Upon the commission of the Chairman of the Constitutional Court of Ukraine Oleksandr Tupytskyi, we publish the statement forwarded to the Prosecutor General
To the Prosecutor General
I.V.Venediktova
Dear Iryna Valentynivna,
The Constitution of Ukraine stipulates that public authorities and their officials are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine (Article 19).
The Code of Criminal Procedure of Ukraine (hereinafter referred to as the Code) states that the tasks of criminal proceedings are to protect individuals, society and the state from criminal offenses, secure the rights, freedoms and legitimate interests of participants in criminal proceedings, as well as ensure prompt, complete and impartial investigation and trial so that everyone who commits a criminal offense is prosecuted to the extent of their guilt, no innocent person is charged or convicted, no person is subjected to unreasonable coercion, and every party to criminal proceedings is subject to due process of law (Article 2).
Criminal proceedings are conducted in accordance with the principle of the rule of law, according to which a person, his rights and freedoms are recognised as the highest values and determine the content and direction of the state (Article 8 of the Code).
During criminal proceedings, the court, investigating judge, prosecutor, head of the pre-trial investigation body, investigator, and other officials of public authorities must strictly comply with the requirements of the Constitution of Ukraine, the Code, international treaties approved by the Verkhovna Rada of Ukraine, other acts of legislation (Article 9 of the Code).
These fundamental provisions of the Constitution of Ukraine and the Code have been largely violated against me by certain officials of the Office of the Prosecutor General and the State Bureau of Investigation.
On January 15, 2021, the Constitutional Court of Ukraine received an e-mail (marked “repeatedly”), signed by the investigator of the State Bureau of Investigation R.O. Krupka, about calling me to the investigator of the State Bureau of Investigation R.O. Krupka on January 20, 2021 at 1.00. “For participation in the conduct of procedural actions (interrogation, service of procedural documents) in the criminal proceedings No. 12013110060002990 as a suspect” (Reg. No. 13/69 of January 15, 2021).
The request of investigator R.O. Krupka that I was summoned to him “as a suspect” is legally unfounded, because as of today I do not have the status of a suspect in the criminal proceedings No. 12013110060002990 or in any other criminal proceedings.
Pursuant to Article 42.1 of the Code, a suspect is a person who has been notified of a suspicion in accordance with Articles 276-279, a person detained on suspicion of committing a criminal offense, or a person who has been notified of a suspicion, but not served on him/her due to failure to establish the location of the person, but measures were taken for service in the manner prescribed by the Code for service of notices.
Article 276.1 of the Code stipulates that a notice of suspicion must be made in the manner prescribed by Article 278 of the Code, in the following cases: 1) detention of a person at the place of a criminal offense or immediately after its commission; 2) selection to the person of one of the precautionary measures provided by the Code; 3) the availability of sufficient evidence to suspect a person of committing a criminal offense; the peculiarities of the notification of suspicion of a certain category of persons are determined by Chapter 37 of the Code. Such a specific category of persons is, in particular, judges of the Constitutional Court of Ukraine. Article 481.1 of the Code envisages that a written notice of suspicion of a judge of the Constitutional Court of Ukraine shall be made by the Prosecutor General or his/her deputy. Article 24.9 of the Law of Ukraine “On the Constitutional Court of Ukraine” provides that judges of the Constitutional Court of Ukraine shall be notified of a suspicion of committing a criminal offense by the Prosecutor General or a person exercising his/her powers.
In accordance with Article 276.1 of the Code, a written notice of suspicion is served on the day of its preparation by the investigator or prosecutor, and in case of impossibility of such service - in the manner prescribed by the Code for service of notices.
Instead, to date, the Prosecutor General or a person exercising his/her powers has not notified me, as a judge of the Constitutional Court of Ukraine, in writing in the manner prescribed by the Code of suspicion of committing criminal offense in the criminal proceedings No. 12013110060002990, in which the investigator R.O. Krupka summoned me “as a suspect” or in any other criminal proceedings.
Certain actions of investigators of the State Bureau of Investigation (including investigator R.O. Krupka), procedural chiefs and acting Prosecutor General R.M. Hovda, which in some procedural documents are publicly called by them “the notice to the judge of the Constitutional Court of Ukraine Tupytskyi O M. on suspicion of committing criminal offenses under Articles 384.2 and 386.2 of the Criminal Code of Ukraine”, were executed in gross violation of the requirements of the Code and the Law of Ukraine “On the Constitutional Court of Ukraine” regarding the notification of suspicion to a judge of the Constitutional Court of Ukraine. In fact and legally, such a notification to me about the suspicion of committing these criminal offenses in the manner prescribed by law was not made.
This is confirmed by a number of irrefutable facts and documents.
For instance, in the petition addressed to the President of Ukraine V.O. Zelenskyi on the removal of O.M.Tupytskyi from office of a judge of the Constitutional Court of Ukraine of December 28, 2020, the Acting Prosecutor General R.M. Hovda stated that in the criminal proceedings No. 12013110060002990 “On December 28, 2020, O.M. Tupytskyi was notified of the suspicion of committing criminal offenses under Articles 384.2 and 386 of the Criminal Code of Ukraine" (a copy of the petition is attached).
Instead, the stated statement of the Acting Prosecutor General R.M. Hovda about the notification of this suspicion to me on December 28, 2020 is not true. In addition, this statement is a deliberate mislead of the head of state.
From the mass media on December 24, 2020, I learned that on this day I was sent a summons for December 28, 2020 at 9.30 to the Acting Prosecutor General R.M.Hovda “to participate in the procedural act - the exercise of notification on suspicion in the criminal proceedings No. 12013110060002990 of 02.04.2013” - a photocopy of the summons was published by many mass media (copy is attached). However, despite the special promulgation by the Office of the Prosecutor General (apparently for the purpose of discrediting me) of this summons on December 24, 2020 (the day before the week-end day), it was not served on me. It was not even duly transmitted to the Secretariat of the Constitutional Court of Ukraine, as required by law (Article 135.2 of the Code).
This summons was handed to me by an employee of the Documentation Support Department of the Secretariat of the Constitutional Court of Ukraine on Monday morning, December 28, 2020. This is confirmed by the stub of the summons, in which the responsible employee of the Secretariat of the Constitutional Court of Ukraine signed on delivery of this summons with the date of delivery - December 28, 2020, and myself - on its receipt with the date of receipt - December 28, 2020 (copy is attached).
After that, at about 9.15 I called Acting Prosecutor General R.M. Hovda and informed that I had just received his summons, so objectively I would not be able to come to him on call at 9.30 and asked to postpone the exercise of the procedural action - notification of suspicion to me – on the next day (December 29, 2020) so that I could involve a lawyer in this action and properly exercise my right to defense. Moreover, there were valid reasons provided by law for such a transfer of the said procedural action, of which I informed him.
According to Article 135.8 of the Code, a person must receive a summons or be notified of it by other means no later than three days before the day when he is obliged to arrive on summons. If the Code sets deadlines for procedural actions that do not allow to make a summons within the specified period, the person must receive summons or be notified of it by other means as soon as possible, but in any case with the necessary time to prepare and arrive on call.
In addition, on December 28, 2020, I sent a written request to the Acting Prosecutor General R.M. Hovda about the impossibility of appearing at his summons at 9.30 on December 28, 2020 in connection with the late receipt of a summons, which is a valid reason for non-arrival of a person on call (Article 138.1.7 of the Code). I have attached a copy of the summons to the petition with the signature and indication of the date of its receipt, as by law the person's acknowledgment of receipt of the summons or acquaintance with its contents by other means is the person's receipt of the summons (Article 136.1 of the Code). In addition, in my petition, I indicated another valid reason for not arriving on that day (December 28, 2020) to call the prosecutor with supporting documents (Article 138.1.8 of the Code). This submission was delivered by courier to the Office of the Prosecutor General by 10.00 on December 28, 2020. The receipt of my submission by the Office of the Prosecutor General is confirmed by the answers of the Prosecutor of the Office of the Prosecutor General S. Novikov (Reg. No. 13/50 of January 14, 2021) and the notification of the Acting Prosecutor General R.M. Hovda.
However, Acting Prosecutor General R.M. Hovda ignored both my oral (telephone) notification and a written request not to appear before him on the date and time specified in the summons due to late receipt, and my request to postpone due to the specified circumstances of the notification to me of suspicion the next day - December 29, 2020.
Thus, on December 28, 2020, due to my non-appearance for valid reasons at the summons of the Acting Prosecutor General R.M. Hovda, I was not notified of the suspicion in the criminal proceedings No. 12013110060002990. All this day I was at work in the premises of the Constitutional Court of Ukraine (14 Zhylianska street, Kyiv), but neither the Acting Prosecutor General R.M. Hovda, nor other prosecutors, nor investigators of the State Bureau of Investigation, who carry out investigative actions within the specified criminal proceedings, did not come to the Constitutional Court of Ukraine to notify me of suspicion in committing these criminal offenses. None of these persons informed me of the suspicion that day and did not hand over any procedural documents to other places of my stay, in particular at my place of residence.
Therefore, on December 28, 2020, in accordance with the procedure established by law, I did not acquire the status of a suspect in the criminal proceedings No. 12013110060002990 or in any other criminal proceedings.
This means that the investigators of the State Bureau of Investigation and prosecutors had no legal grounds to summon me for questioning as a suspect or conduct other proceedings in this status, and the Prosecutor General or the person exercising his/her powers - to submit a request to the President of Ukraine to remove me from office of a judge of the Constitutional Court of Ukraine even on formal grounds.
This is another confirmation of the unconstitutionality and illegality of such removal, which took place on the basis of the petition of Acting Prosecutor General R.M. Hovda dated December 28, 2020. After all, according to the Code (Articles 154, 155), removal from office can be applied only to a suspect or accused, which I was not declared as of December 28, 2020, and furtheron in the manner prescribed by law. In addition, these procedural provisions do not apply to judges of the Constitutional Court of Ukraine and cannot be applied to them, as the Constitution of Ukraine, the Law of Ukraine “On the Constitutional Court of Ukraine” and the Code do not provide for the removal of a judge of the Constitutional Court of Ukraine from office.
Without denying the obvious and indisputable fact that I was not personally handed over a notice of suspicion on December 28, 2020, certain officials of the Office of the Prosecutor General believe that they have granted me the status of a suspect in the criminal proceedings No. 12013110060002990 by sending a notice of suspicion to the Constitutional Court of Ukraine, which was received on December 29, 2020.
For instance, the Prosecutor of the Fourth Division of the Procedural Management of the Department of Organisations, Procedural Management of Pre-Trial Investigation and Support of Public Prosecution in Criminal Proceedings for Crimes Committed in connection with Mass Protests in 2013-2014, Office of the Prosecutor General O.I. Bahniuk in his letter addressed to the Constitutional Court of Ukraine of January 12, 2021 No. 14 / 4-34289-15 notes that in connection with the impossibility of handing over on December 28, 2020 by the investigator or prosecutor of a notice of suspicion personally to Tupytskyi O.M. “in accordance with the requirements of Article 278.1 of the Code, measures were taken to serve the said notice to Tupytskyi O.M. in the manner prescribed by the Code for service of notices. Further, the prosecutor points out that on the day of drawing up the notice of suspicion “it was sent by post to O.M. Tupytsky's place of work, namely to the Constitutional Court of Ukraine for transfer to O.M. Tupytskyi”. “Thus, - this prosecutor concludes, - according to Article 42.1 of the Criminal Procedure Code of Ukraine O.M. Tupytskyi from 28.12.2020 is a suspect in the specified criminal proceedings” (a copy of the letter is attached).
This conclusion of the prosecutor is not based on the norms of the Code and is the result of substituting concepts, selective reference to procedural provisions, ignoring clear and unambiguous provisions of the criminal procedure law, as well as well as the biased organisation (procedural management) of the investigation of the criminal proceedings No. 12013110060002990.
The prosecutor's office had no legal grounds to apply a special procedure for handing me a notice of suspicion, which, moreover, was not implemented. Therefore, there are no legal grounds for declaring me as a suspect without personally giving me a notice of suspicion in the manner prescribed by law.
According to the Code, the right to apply a special procedure for the handing over of a notice of suspicion (in the manner prescribed for the service of notices) arises only in a case clearly defined by law. Article 278.1 of the Code states that in the manner prescribed by the Code for service of notices, a notice of suspicion is handed over in case of impossibility of such act in person. Article 135.2 of the Code, which regulates the procedure for making a summons in criminal proceedings, establishes that in case of temporary absence of a person at the place of residence, the summons is handed over to the adult family member or another person living with him/her, housing and maintenance organisation at the place of residence of the person or administration at the place of his/her work.
However, on December 28, 2020, as well as the following days - December 29, 30, 31, I was at my place of permanent residence with my family, went to work in the morning, and returned in the evening. Of course, both investigators and prosecutors knew about it.
In connection with the summoning of me for interrogation on January 4, 2021 “as a suspect”, on December 31, 2020, I had a telephone conversation (through the reception) with investigator R.O. Krupka, in which I informed him (with the relevant legal justification) that I had not acquired the status of a suspect in the manner prescribed by law. Having reached an understanding on this issue, namely that the interrogation of me “as a suspect” could not be carried out without notifying me of the suspicion, we agreed with investigator R.O. Krupka that we would agree with him on the date and time of my appearance for questioning as a suspect after the Acting Prosecutor General R.M. Hovda announced (informed) me the suspicion signed by him in accordance with the procedure prescribed by law.
On January 4, 2021, I had a telephone conversation with investigator R.O. Krupka again. I informed investigator R.O. Krupka that I was sending him a written statement about the impossibility of appearing for questioning “as a suspect” because I had not acquired the status of a suspect in the manner prescribed by law. On the same day, investigator R.O. Krupka received my statement, to which copies of documents that I had sent to Acting Prosecutor General R.M. Hovda on December 28, 2020, were attached. At the same time, I asked him as an investigator to ensure that appropriate procedural steps were taken to declare me a suspect in accordance with the Code.
Article 42.1 of the Code provides that a suspect is, in particular, a person against whom a notice of suspicion has been issued, but it was not served on him/her due to failure to determinate the person's whereabouts, but measures were taken to serve in the manner prescribed by the Code.
Prosecutor of the Office of the Prosecutor General O.I. Bahniuk in the above-mentioned letter notes that “measures were taken to deliver the said notice to O.M. Tupytskyi in the manner prescribed by the Criminal Procedure Code of Ukraine for service of notices”. However, in accordance with Article 42 of the Code, such measures may be taken only if a notice of suspicion has been issued to a person, but it has not been served on him or her due to failure to determinate the person's whereabouts. But everyone (colleagues, employees of the Secretariat of the Constitutional Court of Ukraine, employees of the Administration of State Guard of Ukraine, as well as investigators and prosecutors) knew my whereabouts - I did not hide from anyone, did not run away, I went to work every day, spent the nights at home. In addition, I was in constant telephone contact with investigator R.O. Krupka, and on December 28, 2020, as already mentioned, I had a telephone conversation with the Acting Prosecutor General R.M. Hovda about the impossibility of appearing on this day for a procedural action for valid reasons, as well as a request to postpone the notification of suspicion to me the next day - December 29, 2020. Prosecutors and investigators knew my whereabouts exactly, especially since, as the Chairman of the Constitutional Court of Ukraine, I am under the constant protection of the staff of the Department of State Guard, who accompany me everywhere.
It should be noted that the criminal procedure doctrine has an unequivocal position that according to Article 42.1 of the Code, a person acquires the status of a suspect as a result of taking measures to serve a notice of suspicion in the manner, prescribed by the Code for service of notices, only in one case - if the drawn up notice of suspicion cannot be served due to failure to determinate the whereabouts of the person. Therefore, if the person's whereabouts are determined, so that the prosecution (investigator, prosecutor) has accurate information about the person's place of work, place of residence or temporary stay, it is not possible to serve a notice of suspicion in the manner prescribed by the Code for service of notices (Hlinska N., Loboiko L., Shylo O. Notification of suspicion: legality of application of the procedure provided by the CPC for service of notices. Legal Bulletin of Ukraine. 2017. No. 45 - a copy is attached).
Thus, the prosecutor's office illegally “took measures” to serve on me a notice of suspicion in the manner prescribed by this Code for the service of notices, in accordance with the Code, such notice should have been served on me personally.
At the same time, apparently, prosecutors are aware of the illegality of their actions, which, in particular, follows from the deliberate substitution of concepts by prosecutor O.I. Bahniuk, who notes in his letter that the notice of suspicion “was sent by post to the place of work of O.M. Tupytskyi, namely to the Constitutional Court of Ukraine for further transfer to O.M. Tupytskyi”, although the Code (Articles 42, 278) does not specify the transfer of a notice of suspicion, but its hand-over to a person.
The fact that Articles 42 and 278 of the Code do not refer to the transfer, but to the hand-over of a notice of suspicion is reasonably noted in the literature of scientific and practical orientation and is fully consistent with the etymology of the word “hand-over” (see: Criminal Procedure Code of Ukraine: scientific-practical commentary/ M.Yu. Bludylina, V.I. Boiarov, T.V. Varfolomeieva, L.M. Loboiko, etc. K.: Justinian, 2012. P. 608).
The notice of suspicion, sent by post, was received by the Constitutional Court of Ukraine on December 29, 2020 (registered No. 13/2436) (copy is attached). However, it was not handed over to me personally. The Secretariat of the Constitutional Court of Ukraine returned the notice to the Office of the Prosecutor General, as in these circumstances the transfer of it to me meant an illegal way of notice of suspicion.
Thus, as for today, in the manner prescribed by law, I have not been notified of the suspicion of this criminal proceeding, which entails significant negative consequences. By illegally “transmitting” the notice of suspicion, the criminal prosecution of me actually began in an illegal manner. Absolutely unfounded “attribution” to me of the status of a suspect in the absence of legal grounds for this has created formal opportunities for the application of preventive and other measures to ensure criminal proceedings against me, resulting in significant restrictions on rights and freedoms (in particular, “removal” from office).
The fact that I was not notified of the suspicion in the specified criminal proceedings in the manner prescribed by law, is well understood by prosecutors, trying in a manner not provided by law to take procedural action to notify me of the suspicion. Prosecutor O.I. Bahniuk, who is not authorised to notify a judge of the Constitutional Court of Ukraine of suspicion by law, in his letter of January 12, 2021 No. 14/4-34289-15 sent to the Constitutional Court of Ukraine the said notice of suspicion “for transfer to O.M. Tupytskyi (for his information)”, although such a method of notification of suspicion as “transmission of a notice to a person for his or her information” is not provided by the Code.
As a result of illegal procedural actions and decisions of officials of the Office of the Prosecutor General and the State Bureau of Investigation, I am deprived of the opportunity to exercise my legal rights, in particular: to know what criminal offense I am suspected of committing; be clearly and timely informed of my rights under the Code, as well as receive their explanations; give explanations, testimony about suspicion; to have a lawyer at the first request (Article 42 of the Code). Thus, my constitutional right to protection has been grossly violated (Articles 55 and 131² of the Constitution of Ukraine).
In addition, such actions violate Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as I have in fact been unlawfully charged with a criminal offense, the nature and causes of which I have not been duly informed, as well as I do not have the opportunity to effectively protect my rights.
The illegal actions of officials of the Prosecutor General's Office and investigators of the State Bureau of Investigation, who committed these violations, have signs of such criminal offenses as abuse of power or official authority by a law enforcement officer, forgery, interference in the activities of statesman, interference in judicial activities (Articles 365, 366, 344, 376 of the Criminal Code of Ukraine).
I want to emphasise that I do not evade the investigation, including such a procedural action as notifying me of suspicion. In addition, I have repeatedly orally and in writing addressed the prosecutors and the investigator of the State Bureau of Investigation R.O. Krupka with a request to properly ensure my participation in the proceedings - notification of suspicion in the criminal proceedings - in accordance with the law (a copy of the statement to the investigator R.O. Krupka of January 4, 2021 is attached).
At the same time, I believe that this criminal case is falsified and politically motivated, and its investigation is carried out in violation of the principle of objectivity and impartiality. I am convinced that the purpose of this case is to try to prevent me from exercising the powers of a judge and the Chairman of the Constitutional Court of Ukraine (as evidenced, in particular, by my inadmissibility to the Court on December 30, 2020), and to block the work of the Constitutional Court of Ukraine.
Based on the above, I ask you:
1. If there are legal grounds to notify me in the manner prescribed by law and by the appropriate subject of suspicion of committing criminal offenses in the criminal proceedings No. 12013110060002990. I am ready to arrive to participate in the relevant procedural action (notifying me of the suspicion) on the date and time specified by you or another competent person in the manner prescribed by law.
2. To ensure proper procedural guidance of the pre-trial investigation in the criminal proceedings No. 12013110060002990, to eliminate violations of the requirements of the Constitution of Ukraine, the Code, the Law of Ukraine “On the Constitutional Court of Ukraine” by prosecutors and investigators of the State Bureau of Investigation.
3. To take appropriate legal measures against investigators of the State Bureau of Investigation and prosecutors (including procedural supervisors) who have committed these violations of the law and abuse of office.
4. To appeal to the President of Ukraine to repeal the Decree “On removal of a judge of the Constitutional Court of Ukraine from office” of December 29, 2020 No. 607/2020, which was issued on the basis of a request of Acting Prosecutor General R.M. Hovda, until I am declared a suspect in the manner prescribed by law.
Attachments:
1) a copy of the summons of investigator R.O. Krupka on summoning me to him on January 20, 2021 (2 sheets);
2) a copy of the petition of the Acting Prosecutor General R. Hovda to the President of Ukraine on the removal of O.M. Tupytskyi from the office of a judge of the Constitutional Court of Ukraine of December 28, 2020 – (4 sheets);
3) a photocopy of the summons of the Acting Prosecutor General R.M. Hovda of December 24, 2020 on summoning me to him on December 28, 2020, which was published in the media – (3 sheets);
4) a copy of the stub of the summons of the Acting Prosecutor General R.M. Hovda of December 24, 2020 on summoning me to him on December 28, 2020, indicating the date of its receipt (December 28, 2020) – (1 sheet);
5) a copy of my notification with attachments addressed to the Acting Prosecutor General R.M. Hovda about the impossibility to appear at the summons of the Prosecutor on December 28, 2020 – (10 sheets);
6) a copy of the letter of the Prosecutor of the Fourth Division of Procedural Management of the Department of Organisation, Procedural Management of Pre-trial Investigation and Support of Public Prosecution in Criminal Proceedings for Crimes Committed in Mass Protests in 2013-2014 of the Office of the Prosecutor General O.I. Bahniuk to the Constitutional Court of Ukraine of January 12, 2021 No.14/4-34289-15 – (4 sheets);
7) a copy of my statement to the investigator of the State Bureau of Investigation R.O. Krupka of January 4, 2021 – (2 sheets);
8) a copy of a scientific article: Hlinska N., Loboiko L., Shylo O. Notification of suspicion: legality of application of the procedure provided by the CPC for service of notices. Legal Bulletin of Ukraine. 2017. No. 45 – (2 sheets).
Sincerely,
Chairman
of the Constitutional Court of Ukraine (signature) O.M. Tupytskyi
January 19, 2021
