Since the convicted person did not work anywhere, this casts doubt on the stay of his young child and elderly mother under his care. This conclusion was made by the Supreme Court in resolution № 202/482/16-k, the text of which is printed by “Law and Business”.
In the name of Ukraine
March 1, 2018, Kyiv, № 204/482/16-k
Supreme Court by the panel of judges of the second court chamber of the Court of Cassation, composed of:
chairman – YEMETS O.P., judges: BILIK N.V., OSTAPUK V.I. –
considered in an open court a cassation appeal of the prosecutor on the verdict of the Krasnogvardeysky district court of Dnipropetrovsk of April 28, 2016 and the ruling of the Court of Appeal of Dnipropetrovsk region dated January 11, 2017 concerning Person 1 in a criminal proceeding filed in the Unified Register of Pre-trial Investigations, on the charge of Person 1, Information 1, a citizen of Ukraine, a native and a resident of Dnipropetrovsk, previously convicted, in committing a crime, stipulated in Part 2 of Article 186 of the Criminal Code.
The content of judgments and the circumstances found by the courts the first and appellate instances
According to the verdict of the Krasnogvardeysky District Court of Dnipropetrovsk of April 28, 2016, the Person 1 was sentenced to punishment in the form of imprisonment for a period of 4 years within Part 2 of Article 186 of the Criminal Code. On the basis of Article 75 of the Criminal Code, Person 1 was released from serving the sentence with a probationary period of 2 years. On the basis of Article 77 of the Criminal Code during the probation, he must inform the criminal-executive inspection authority about any change in place of residence and work, periodically appear and register.
According to the court judgment, Person 1 was found guilty and convicted for recommitting a crime of explicit acquiring property of a private entrepreneur “Person 2” on 22.12.2015 at 3 pm in the shop “Information 2” located at Address 2, that harmed the victim of 338,52 hryvnas.
By the ruling of the Court of Appeal of Dnipropetrovsk region dated January 11, 2017, the sentence regarding the Person 1 was upheld.
The requirements of the cassation appeal and the summary of the arguments of the person who filed it
In a cassation appeal, the prosecutor raises the issue of the cancellation of court decisions regarding the Person 1 and the appointment of a new trial in the court of appeal. It is considered that the application of Article 75 of the Criminal Code is groundless. He indicates that the court of the 2nd instance the sentence on the Person 1 was upheld unjustly, since the sentence imposed on the convicted person does not correspond to the severity of the criminal offense and the convicted person due to the leniency of the punishment. In addition, the prosecutor refers to the alleged violations of the requirements of the criminal procedural law by the court of appeal, and therefore considers that the ruling of the court of appeal does not meet the requirements of Article 419 of the CPC. For these reasons, it asks to cancel the ruling of the Court of Appeal and to appoint a new trial in the court of appellate instance.
The positions of other parties to the court proceeding
Prosecutor Matyusheva O.V. requested to grant a portion of the cassation appeal.
The grounds of the Court
The ruling of the Court of Appeal is the decision of the high court regarding the legality and validity of the sentence and verdicts, which are verified in an appeal procedure and must comply with the same requirements as the verdict of the court of the first instance, that is, to be lawful and substantiated.
According to Article 419 of the CPC in the ruling of the Court of Appeal, among other things, it should be noted: the brief content of the requirements set out in the appeals and the content of the court decision of the court of the first instance; generalized arguments of the person who filed the appeal, and a summary of the positions of other parties of the proceeding; the circumstances found by the courts of the first and appellate instances with references to the evidences; the grounds for the recognition of the individual evidence to be inadmissible or inappropriate, and which the court of appeal based on when ruling, as well as the provisions of the law that guided the court decision.
The specified requirements of the law have not been met by the court of appeal during the review of the sentence.
It is apparent from the materials of the proceeding that the court of appeal, indicating the brief content of the sentence in the ruling, set out the factual circumstances differently than those, which were found by the district court, and groundlessly came to the conclusion that there is another offence in the actions of the Person 1.
Also, the materials of the criminal proceeding have established that the prosecutor in his appeal has pointed to the misapplication of the law on criminal liability, namely – Article 75 of the Criminal Code, in imposing punishment on the Person 1, as a result of which he was sentenced to a lenient punishment, and therefore raised the question of abolition of the verdict of the local court and the adoption of a new one, which requested the conviction of the Person 1 under Part 2 of Article 188 of the Criminal Code and imposing a real punishment.
The Court of Appeal, refusing to satisfy the complaint of the prosecutor, upheld the decision of the local court on the release of the Person 1 from serving a sentence with a probation within Article 75 of the CC.
However, such an opinion of the Court of Appeal cannot be accepted, since it is not based on the general principles of the punishment imposed in Article 65 of the Criminal Code, according to which, in imposing a sentence, the court must take into account the degree of gravity of the offence, the person guilty and the mitigating and aggravating circumstances. The person who committed the crime should be punished in a sufficient way for its rectify and prevention of new crimes.
When deciding on the release of a convict from serving a sentence with a probation within Article 75 of the Criminal Code, the court should also take into account the severity of the offence, the person guilty, following the general principles established by law, with regard to the imposition of a punishment.
In particular, the Court of Appeal did not properly examine all the arguments of the prosecutor, set forth in the appeal, and did not investigate the validity of the application of the provisions of Article 75 of the Criminal Code in imposing a punishment on the Person 1, since the court did not take into account the severity of the crime committed, which according to Article 12 of the Criminal Code fell within the category of most serious crimes, data on the identity of the perpetrator, who is a person previously convicted, is indirectly characterized by the place of residence.
In addition, it is apparent from the materials of the proceeding that the convict did not work anywhere, was not engaged in socially useful work, which questioned the presence of a minor child and the elderly mother.
Moreover, the court of appeals came to the conclusion that there is a circumstance that mitigates the punishment – a sincere repentance. However, this circumstance was not established by the court of first instance.
In such circumstances, the ruling of the Court of Appeal should be canceled and a new trial in the court of appeals should be assigned.
In the course of a new trial, the Court of Appeal should properly examine the arguments of the prosecutor’s appeal and make a legitimate and substantiated decision. If during the new trial the amount of the accusation will not change, other circumstances that may influence the findings of the court regarding the punishment of the Person 1 will not be established, then the punishment imposed on him within Article 75 of the Criminal Code should be considered as lenient.
In accordance with Article 434, 436 of the CPC and paragraph 15 of 4291XI “Transitional Provisions” of the CPC (as amended by the Law dated October 3, 2017, № 2147-VIII), the Court
To partially satisfy the cassation appeal of the prosecutor.
To cancel the ruling of the Court of Appeal of Dnipropetrovsk region of January 11, 2017 concerning the Person 1 and to appoint a new trial in the court of appeal.
The resolution is final and could not be appealed.