CANNOT PUNISH FOR INTENTIONAL KILLING FROM HUMAN HUMAN SUBMITTINGS IN THE CONDITION OF DECOMPOSITION

Given that the state of insanity is related to the lack of intellectual and volitional characteristics in the person, the presence of a clearly defined purpose and motive in the mind of the person as signs of the subjective side of the crime is incompatible, so the establishment of any form of guilt (intent or negligence) in the actions of a non-judgmental person are objectively impossible. A legal assessment of a socially dangerous act in such a case must be given in the light of the actual circumstances of the action and the consequences that have arisen.

 The relevant provision is contained in the decision of the CCC of the Armed Forces of November 19, No. 130/2612/17.

 The Panel of Judges of the Second Trial Chamber of the Cassation Criminal Court within the Supreme Court considered the cassation complaints of the defense counsel and the prosecutor against the decision of the Court of Appeal, which left unchanged the decision of the local court on the application to the person of compulsory medical measures in the form of hospitalization for psychiatric hospitalization the commission of a socially dangerous act containing the signs of a crime under Part 3 of Art. 15, item 7 h. 2 tbsp. 115 of the Criminal Code (unlawful attempted assassination of a hooligan).

 In his cassation complaint, the defense counsel stated, in particular, that the act of the person did not show any signs of the said crime, since the object, which caused the victim bodily harm, did not have a significant impact, while the person was in a state of insanity, which eliminates the presence of his actions. for hooligan motives. In a cassation complaint, the prosecutor stated that committing a person with a socially dangerous act in a state of insanity is incompatible with establishing the subjective side of the crime.

 The panel of judges of the CCC Armed Forces disagreed with the findings of the local and appellate courts as regards the legal assessment of the person's actions in the light of such.

 The materials of the criminal proceedings show that the person was found to have both a medical criterion (chronic mental illness in the form of schizophrenia, paranoid), as well as intellectual and volitional signs of the legal criterion (inability to understand their actions and control them). In view of these circumstances, the court of first instance concluded that the person committed a socially dangerous act in a state of insanity and, as a consequence, the need to apply compulsory measures to it of a medical nature.

 At the same time, provided that the person is in a state of insanity, a legal assessment of the socially dangerous act committed by him on the grounds of the crime provided for in Part 3 of Art. 15, item 7 h. 2 tbsp. 115 of the Criminal Code, is incorrect.

 According to the provisions of Art. 15 of the Criminal Code, an attempt to commit a crime can only be done with a deliberate intent when a person is aware of the socially dangerous nature of his act, anticipates its socially dangerous consequences and desires their occurrence.

 Given that the state of insanity is related to the lack of intellectual and volitional characteristics in the person, the presence of a clearly defined purpose and motive in the mind of the person as signs of the subjective side of the crime is incompatible, so the establishment of any form of guilt (intent or negligence) in the actions of a non-judgmental person are objectively impossible. A legal assessment of a socially dangerous act in such a case must be given in the light of the actual circumstances of the action and the consequences that have arisen.

 Contrary to the above, the local court, finding that the socially dangerous act of the person was committed in a state of insanity, indicated in the decree that there was a premeditated intent to commit murder for hooligan motives and gave an assessment of the crime committed under Part 3 of Art. 15, item 7 h. 2 tbsp. 115 of the Criminal Code, in connection with which he allowed the law of Ukraine on criminal liability to be incorrectly applied. The defense counsel directly referred to these violations in his appeal, but they remained unheeded by the court of appeal.

 The gravity of a socially dangerous act (legal evaluation) committed in a state of insanity depends on the type of compulsory medical measures that can be applied. However, by virtue of its powers, the cassation court is deprived of the opportunity to remedy the violations committed by the lower courts.

 The CCA of the Armed Forces overturned the decision of the Court of Appeal and ordered a new trial in the court of appeal. He noted that during the new trial it is necessary to take into account the above, to carefully check the arguments of the appeal, if necessary, and if there are appropriate grounds, to re-examine the circumstances of the criminal proceedings and to make a court decision that would meet the requirements of Art. 370 PDAs.