Every criminal proceeding is complicated if the client claims that he is not guilty and gives the task to the lawyers: acquittal of the court. The task becomes more complicated if at the stage of the pre-trial investigation the client’s previous defence attorneys did not actually defend the case, and new defence attorneys entered the case at the stage of the preparatory court hearing.
In August 2022, at the request of the Client, who claimed to have committed a provocation of a crime against him, the team of the Bauman Kondratyuk Bar Association began the defence in criminal proceedings against the client for the commission of a criminal offense provided for in Article 368 § 3 of the Criminal Code of Ukraine (later reclassified to Article 368 §1 of the Criminal Code of Ukraine).
During the study of the materials of the criminal proceedings, it was noticed that during the pre-trial investigation, a disproportionate interference with the client’s and other persons’ right to private property was committed.
Therefore, it was decided at the stage of the trial to apply to the court with a request to cancel the seizure of the client’s property.
The problem was that the provisions of the Criminal Procedure Code of Ukraine regarding the cancellation of the seizure of property at the stage of the trial are imperfect.
Thus, according to Article 174 §4 of the Criminal Procedure Code of Ukraine, the court, at the same time as adopting a court decision on the end of the trial, decides the issue of cancelling the seizure of property. The court cancels the seizure of property, in particular, in case of acquittal of the accused, closure of criminal proceedings by the court, if the property is not subject to special confiscation, non-appointment by the court of punishment in the form of confiscation of property and/or non-application of special confiscation, refusal of the civil lawsuit.
In practice, the question arises: Can the defence still initiate the issue of cancelling the seizure of property before the end of the trial?
According to Article 368 § 1 (12) of the Criminal Procedure Code of Ukraine, it is determined that the court, when passing a sentence, must decide what should be done with the property on which the seizure has been imposed, taking into account the teleological principle of law interpretation, the court comes to the conclusion that it must decide the issue of cancelling the seizure of property under the time of passing the verdict, however, this does not limit the court in considering the relevant petition at other stages of the trial.
Among other things, according to Article 315 §3 of the Criminal Procedure Code of Ukraine, during the preparatory court session, the court, at the request of the party of the court proceedings, has the right to choose, change or cancel measures to ensure the criminal proceedings, one of which, as is known, by virtue of Article 131 § 2 (7) of the Criminal Procedure Code of Ukraine, there is seizure of property.
Therefore, based on the provisions of the Criminal Procedure Code of Ukraine, the authority of the court to consider the motion to cancel the seizure of property is not limited to the stage of passing the sentence.
Therefore, the defence had a question about when it is appropriate to initiate the cancellation of the seizure of property?
It is known that during the consideration of a criminal case in court the following must be proven:
1) crime event (time, place, method and other circumstances of the crime);
2) the guilt of the accused in committing the crime and the motives of the crime.
At the same time, in bribery investigation cases, the following circumstances must be proven: the event and circumstances (time, place, etc.) of the bribe transfer to an official, the aim of the bribe, the object of the bribe and its characteristics, sources of funds for the bribe, and the method of bribe transfer.
Therefore, it is possible to establish the presence or absence of facts and circumstances that are important for criminal proceedings and directly related to the subject of evidence in criminal proceedings, only after examining each piece of evidence in criminal proceedings.
At the stage of evidence investigation, the lawyers of the Bauman Kondratyuk Bar Association presented their arguments to the court about the lack of further need to seize property (evidence), since such evidence does not relate to the subject of the criminal proceedings.
Based on the results of consideration of the defence requests, the court came to the conclusion that the property of the accused should be returned, and the seizure imposed on the real estate, cash and other property of the client and other owners of the property should be cancelled.