal of their existence, must take the initiative and establish the fact of the existence of a crime committed by third parties in the circumstances specified in the application, open a criminal case and bring to justice responsibility of the perpetrators of the crime. In practice, this basically does not happen, and the problem of detecting the corpus delicti and proving it lies with the Applicant (Victim). At the level of the National Police, very often police officers studying a case (statement) do not find corpus delicti or the fact of its commission. Although, very often the statement indicated by the applicant fully describes the existing crimes and very serious ones in their essence.
- regarding lawyers and attorneys who represent an individual in the investigating authorities, they usually try to indicate in the application articles from the Criminal Code or the Criminal Procedure Code in order to facilitate the task for the authorized person to make a decision to open a criminal case. In turn, these articles and norms make it possible to more clearly define the essence of the case to be considered and explain what the Applicant wants from the investigating authority.
Based on the application, a decision is made to open a criminal case or a refusal to open it. In the case of a positive decision, the relevant information about the investigation is entered into the Unified Register of Pre-trial Investigations, and the Victim is issued a certificate of recognition as the Victim.
Appeal against refusal to open a case
If the necessary legal fact is not found in the statement of the Victim, the National Police (or other body investigating the specified fact) issues a refusal to open a criminal case and conduct an investigation, of which the Applicant is notified.
Very often, authorities issue unmotivated refusals to initiate criminal proceedings. Moreover, in general, such refusals are issued in an improper written form of a refusal (without the corresponding Resolution on the refusal to open a criminal case), in connection with which there are problems associated with appealing in the prescribed manner.
As regards the bodies of the National Police, the Criminal Procedure Code provides for the possibility of appealing against the actions of the investigating authorities regarding the unjustified refusal to initiate a criminal case and not entering information into the Unified Register of Pre-trial Investigations. Among them, there are several main ways to appeal, namely:
- appeal to the court to the judge-investigator to cancel the decision of the investigator who studied the case materials and made a decision to refuse to initiate a criminal case. The judge, when making a decision, may cancel the illegal decision and oblige the investigation to conduct an investigation into the specified fact.
The trial of the investigator judge to appeal the refusal to initiate a criminal case is fast and this is not a long-term trial for many months.
The legal structure and laws governing this method of appeal make it possible to obtain a decision to cancel an illegal decision of an investigator or on an investigator’s obligation to enter information into the Unified Register of Pre-trial Investigations based on a court decision (in the form of a ruling) in just a few days. That is, as a way to solve the problem – appealing to the judge, the investigator is a fairly effective method for initiating a criminal case, corresponding to the interests of the Victim. In particular, the Court does not require significant knowledge and qualifications from the participants who apply to the court, it is enough, in fact, to be able to fill out an application (complaint), explain the situation in essence (indicated in the application) and submit it within 14 days (preferably within 10 -days). Court fee and costs of a complaint – not required; - an appeal to the prosecutor exercising procedural supervision of the investigating authorities in this criminal case. The prosecutor may also cancel the said decision of the investigator and send the materials for reconsideration, or single-handedly oblige to enter statements into the Unified Register of Pre-trial Investigations and conduct an investigation. This method is less effective in practice, since the Prosecutor’s Office does not always intercede for the Victim against the Investigation, and due to the timing of the consideration, it may make it impossible to go to court with another complaint.
- also, in order to appeal against the actions of the investigation on the refusal to initiate a criminal case, you can apply to the higher authorities of the National Police, the Ministry to the higher officials of the Police and other bodies that can appeal against the actions of the investigation and take the investigation into their own hands, to conduct it independently (opening criminal proceedings) on the fact specified in the application, including bringing the investigation that issued the unmotivated refusal to disciplinary responsibility. This way of solving the problem is naturally the least effective.
If you missed the deadline for appealing with a complaint to the court, do not despair, just file a new application for the fact of a criminal offense with changes in the application, if you receive a new refusal, then go to court within the appropriate time limits established by the Criminal Procedure Code.
The listed methods practically guarantee the opening of a criminal case, as indicated, the best way is to go to court.
One should not indulge in illusions that after the opening of a criminal case, then everything will go on as usual. Unfortunately, this is only the beginning of a long journey. You have to fight for your rights and spend a lot of time on it.
Support in criminal proceedings
It should be noted that the procedural representation of individuals and representatives of legal entities in criminal proceedings is carried out by a lawyer. The respective status of a lawyer is determined by law and is spelled out in the Code of Criminal Procedure. Lawyers can also exercise certain representation and provide legal assistance, but their actions are significantly limited by the Law and they are prohibited from filing documents on behalf of an individual, presenting them in court.
For qualified legal assistance, you can always contact the contact details listed on our website, as well as ask a question that interests you.
Achieving justice in a criminal trial is a difficult and thorny path. Each appeal, of course, is personal and quite painful psychologically. The stories of some individuals who applied for legal assistance to us, regarding their attempts to apply to the National Police, remind us of the basic principles of “Darwin’s theory” about the principle “survival of the fittest”.
Thus, people apply to the National Police with a statement on the fact of a crime committed against them by third parties, and after that they receive many refusals on the basis of formal reasons, starting with a refusal to initiate a criminal case and to conduct investigative actions. Then, problems of a procedural nature begin, related to the failure to notify the Victim about refusals in procedural actions, systematic inaction, and others.
Some individuals, believing that the investigation, after entering information into the ERDR on the application, proceeds normally and by itself, do not turn to the investigation at all, which is inactive after it is opened, and some, having learned about the result of the consideration (about refusal), refuse to undertake the idea of attracting the perpetrators of crimes to criminal liability and, in fact, forget about the bodies of the National Police and the possibility of contacting them.
Some of the most morally stable individuals decide to fight against the system and by submitting various applications to various bodies exercising supervision and control over the bodies of the National Police. Basically, such persons achieve results within the framework of a criminal case, but after a while, so do not despair.
Return to content in article:
- What to consider when opening a criminal case
- About the bodies conducting pre-trial investigation
- About supervision of pre-trial investigation
- Regarding the conduct of pre-trial investigation in a criminal case
- How to open a criminal case
- About the application for opening a criminal case
- Appeal against refusal to open a case
- About support in criminal proceedings
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