In the case of repetition of identical offenses, one of which was committed before the adoption of the previous sentence, and the other – after, special rules of Part 4 of Art. 70 of the Criminal Code do not apply. In such a case, the court qualifies criminal offenses under one article or part of an article of the Special Part of the Criminal Code and assigns the punishment provided by its sanction, and determines the final punishment according to the rules of Art. 71 of the Criminal Code according to the totality of sentences. Circumstances of the case: according to the verdict of the local court, PERSON_1 was convicted under Part 2 of Art. 185 of the Criminal Code (for the commission of the crime on 12/28/2018 before the preliminary verdict was issued on 01/17/2019) to imprisonment for a term of 3 years. On the basis of Part 4 of Art. 70 of the Criminal Code for the set of crimes PERSON_1 is sentenced to imprisonment for 4 years.
and the commission of the crime on January 28, 2019, PERSON_1 was convicted under Part 2 of Article 195 of the Criminal Code to imprisonment for a term of 3 years. On the basis of Part 1 of Art. 71 of the Criminal Code, according to the set of sentences PERSON_1 was finally sentenced to imprisonment for a term of 4 years and 3 months.
The verdict established that on December 28, 2018, PERSON_1, while in PERSON_2's car, secretly stole UAH 500 from the victim's wallet. In addition, on January 28, 2019, while on the territory of PERSON_2's home, he secretly stole an electric drill worth UAH 433.33 belonging to the victim from the shed.
By the decision of the court of appeals, the verdict against PERSON_1 in accordance with Part 2 of Art. 404 of the CPC has been amended. It was decided to calculate PERSON_1's sentence from 04.02.2020, crediting him on the basis of Art. 72 of the Criminal Code in the term of punishment is the term of detention from 25.11.2019 to 23.01.2020 inclusive, with the calculation of one day of detention for one day of deprivation of liberty. In the rest, the sentence against PERSON_1 was left unchanged.
Grounds for consideration of the criminal proceedings of the OP: the need to depart from the conclusion regarding the application of the rule of law in similar legal relations, set out in previously adopted decisions of the Supreme Court, namely the resolutions of 01.15.2020 (case No. 585/1603/17, proceedings No. 51-3290km19), from 07/29/2020 (case No. 541/715/17, proceedings No. 51-7898km18) and from 07.10.2019 (case No. 723/1538/16-k, proceedings No. 51-8625km18). The subject of the review of this case is the issue of punishment for criminal offenses, the responsibility for which is stipulated by one article (part of the article) of the Special Part of the Criminal Code in the case of their commission by a person both before and after the adoption of a preliminary sentence.
OP's position: the verdict of the local court and the decision of the appellate court have been changed. Excluded from the sentence and resolution of the decision of the previous instances on the punishment of PERSON_1 under Part 2 of Art. 185 of the Criminal Code separately for each episode of theft and the imposition of punishment on the basis of Part 4 of Art. 70 of the Criminal Code, appointed PERSON_1 under Part 2 of Art. 185 of the Criminal Code is punishable by imprisonment for a term of 3 years. On the basis of Art. 71 of the Criminal Code, based on the set of sentences, the unserved part of the sentence from the previous sentence was partially added to the sentence, and PERSON_1 was finally sentenced to imprisonment for a term of 4 years and 3 months.
Justification of OP's position: OP, having analyzed the norms of the Criminal Code and the Code of Criminal Procedure, draws attention to the fact that the legislation of Ukraine on criminal responsibility and criminal procedural legislation does not contain provisions that the criminal offenses that form part 1 of Art. 32 of the Criminal Code, the repetition of identical criminal offenses must be separately qualified and for each offense qualified under one article or part of the article, a separate punishment must be imposed.
The classification of two or more identical criminal offenses and the imposition of punishment for them is carried out in accordance with established judicial practice. Thus, the rules of sentencing for a set of criminal offenses provided for by law (Article 70 of the Criminal Code) are applied in cases of independent qualification of the committed both under different articles and under different parts of one article of the criminal law, which provide for responsibility for separate components of criminal offenses and which have independent sanctions According to the same rules, a punishment is also imposed in the case of a person committing acts, part of which qualifies as a completed criminal offense, and the rest as preparation for or attempt to commit a criminal offense. Punishment is not imposed for individual episodes of criminal activity or for individual items (parts of articles) of the Criminal Code that do not have an independent sanction.
If the committed criminal offenses, in addition to repetition, also form a totality, they are in accordance with Part 2 of Art. 33 of the Criminal Code should receive a separate qualification (for example, theft without qualifying features and theft, committed repeatedly, or theft combined with house breaking). If the criminal offenses that form a repetition correspond to the same composition of the criminal offense (for example, three thefts combined with house breaking, five robberies committed by an organized group, etc.), their qualification is carried out under one article or part of the Special Article parts of the CC. In such cases, the repetition of criminal offenses must be noted in the procedural documents relating to the person's accusation as a qualifying feature of the relevant criminal offences.
Punishment on the basis of Part 4 of Art. 70 of the Criminal Code in case of repetition of the same criminal offenses will lead to the application of the criminal law by analogy, which is expressly prohibited by Part 4 of Art. 3 of the Criminal Code, and violation of the requirements of certainty of the criminal law. The rules for imposing punishment for a set of criminal offenses are stricter than in the case of repetition, since in the latter case the court does not have the right to exceed the maximum sanction of the article of the Special Part of the Criminal Code, which provides for responsibility for committed criminal offenses, and in the case of application of Art. 70 of the Criminal Code provides for this possibility (if at least one of the criminal offenses included in the aggregate is an intentional serious or particularly serious crime).
Thus, if a person's actions involve repetition of criminal offenses, provided for in Part 1 of Art. 32 of the Criminal Code, and this person is convicted of committing several identical criminal offenses that are qualified under one article or part of the article of the Special Part of the Criminal Code, and one or more of them were committed before the adoption of the previous sentence, and one or more – after its adoption , then the special rules of Part 4 of Art. 70 of the Criminal Code do not apply. In this case, the court qualifies the specified criminal offenses under one article or part of the article of the Special Part of the Criminal Code and assigns the punishment provided for by its sanction, and determines the final punishment according to the rules of Art. 71 of the Criminal Code according to the totality of sentences.
In this criminal proceeding, the court of first instance found it established that PERSON_1 committed thefts that contain the qualifying feature "repetition", therefore, each of the criminal acts contains the composition of the crime provided for in Part 2 of Article 185 of the Criminal Code. However, as it was found out during the investigation and trial of the criminal proceedings, the accused PERSON_1 was sentenced by the verdict of the local court under Part 3 of Art. 185 of the Criminal Code with the application of Part 4 of Art. 70 of the Criminal Code to imprisonment for 4 years and on the basis of Art. 75 of the Criminal Code is released from serving a sentence with probation for a period of 3 years. Thus, PERSON_1 committed one of the thefts before, and the second after the adoption of the preliminary sentence. The court of first instance made a decision to appoint separate punishments for each of the crimes qualified under one part of the article of the Special Part of the Criminal Code, which has one sanction, and to apply them as requirements of Part 4 of Art. 70, as well as the requirements of Part 1 of Art. 71 of the Criminal Code.
However, the decision of the local court (with the conclusions of which the appellate court unreasonably agreed) to impose punishment on the convicted person under Part 2 of Art. 185 of the Criminal Code for separate episodes of theft and application of Part 4 of Art. 70 of the Criminal Code is an incorrect application of the law of Ukraine on criminal liability. Therefore, from the verdict of the local court and the decision of the appellate court, the decision of the court authorities on the punishment of PERSON_1 under Part 2 of Art. 185 of the Criminal Code separately for each episode of theft and the imposition of punishment on the basis of Part 4 of Art. 70 CC.
At the same time, it can be seen from the case materials that PERSON_1 was convicted under Part 3 of Art. 185 of the Criminal Code, Part 4 of Art. 70 of the Criminal Code to the penalty of imprisonment for a term of 4 years with release on the basis of Art. 75 of the Criminal Code from serving it with probation for a period of 3 years. The new crime was committed by him after the previous sentence was passed during the probationary period, and therefore, in view of the provisions of Part 3 of Art. 78 of the Criminal Code, his final punishment must be determined according to the rules provided for in Art. 71 of the Criminal Code, namely by the totality of sentences.
Conclusion: if the person's actions involve repetition of criminal offenses, provided for in Part 1 of Art. 32 of the Criminal Code, and this person is convicted of committing several identical criminal offenses that are qualified under one article or part of the article of the Special Part of the Criminal Code, and one or more of them were committed before the adoption of the previous sentence, and one or more – after its adoption , then the special rules of Part 4 of Art. 70 of the Criminal Code do not apply. In such a case, the court qualifies the specified criminal offenses under one article or part of the article of the Special Part of the Criminal Code and assigns the punishment provided by its sanction, and determines the final punishment according to the rules of Art. 71 of the Criminal Code according to the totality of sentences.
A separate opinion was expressed in the case.
You can read more about the text of the resolution of the OP dated February 8, 2021 in case No. 390/235/19 (proceedings No. 51-2177kmo20) at the link https://reyestr.court.gov.ua/Review/94974219 .
Separate opinion https://reyestr.court.gov.ua/Review/94999836 .