CCP in Art. 32 clearly establishes that criminal proceedings are carried out by a court within the territorial jurisdiction of which a criminal offense has been committed. If several criminal offenses have been committed, criminal proceedings shall be instituted by a court within the territorial jurisdiction of which the more serious offense was committed, and if they were of the same gravity, by a court within the territorial jurisdiction of which the last criminal offense was committed. If the place of commission of a criminal offense cannot be established, the criminal proceedings shall be conducted by a court within the territorial jurisdiction of which the pre-trial investigation has been completed.
Jurisdiction means a set of legal features of a criminal offense (place of its commission, the relationship of criminal offenses and their relationship in severity and time of commission) and some features of the criminal proceedings (place of completion of the pre-trial investigation, the accused, the ability to prosecute in this case court, the place of residence of the accused, the majority of victims or witnesses, as well as the instance of the proceedings), according to which the criminal procedure law determines which court has the right and obligation to conduct criminal proceedings on the merits and review proceedings.
The rules of jurisdiction ensure the equality of all citizens before the law and the court (Article 24 of the Constitution of Ukraine and Article 10 of the CPC of Ukraine). As one of the manifestations of this constitutional principle, the jurisdiction clearly established by law acquires the characteristics of a subjective human right to a lawful judge, ie the right of any person to know in advance which court and in what composition is legally competent to conduct proceedings against him, if such a need will arise.
According to item 1 of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, “in the determination of the merits of any criminal charge against him, everyone is entitled to a fair and public hearing by an independent and impartial tribunal.” According to the analysis of the case law of the European Court of Human Rights on the application of Art. 6 of the ECHR in the criminal procedure aspect, “a court which, in accordance with the current provisions of national law, has no power to try a defendant, is“ not established by law ”within the meaning of Article 6 § 1” (§ 41 “Richert v Poland”).
According to the general rule of determining territorial jurisdiction, criminal proceedings are conducted in the court within the territorial jurisdiction of which the criminal offense was committed. That is, the main legal feature for determining territorial jurisdiction is the place of commission of a criminal offense, which according to paragraph 1 of Part 1 of Art. 91 of the CPC of Ukraine belongs to the circumstances to be proved in each criminal proceeding. The place of commission of a crime is the place of performance by a person of the last actions that form the objective side of the criminal offense, regardless of the place of occurrence of socially dangerous consequences. “The place of commission of a criminal offense” in this context is considered only as a sign that allows to determine the jurisdiction of criminal proceedings – a unit of administrative-territorial division, on the basis of which the judicial system as a whole.
In Art. 412 of the CPC contains a list of significant violations of procedural law, in this regard, they always entail the revocation of the sentence (decision). Violation of the rules of jurisdiction in accordance with paragraph 6. Part 2 of Art. 412 of the CPC is a significant violation of the requirements of criminal procedure law, so the relevant decisions (rulings) must be revoked.
Instead, the practice of the Supreme Court in cases of violation of territorial jurisdiction is not unambiguous and well-established. In the part of cases where violation of the rules of jurisdiction is established, the decisions of previous instances are revoked by the Supreme Court; in the other part, the Supreme Court does not consider that the violation of the rules of territorial jurisdiction is a violation of the rights of the convict, and the trial should continue.
In case №264 / 5559/18, the Court of Cassation issued a decision quashing the first-instance conviction and the decision of the appellate court, and ordered a new trial in the court of first instance. The Court of Cassation referred to the provisions of paragraph 6 of Part 2 of Article 412 of the CPC and formulated a legal conclusion that the violation of the rules of territorial jurisdiction is a significant violation of the criminal procedure law and is an unconditional ground for revocation of the decision under paragraph 1 of Part 1 Article 438 of the CPC.
A similar conclusion was reached by the Court of Cassation in case №335 / 3479/13-k and also emphasized that the violation of the established rules of jurisdiction in accordance with paragraph 6 of Part 2 of Article. 412 of the CPC is an unconditional ground for revocation of the court decision.
But there are a number of cases in which the Court of Cassation in a similar situation came to the opposite conclusion. Thus, in case №569 / 6966/16 the court of cassation left the cassation appeal of the defense without satisfaction, and the conviction of the court of first instance and the decision of the appellate court – without changes. The Supreme Court referred to paragraph 1 part 1 of Article 34 of the CPC, which provides that criminal proceedings are transferred to another court if before the trial it turned out that the proceedings went to court in violation of the rules of jurisdiction. After all, in accordance with paragraph 4 of Part 3 of Article 314 of the CPC at the stage of the preparatory hearing, the court has the right to send an indictment to the appropriate court to determine jurisdiction, if the jurisdiction of the proceedings. Therefore, in accordance with the provisions of Article 34 of the CPC (since the violation was discovered after the start of the trial), this is not a ground for transferring the case to another, territorially competent court. Therefore, the Court of Cassation does not consider that the consideration of the case in violation of the principle of territorial jurisdiction indicates a violation of the rights of the convict. Even assuming an erroneous determination of territorial jurisdiction, the court of first instance acted in accordance with the rules established by the CPC, ie it continued the proceedings initiated in this court.
Based on this legal position, the Court of Cassation in case №490 / 10025/17 added that “even if we agree that the proceedings were erroneously referred to a territorially unauthorized court, this does not indicate a violation of the convict’s right to be heard by the court.”
In accordance with Part 6 of Art. 13 “On the Judiciary and the Status of Judges”, the conclusions on the application of the rules of law set out in the decisions of the Supreme Court are taken into account by other courts in the application of such rules of law. Because the Supreme Court formulates not only different legal positions on the same issue, but the application of one approach excludes the possibility of applying another, it is not clear which legal position the lower courts should focus on.
Summing up, it should be noted that in order to resolve the ambiguity in the legal position of the Criminal Court of Cassation, the Grand Chamber must consider a similar case and form a single position of the Supreme Court on this issue. In turn, in case of violation of territorial jurisdiction, the defense must file a petition to refer criminal proceedings to another court in accordance with Art. 34 of the CCP. Since there are a significant number of cases where errors of territorial jurisdiction have become known since the trial, it is advisable to define separate rules in the CPC that would apply in these cases.