If an investigator, prosecutor closes criminal proceedings under procedure set out in the CPC of Ukraine, any interim measures, such as property seizure, are automatically cancelled by virtue of Article 132(4) of the Code - SC CCC JC

On the application of the provision provided for in subpara. 1, Part 4, Article 132 of the Criminal Procedural Code of Ukraine

If the investigator or prosecutor closes the criminal proceedings in accordance with the procedure provided for by the Criminal Procedural Code of Ukraine, the security measures for criminal proceedings, including the seizure of property, cease to be effective by virtue of the direct instruction of Part 4 of Article 132 of the Criminal Procedural Code of Ukraine.

On application of the provisions provided for in Article 309, Part 4 of Article 399 of the Criminal Procedural Code of Ukraine in their interrelation with the provisions of Articles 170-174 of the Criminal Procedural Code of Ukraine

The decision of the investigating judge to revoke or refuse to revoke the confiscation of property, issued after the conclusion of criminal proceedings, is not provided for by the Criminal Procedural Code of Ukraine, so the appellate court has no right to refuse to review the legality of such a decision, referring to the provisions of Part 4 of Article 399 and Article 309 of the Criminal Procedural Code of Ukraine.

The right to appeal against such a court decision is subject to the provisions of para. 17, Part 1, Art. 7 and Part 1, Art. 24 of the Criminal Procedural Code of Ukraine, Articles 124 and 129 of the Constitution of Ukraine.

On application of the provision provided for in Part 9 of Article 100 of the Criminal Procedural Code of Ukraine in conjunction with the provisions provided for in Articles 171-174 of the Criminal Procedural Code of Ukraine

A court decision issued by an investigator or prosecutor after the conclusion of criminal proceedings in accordance with Part 9 of Article 100 of the Criminal Procedural Code of Ukraine, which resolves the issue of the disposition of material evidence and documents, may be appealed both on appeal and in cassation.

The ruling issued by the investigating judge in accordance with Part 9 of Article 100 of the Criminal Procedural Code of Ukraine on the disposition of material evidence and documents may be appealed on appeal on the basis of paragraph 17 of Part 1 of Article 7 and Part 1 of Article 24 of the Criminal Procedural Code of Ukraine as not provided for by the Criminal Procedural Code of Ukraine.

These conclusions were reached by the Joint Chamber of the Criminal Cassation Court of the Supreme Court.

The Joint Chamber of the Criminal Cassation Court of the Supreme Court pointed out that the peremptory provisions of Part 4 of Article 132 of the Criminal Procedural Code of Ukraine are the rules according to which the Criminal Procedural Code of Ukraine establishes the procedure for terminating the seizure of property after the closure of criminal proceedings and the application of which, in conjunction with the provisions of Part 1 of Article 170 of this Code, removes the restrictions applied during the pre-trial investigation.

Thus, if the criminal proceedings are terminated by a decision of the investigator or prosecutor, the decision of the investigating judge to confiscate property (material evidence) ceases to be effective, and thus the deprivation of the right to alienate, dispose of and/or use the relevant property applied by the investigating judge also ceases to be effective. After the investigator closes the criminal proceedings in accordance with the procedure provided for by law, the physical evidence is in the possession of the pre-trial investigation body unless there is a procedural decision to seize the property.

The Joint Chamber of the Criminal Cassation Court of the Supreme Court also stated that since the decision of the investigating judge to cancel the seizure of property, taken after the investigator had closed the criminal proceedings, is not provided for by the Criminal Procedural Code, the appellate court is deprived of the right to refuse to review the legality of such a decision, referring to the provisions of Part 4 of Article 399 of the Criminal Procedural Code of Ukraine.

The provisions of Articles 174 and 309 of the Criminal Procedural Code of Ukraine contain imperatives to be applied during criminal proceedings, and therefore the prohibition to appeal against the decision of the investigating judge to cancel the seizure of property established by them applies only to those stages of criminal proceedings that are defined by the provisions of paragraphs 5, 24 of part 1 of Article 3 of the Criminal Procedural Code of Ukraine. At the same time Art. 309 of the Criminal Procedural Code of Ukraine does not provide for the impossibility or prohibition of appealing against the decisions of investigating judges to cancel the seizure of property taken upon the corresponding application made after the end of the pre-trial investigation as a result of the termination of criminal proceedings by the pre-trial investigation body (investigator) in accordance with the procedure provided by law, in particular, on the basis of Part 1, paragraph 2 of Art. 284 of the Criminal Procedural Code of Ukraine. This right is ensured by the provisions of Articles 124, 129 of the Constitution of Ukraine, paragraph 17 of Part 1 of Article 7 and Part 1 of Article 24 of the Criminal Procedural Code of Ukraine.

In addition, the Joint Chamber drew attention to the provisions of Part 9 of Article 100 of the Criminal Procedural Code of Ukraine, which stipulates that in the event of termination of criminal proceedings by the investigator or prosecutor, the issue of special confiscation and the disposition of material evidence and documents shall be resolved by a court decision on the basis of a relevant application considered in accordance with Articles 171-174 of this Code, but does not determine the procedure for appealing against a court decision taken as a result of consideration of this application. The reference in Part 9 of Article 100 of the Criminal Procedural Code of Ukraine to the fact that the application is considered in accordance with Articles 171-174 of the Criminal Procedural Code of Ukraine should be interpreted as indicating that the court has the relevant authority to decide on the disposition of physical evidence and documents following such consideration.

The provisions of the procedural law do not directly regulate the possibility of appealing against a court decision on the basis of an application to decide on the disposition of physical evidence on appeal, but they do not prohibit such an appeal in order to protect against arbitrary restrictions on ownership or possession.

Since Article 374 of the Criminal Procedural Code of Ukraine provides that in case of a verdict, the court is obliged to resolve the issue of physical evidence and documents, such a decision may be appealed both on appeal and in cassation. Therefore, in the opinion of the Joint Chamber, a similar right should also be granted to a person who is the owner or possessor of property and whose right to free disposal, use or possession of that property was restricted during the pre-trial investigation and the criminal proceedings were terminated by the investigator or prosecutor.

The Resolution of the Joint Chamber of the Criminal Cassation Court of the Supreme Court of 15 April 2024 in case No. 554/2506/22 (proceedings No. 51- 4350кмо23) - https://reyestr.court.gov.ua/Review/118558563.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.