REVIEW OF THE SUN’S PRACTICE

Review of the practice of the Sun, published from August 16 to August 23, 2018

During this period, I would recommend paying attention to the following conclusions, resolutions and decisions:

The Supreme Court's decision to violate the principle of the directness of the investigation of evidence

Case No. 164/1509/15-k

By canceling the acquittal and issuing a conviction, the Court of Appeal should attach considerable importance to the principle of the directness of the investigation of evidence. Indeed, in this case the conclusion of the person's guilt is made directly by the court of appeal, in this connection, it must ensure all guarantees of the right to a fair trial, in order to ensure that the person will not be arbitrarily convicted. However, when the Court of Appeal finds that the arguments of the appeal of the participant in criminal proceedings in respect of the incompleteness of the proceedings (Article 410 of the UOC of Ukraine) and / or the non-compliance of the conclusions of the first instance court with the factual circumstances of the criminal proceedings (Article 411 of the Criminal Code of Ukraine) appear to be well-founded and need to be verified , the latter is carried out by re-examining the circumstances established in the course of criminal proceedings, subject to the requirements of Art. 404 of the Code of Criminal Procedure of Ukraine, which includes direct investigation and evaluation of evidence of such circumstances.

This position is expressed in the decision of the panel of judges of the Second Judicial Chamber of the Cassation Criminal Court as part of the Supreme Court of July 5, 2018 (case number 164/1509/15-k), adopted on the basis of the consideration of the cassation appeal of one convicted person and the defendant of another convict on the verdict of the Court of Appeal.

The conclusion expressed in the decision of the panel of judges of the First Judicial Chamber of the Cassation Criminal Court as part of the Supreme Court that the representative, protects the rights and legitimate interests of the owner or owner of the property, on which the decision of the investigating judge is arrested, is the subject of appeals against such a ruling.

Case No. 487/5688/16-k

According to clause 9 part 1 of Art. 309 of the Code of Criminal Procedure of Ukraine, the decision of the investigating judge on the arrest of property is subject to appeal. At the same time, the Code does not establish a clear list of persons - the subjects of the right to appeal the appeal of this ruling, and in paragraph 10 of Part 1 of Art. 393 of the Criminal Code of Ukraine states: the appeal may be filed by other persons in cases provided for by the Criminal Code of Ukraine.

One of the participants in both criminal and judicial proceedings is a third person, regarding the property of which the issue of arrest is decided (paragraphs 25, 26, part 1, Article 3 of the Code of Criminal Procedure of Ukraine). In Art. 64-2 The CPC of Ukraine determines the content and procedural status of this third person. At the same time, in the last par. Part 7 of Art. 173 of the Criminal Code of Ukraine provides: third parties have the right to a defender and the right to appeal a court decision on the seizure of property.

Under such circumstances, the owner of the property in respect of which the issue of arrest is being resolved is a person whose rights, freedoms and interests relate to the court decision, and therefore - belongs to the category of "other persons" who have the right to file an appeal against the decision of the investigating judge.

Due to the fact that by providing professional legal assistance, the lawyer protects the rights and legitimate interests of the owner of the property, which is subject to arrest during the pre-trial investigation, and the constitutional right to such assistance can not be limited, the conclusion of the court of appeal, the representative of the owner or the owner of the property in the sense of Item 10 of Part 1 of Art. 393 of the Criminal Code of Ukraine is not the subject of appeal appeal of the decision of the investigating judge, groundlessly, is stated in the ruling of the Supreme Court.

The conclusion of the Supreme Court of the need for judicial protection of the interests of the state, namely the prosecutor on behalf of the subject of authority, must be substantiated and confirmed by proper evidence

Case number 822 / 1169/17

The participation of the prosecutor in a judicial proceeding in administrative courts (in particular, a cassation appeal of court decisions) is possible, subject to, among other things, the substantiation of the grounds for applying to the court, namely, it must be proved that the interests of the state in the controversial legal relations of the subject of power are not implemented or improperly implemented, the competence of which is assigned the corresponding powers, or the absence of such a body is confirmed (Part 3, Article 4, Article 53 of the CAC of Ukraine, part 3, Article 23 of the Law of Ukraine "On the Prosecutor's Office").

The court explains that the prosecutor can not be considered an alternative subject to apply to the court and replace the proper subject of authority, which can and wants to protect the interests of the state.

To ensure that the interests of the state do not remain unprotected, the prosecutor performs a subsidiary role, replaces in the judicial proceedings of the relevant subject of authority, is absent or, contrary to the requirements of the law, does not protect or make it inappropriate. In each case, the prosecutor must bring (and the court to verify) the reasons that prevent the protection of the interests of the state by the appropriate subject and which are grounds for the prosecutor to appear before the court.

The reason for the prosecutor's representation of the state's interests in the court is the proper reasoning, supported by sufficient evidence, in particular, but not exclusively, by the notice of the prosecutor to the relevant subject of power to file a lawsuit on his behalf, with relevant inquiries, as well as copies of documents received from the subject authorities, indicating the existence of grounds for such representation.

The Court took into account that, in accordance with the established practice of the ECtHR, the parties to the proceedings, the plaintiff and defendant, who have equal rights, including the right to legal assistance. Support by the Prosecutor's Office of one of the parties may be justified under certain conditions, for example, in order to protect vulnerable persons who are considered incapable of defending their interests on their own, or in the event that the offense affects a large number of people or if real state interests or property require protection. The ECtHR has repeatedly drew attention to the participation of the prosecutor in court on the side of one of the parties as an circumstance that may affect the observance of the principle of equality of the parties.

Supreme Court ruling on the recognition of terrorist activities

Case number 225/6151/15-k

To attract a person to criminal liability under Art. 258-3 of the Criminal Code of Ukraine (the creation of a terrorist group or terrorist organization) does not require the decision of public authorities to recognize certain activities of a terrorist. This conclusion was made by the panel of judges of the Second Judicial Chamber of the Cassation Criminal Court within the Supreme Court, considering the cassation appeal of the prosecutor to the decision of the Court of Appeal of the Donetsk region of May 10, 2017, in the criminal proceedings on the charge of M. in the commission of a criminal offense under Part 1 of Art. 256 of the Criminal Code of Ukraine (assistance to members of criminal organizations and concealment of their criminal activity), namely "LNR", "DNR", which are recognized by terrorist organizations. The case of the activities of the DNR as a terrorist organization is confirmed by the appeals of the Verkhovna Rada of Ukraine to the United Nations, the European Parliament, the Parliamentary Assembly of the Council of Europe, the Parliamentary Assembly of NATO, the OSCE Parliamentary Assembly, the GUAM Parliamentary Assembly, the national parliaments of the states of the world on the recognition of the Russian Federation as an aggressor state, approved by the Resolution of the Verkhovna Rada of Ukraine dated January 27, 2015 No. 129-VIII, by the Verkhovna Rada of Ukraine "On Recognition of Ukraine the jurisdiction of the International one criminal court to commit crimes against humanity and war crimes by senior officials of the Russian Federation and leaders of terrorist organizations "DNR" and "LNR", which led to especially grave consequences and the massacre of Ukrainian citizens ", approved by the Verkhovna Rada of Ukraine from 4 February 2015, No. 145-VIII, by the Verkhovna Rada of Ukraine "On the Suppression of Armed Aggression of the Russian Federation and Overcoming Its Consequences", approved by Verkhole Noah Rada of Ukraine from April 21, 2015 number 337-VIII, in kotorыh "D HP" and "FSC" opredeleno terrorystycheskymy organizations.