Review of the practice of the Supreme Court in the period from 14 to 27 September 2018

Resolution of the Supreme Court on the application of the rule on sentencing in the presence of mitigating circumstances

Case № 148/1211/15-k

If the court has established even one of the mitigating circumstances: appearance with a confession, sincere repentance, active assistance in solving the crime, voluntary compensation for damage or elimination of the damage, it may apply the provisions of Art. 69-1 of the Criminal code of Ukraine (appointment of punishment in the presence of the mitigating circumstances).

This is stated in the decision of the panel of judges of the First Judicial Chamber of the Criminal Court of Cassation of the Supreme Court, which considered the cassation appeals of two defense attorneys in the interests of two persons convicted of criminal offenses under Part 3 of Art. 185 (theft) and Part 3 of Art. 186 of the Criminal Code of Ukraine (robbery), on the verdict of the appellate court.

The men were found guilty of committing a number of crimes against property by prior conspiracy between themselves and others. According to the verdict of the local court, both convicts were released from serving a probation sentence with a probation period of 3 years.

The Court of Appeal quashed the first-instance court's sentence and imposed a new sentence of 5 years' imprisonment on each of the men.

In the cassation appeal, the defenders asked to change the verdict of the appellate court, imposing on the mentioned persons a punishment not related to actual imprisonment. In addition, one of the defenders drew attention to the fact that the appellate court unreasonably found it impossible to apply to the convicts the provisions of Art. 69-1 of the Criminal Code of Ukraine.

According to the Supreme Court, the appellate court complied with the law, in particular when sentencing. At the same time, the panel of judges of the CCC of the Supreme Court did not agree with the position of the appellate court, which recognized that the presence of only one of those listed in paragraph 1 of Part 1 of Article. 66 of the Criminal Code of Ukraine mitigating circumstances, namely: sincere repentance, in the absence of another - the appearance of a confession, makes it impossible to apply the rules of Art. 69-1 of this Code in determining the punishment.

Judges of the Supreme Court consider that the wording of paragraph 1 part 1 of Art. 66 of the Criminal Code of Ukraine provides: the presence of any of the circumstances listed in it (or "appearance with a confession", or "sincere repentance", or "active assistance in solving the crime"), means that the requirement of this paragraph is met. Thus, the provisions of Art. 69-1 of the Criminal Code of Ukraine are applied if the court has established any of the circumstances specified in paragraphs 1 and 2 of Part 1 of Art. 66 of the Criminal Code of Ukraine.

At the same time, taking into account that the punishment imposed by the appellate court does not exceed two thirds of the maximum terms provided by the relevant sanctions of Part 3 of Art. 185 and Part 3 of Art. 186 of the Criminal Code of Ukraine, the panel of judges of the Constitutional Court of the Supreme Court does not consider that in this case the appellate court violated the provisions of Art. 69-1 of the Criminal Code of Ukraine.

The Supreme Court upheld the verdict of the appellate court

If the territorial jurisdiction changes and the case is considered first, the court must re-examine the witnesses, - the Supreme Court

Case № 720/2612/15-k

The court may not examine previously obtained evidence only in the event of a change of judge, ie within the jurisdiction of one court hearing the case. If the case is transferred from one local court to another, witnesses should be called again for questioning, and not limited to listening to a recording of their previous testimony.

This conclusion was made by the panel of judges of the Second Judicial Chamber of the Criminal Court of Cassation of the Supreme Court, which considered the prosecutor's cassation appeal against the verdict of the local and the decision of the appellate courts.

According to the verdict of the court of first instance, the director of the company was found not guilty of committing crimes under parts 1, 2 of Art. 204 of the Criminal code of Ukraine (illegal manufacturing, storage, sale or transportation for the purpose of sale of the excisable goods) in connection with unprovenness of its participation in commission of these crimes. The Court of Appeal upheld the local court's verdict.

The pre-trial investigation body accused the man that during 2010-2013 he, in particular, organized and adjusted the production and sale of counterfeit fuel to customers of the gas station.

The decision of the Supreme Court draws attention to the fact that the indictment against the person was sent for consideration to the Kitsman district court of Chernivtsi region, from which it was transferred to the Khotyn district court of Chernivtsi region. As part of the judicial investigation, the latter examined the evidence in the case, in particular, witnesses were questioned. Later, in connection with the expiration of the powers of the judge hearing the case and the impossibility to form a new court, the criminal proceedings against the director of the company were transferred to the Novoselytsia District Court of Chernivtsi region.

In this court the case was considered from the very beginning - from the stage of the preparatory court session. In addition, the said local court decided not to re-summon witnesses for questioning, but to examine their testimony given in the Khotyn District Court of Chernivtsi Oblast, after listening to the recording of the court hearing, and assessed the testimony in the verdict.

Thus, as the Supreme Court pointed out, the local court grossly violated the requirements of the criminal procedure law. After all, Art. 319 of the Criminal Procedure Code of Ukraine provides for the possibility not to examine previously obtained evidence only in the event of a change of judge, ie within the jurisdiction of one court hearing the case. At the same time, in this criminal proceeding, the territorial jurisdiction was changed: in another court, the case received a new registration number, and a new court was appointed.

The panel of judges of the CCC of the Supreme Court concluded that the decision of the local court that there was no need to re-call witnesses for questioning was erroneous and, having examined the testimony of witnesses, the trial court did not follow the principle of direct examination of evidence.

From the systematic analysis of the requirements of the criminal procedure law it follows that such a source of evidence as the testimony of a witness, the court receives directly at the hearing during his interrogation. Therefore, in this case, the testimony of witnesses referred to in the verdict was obtained in violation of the requirements of criminal procedure law, and therefore are inadmissible as evidence and cannot be used by the court.

The Supreme Court overturned the verdict of the local court and the decision of the appellate courts and appointed a new trial in the court of first instance.

Resolution of the Supreme Court on ensuring the participation of an interpreter in criminal proceedings

Case № 328/3292/16-k

An investigator, prosecutor or court shall ensure the participation of an interpreter in criminal proceedings if the person concerned has exercised the right granted to him to initiate the involvement of an interpreter and there are grounds for this provided by law.

This is stated in the decision of the panel of judges of the Second Judicial Chamber of the Criminal Court of Cassation of the Supreme Court, which considered the cassation appeal of the defense counsel of a man convicted under Part 1 of Art. 121 of the Criminal code of Ukraine (intentional grievous bodily injury), on a sentence of appellate court.

According to a local court decision, the person was sentenced to 5 years in prison. The Court of Appeal overturned the verdict of the court of first instance in terms of the sentence imposed and passed a new verdict: the man was imprisoned for 7 years.

In the cassation appeal, the lawyer asked to overturn the verdict of the appellate court, believing that the sentence imposed by the court of first instance was sufficient to correct the convict. In addition, the defense counsel pointed out the erroneousness of the circumstance established by the courts of both instances that the man is a citizen of Ukraine, as he is a citizen of the Russian Federation. According to the lawyer, in this connection it was necessary to involve an interpreter in the criminal proceedings, as the convict had a poor command of the Ukrainian language, which the appellate court did not provide the latter with an opportunity to report.

The decision of the Supreme Court states that the appellate court sentenced the convict in accordance with the law. In addition, the panel of judges of the CCC of the Supreme Court recognized the defense counsel's arguments that the convict was a citizen of the Russian Federation, had a poor command of the Ukrainian language and therefore the involvement of an interpreter in the criminal proceedings was mandatory, unfounded.

Analysis of the provisions of the Criminal Procedure Code of Ukraine and the Law of Ukraine "On Principles of State Language Policy" shows that the participation of an interpreter is carried out depending on the stage of criminal proceedings by the investigator, prosecutor or court. convicted person or his defense counsel) and the existence of grounds for this provided by law.

As it was established, the pre-trial investigation, proceedings in the courts of first and appellate instances were conducted in Ukrainian, procedural documents were drawn up in this language and the relevant ones were handed over to the man. At the same time, neither the latter nor his defenders indicated that the person had a poor command of the Ukrainian language and did not ask for an interpreter.

In addition, during the consideration of the case in the appellate court, the convict was given the floor three times, and from the copies of documents available in the materials of the proceedings it can be seen that he is a citizen of Ukraine.

The panel of judges of the CCC of the Supreme Court concluded that, given the above circumstances and given that the convict did not indicate the need to involve an interpreter in these criminal proceedings, the courts had no objective grounds to engage an interpreter on their own initiative.

The Supreme Court upheld the verdict of the appellate court.

No advance payment is paid for the execution of a court decision on the seizure of property to secure the claim - Supreme Court

Having unreasonably annulled the lawful and substantiated decision of the court of first instance, the appellate court erroneously considered that the state executor had rightly ruled to return the writ of execution to the claimant without acceptance for execution on the grounds of lack of receipt of advance payment.

The district court partially satisfied the claim of the citizen to declare illegal the actions of the state executor, who returned the executive document - the court decision on the seizure of movable property - as one that was not paid in advance. The decision is motivated by the fact that the court, which sent to enforce the decision to seize the property, is exempt from paying an advance payment for filing an application for enforcement of the decision.

However, the appellate court overturned the decision of the court of first instance in part to satisfy the claim and issued a new decision in this part, which denied the plaintiff's complaint. According to the Court of Appeal, the actions of the state executor meet the requirements of the Law of Ukraine "On Enforcement Proceedings".

The plaintiff appealed to the Court of Cassation, which was motivated by the fact that it was the court as a state body sent to enforce the decision to seize movable property. Therefore, he is exempt from paying an advance payment for filing an application for enforcement of the decision.

The Supreme Court, composed of a panel of judges of the First Judicial Chamber of the Civil Court of Cassation, upheld the plaintiff's cassation appeal, as stated in the decision of 05 September 2018 in case №635 / 5151/17-ts (proceedings №61-3271св18), in view of the following.

The Court of Appeal proceeded from the fact that the executive document is not accompanied by a receipt for payment of the advance payment, while not providing any confirmation that the plaintiff is exempt from such payment in accordance with the provisions of Part 2 of Art. 26 of the Law of Ukraine "On Enforcement Proceedings".

Instead, the Court of Cassation pointed out that in accordance with Art. 15 of this Law, the parties to the enforcement proceedings are the debt collector and the debtor. The collector is a natural person or a legal entity or the state in whose favor or in the interests of which the executive document is issued. The debtor is a natural or legal person determined by the executive document, the state, which is obliged to implement the decision.

The advance payment in enforcement proceedings is the funds paid by the collector to a separate budget account, which are used by the executor for the organization and conduct of enforcement actions in the manner and manner established by the Ministry of Justice of Ukraine.

In accordance with Part 5 of Art. 27 of the Law of Ukraine "On Enforcement Proceedings" enforcement fee is not charged on executive documents on confiscation of property, collection of periodic payments (except for executive documents on recovery of alimony, in the presence of arrears of alimony, the total amount of which exceeds the amount of payments for twelve months), seizure of property to secure claims under executive documents subject to immediate execution.

A systematic analysis of these norms gives grounds to conclude that both the executive fee and the advance payment are not paid for the execution of the court decision on the seizure of property, issued as a result of consideration of the application for taking measures to secure the claim.

Resolution of the Supreme Court on the application of Article 5 of the Criminal Code of Ukraine on the retroactive effect of the law on criminal liability in time

Case № 418/968/16-k

According to the Law of Ukraine "On the State Budget of Ukraine for 2017", the subsistence level for able-bodied persons was increased, as a result of which the minimum value of property for the theft of which criminal liability arises increased. However, this legal act is not a law on criminal liability, and therefore its adoption in this case did not improve the situation of perpetrators.

This is stated in the decision of the panel of judges of the Second Judicial Chamber of the Criminal Court of Cassation of the Supreme Court, which considered the cassation appeal of the prosecutor against the decision of the Court of Appeal.

Thus, according to the verdict of the local court, two men were convicted under Part 3 of Art. 185 of the Criminal code of Ukraine (theft combined with penetration into housing, other room or storage). According to the court decision, the persons, being in a state of intoxication, acting by prior agreement, entered the barn of the household by free access, from where they secretly stole corn grain worth a total of UAH 150 22 kopecks.

The Court of Appeal changed this sentence, reclassifying the actions of persons under Part 3 of Art. 185 of the Criminal Code of Ukraine on part 1 of Art. 162 of the Criminal Code of Ukraine (illegal entry into housing or other property of a person). In addition, he pointed out: the local court did not take into account the requirements of Art. 5 of the Criminal Code of Ukraine, according to which the law on criminal liability, which abolishes the crime, mitigates criminal liability or otherwise improves the situation of a person, has retroactive effect, ie applies to persons who committed the act before the entry into force of such law.

Як зауважив суд апеляційної інстанції, на час постановлення вироку був прийнятий Закон України «Про Державний бюджет України на 2017 рік», відповідно до якого збільшився розмір прожиткового мінімуму для працездатних осіб, а відтак зросла і мінімальна вартість майна, за крадіжку якого настає кримінальна відповідальність, – до 160 грн. З урахуванням того, що чоловіки викрали майно на суму 150 грн 22 коп., то, на думку апеляційного суду, в їхніх діях був склад злочину, передбаченого ч. 1 ст. 162 КК України, а не ч. 3 ст. 185 КК України.

The resolution of the Supreme Court pointed out that the Law of Ukraine "On the State Budget of Ukraine for 2017" is not a law on criminal liability, and therefore its adoption in this case did not improve the situation of men. And this corresponds to the Decision of the Constitutional Court of Ukraine of April 19, 2000 (case on the retroactive effect of the criminal law in time).

Therefore, the panel of judges of KKS as a part of VS noted, the court of appellate instance incorrectly applied requirements of Art. 5 of the Criminal Code of Ukraine and prematurely concluded that it is necessary to retrain the actions of men.

The Supreme Court overturned the decision of the Court of Appeal and appointed a new hearing in the Court of Appeal.

The Supreme Court ruled in the case to amend the Rules of Procedure of the HCCJ

Case №9901 / 460/18

On September 18, 2018, the Supreme Court ruled in an administrative case on a claim to the High Qualification Commission of Judges of Ukraine (third parties who do not make independent claims on the plaintiff's side: members of the Public Integrity Council) declaring illegal and invalid the provisions of the Rules judges of Ukraine.
The court upheld the claims in part.

In particular, the Court annulled p.p. 4.10.2. Regulations, which oblige the GRD to acquaint judges in advance with its conclusion or information of a negative nature, p. 4.10.3, which contains requirements for the content and design of information or conclusion of the GRD, non-compliance with which is the basis for leaving without consideration of such information or conclusion, as well as p. 4.10.6, which provides for mandatory documentary confirmation of the authority of the GRD representative at the meeting of the HCCJ. The court repealed these sub-items of the Rules of Procedure of the HCJC from the moment the court decision came into force.

Instead, the Court upheld n.p. 4.10.1 of the Regulations, which deals with the procedure for submitting information or the conclusion of the GRD to the High Qualification Commission, and p.p. 4.10.5, which determines the procedure for consideration by the High Qualification Commission of the conclusion or information of the GRD. It is these provisions of the Rules of Procedure of the High Qualification Commission of Judges of Ukraine concerning ensuring the legality and rights of judges during their qualification assessment.

Lustration can only be used to eliminate or significantly reduce the threat posed by the subject of lustration

case № 800/186/17

This conclusion was reached by the Supreme Court as a panel of judges of the Administrative Court of Cassation, considering on September 18, 2018 an administrative case on a lawsuit before the High Council of Justice to declare illegal and cancel the decision.

The court satisfied the plaintiff's claims, declared illegal and annulled the decision of the High Council of Justice of April 25, 2017 № 988/0 / 15-17 on recognizing the violation of incompatibility requirements by a judge of the Supreme Court of Ukraine and his dismissal. The court also overturned the decision of the High Council of Justice of May 23, 2017 № 1223/0/15 / -17 to leave without consideration the plaintiff's application for dismissal of a judge of the Supreme Court of Ukraine.

The Court noted that lustration could only be used to eliminate or substantially reduce the threat posed by the subject of lustration, the creation of a viable free democracy by the use of the official position to violate human rights or to block the democratization process.

Assessing the disputed GRP decision in the light of the principles of the Convention for the Protection of Human Rights and Fundamental Freedoms and the case law of the European Court of Human Rights, the  panel of judges found a violation of proportionality,  as in this case justify the purpose of the lustration process. The decision also states that the plaintiff intended to remove himself from the exercise of state power by submitting his resignation on July 11, 2016, which would have been the result of the lustration procedure.

Assessing the proportionality of the restrictions applied to the plaintiff, taking into account his resignation, in relation to the legitimate aim (cleansing of power) sought by the public authorities, the court finds them disproportionate, unjustified and unnecessary in a democratic society.

Clarification of a judge of the Administrative Court of Cassation of the Supreme Court on the peculiarities of the application of the terms of application of subjects of power to the administrative court in cases related to ongoing offenses

The omission of the procedural term should not serve as a means of legalizing the ongoing offense. The literal application of the terms of recourse to the courts with claims of business entities to business entities for the purpose of applying administrative and economic sanctions or counterclaims of business entities to declare illegal the relevant decisions of business entities may allow the latter to “legalize” in court. ongoing, including gross, violation of legislation in the field of business regulation. The problem in some areas is large-scale and difficult to solve.

Thus, it should be noted that the peculiarities of the application of the terms of application of the subjects of power to the administrative court in cases involving ongoing offenses are:

1) the ongoing offense involves being in a state of continuous long-term commission of illegal actions (inaction), in connection with which, as a rule, this should not be considered a failure of the statutory period of appeal to the administrative court with a lawsuit legal liability and this, too, can not be an unequivocal basis for the refusal of the state to apply coercive measures aimed at stopping such an offense;

2) setting deadlines for appealing to the administrative court and leaving the statement of claim without consideration on the basis of their omission may not serve the purpose of legalizing the ongoing offense and, accordingly, the implementation of illegal activities (inaction);

3) the term for bringing to justice of a public-law nature is established primarily in relation to forms of liability of a property (financial) nature and, as a rule, should not be applied to the taking of measures of legal responsibility aimed at stopping illegal behavior.