Justice on hold: why does the SBI fail to comply with court decisions on recognizing victims?

In the practice of law enforcement agencies, in particular the State Bureau of Investigation (SBI), there are often cases when court decisions to open criminal proceedings or oblige a person to recognize a victim in a case are not implemented. Such disregard is a violation of the law, but in practice, those responsible are not always punished for it. This opinion was expressed in an exclusive commentary to UNN by Denys Neviadomskyi, President of the All-Ukrainian Association of Judges.

The SBI had previously opened criminal proceedings against Oleksandr Zyma, Director of the Legal Department of the National Bank of Ukraine , under articles related to abuse of power and office. The case concerns a letter from the National Bank to the Deposit Guarantee Fund signed by Zyma, in which he recommended that the Fund withdraw the lawsuits filed by Concord Bank against the NBU.  The document referred to four lawsuits filed by the bank against the NBU, in which Concorde demanded that fines totaling almost UAH 63.5 million be canceled. These lawsuits were filed before the NBU decided to liquidate Concorde and put it into temporary administration.

In April of this year , the Shevchenkivskyi District Court of Kyiv recognized Yulia Sosedka, co-founder of Concord Bank, as a victim in this criminal proceeding. According to Yelena Sosedka, Concorde's co-owner, Zyma deprived the bank's shareholders of their constitutional right to a fair trial by his instructions. 

However, Yulia Sosiedka reported, that the SBI has not complied with the court decision for four months and has not recognized her as a victim in the Zyma case. According to her, investigators have not yet handed her a memo on the rights of the victim.

Denys Neviadomskyi , President of the All-Ukrainian Association of Retired Judges, noted that it is currently the case that SBI investigators are in no hurry to comply with the rulings of investigating judges. 

Even if the court ordered the SBI to enter the information into the URPTI, and even if the SBI complies with the court decision, this is not a great victory, as the SBI can simply close the criminal proceedings in a few months for lack of corpus delicti

At the same time, according to the former judge, investigators are almost never held accountable for ignoring court decisions.

Neviadomskyi advised that if the SBI ignores the court's decision, it is necessary to go to court, including with a second complaint.

If the SBI refuses to comply with the court decision (on recognizing you as a victim - ed.), you can file a complaint with the court again. According to Article 306 of the CPC, the court is obliged to consider your complaint and issue a ruling that may oblige the investigator to perform the necessary actions

At the same time, Neviadomskyi emphasized that according to Article 55(1) of the CPC of Ukraine, a victim in criminal proceedings may be an individual who has suffered moral, physical or property damage as a result of a criminal offense, as well as a legal entity that has suffered property damage as a result of a criminal offense.

At the same time, according to him, the rights and obligations of the victim arise from the moment of filing a statement on the commission of a criminal offense against him or an application for involvement in the proceedings as a victim (part 2 of Article 55 of the CPC of Ukraine). 

In the case of or systematic disregard of court decisions, the ex-judge advises to file a statement of crime, namely intentional failure to comply with a court decision, as provided for in Article 382 of the Criminal Code of Ukraine. This may encourage law enforcement agencies to comply with the law.

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The fact that the SBI  has a long-standing practice of not complying with the decisions of investigating judges was previously reported by Bohdan Koval, managing partner of the Dexter Law Firm, to UNN and . According to him, investigators, in particular, are in no hurry to recognize people as victims in criminal proceedings, because after that they have more work to do.