The only criterion for declaring evidence inadmissible is obvious inadmissibility, which consists in the absence of doubt that the Criminal Procedure Code has been violated. This conclusion was made by the Supreme Court in Resolution No. 235/4339/17-k, the text of which is given below.
Supreme Court
In the name of Ukraine
Decree
November 30, 2021, Kyiv #235/4339/17-k
The Supreme Court by the panel of judges of the second judicial chamber of the Criminal Court of Cassation consisting of:
chaired by L.Yu. KISHAKEVYCHA,
judges: YEMTSYA O.P., OSTAPUKA V.I. —
considered in an open court session the cassation appeal of the prosecutor, who participated in the consideration of the criminal proceedings by the court of first instance, against the decision of the Donetsk Court of Appeal dated 27.04.2021 in the criminal proceedings regarding Person 1, Information 1, a native of Krasnoarmiisk, who lives at Address 1 , convicted: 29.07.2016 under Part 2 of Article 186 of the Criminal Code to imprisonment for 4 years, with exemption from serving it on the basis of Article 75 of the Criminal Code with a probationary period of 2 years, acquitted of committing a criminal offense, provided Part 2 of Article 185 of the Criminal Code;
Person 2, Information 2, a native of Krasnoarmiisk, who lives at Address 2, was convicted on 22.07.2016 under part 1 of Article 186 of the Criminal Code to a sentence of imprisonment for 2 years with exemption from serving it on the basis of Article 104 of the Criminal Code with probationary period for 1 year, accused of committing a criminal offense, provided for in part 2 of article 185 of the Criminal Code.
The content of contested court decisions and the circumstances established by the courts
By the verdict of the Krasnoarmy city and district court of the Donetsk region dated November 24, 2020:
Person 1 was found not guilty of committing the criminal offense provided for in Part 2 of Article 185 of the Criminal Code and was acquitted due to lack of evidence that the criminal offense was committed by him;
Person 2 was found guilty and sentenced under Part 2 of Article 185 of the Criminal Code to imprisonment for 1 year. On the basis of Article 71 of the Criminal Code, the unserved part of the sentence of the Krasnoarmy City District Court dated 22.07.2016 was added to the punishment according to the specified sentence, and according to the totality of the sentences, Person 2 was finally sentenced to imprisonment for 2 years and 2 months. Procedural costs in the amount of UAH 395 were collected from Person 2 in favor of the state.
By the body of the pre-trial investigation, Person 1 and Person 2 were accused of the fact that, on 07/20/2017, while they were near the "Lisohirska Hreblya" reservoir in the village of Shevchenkove, Pokrovska, Donetsk region, after drinking alcohol together, around 4:40 p.m., they decided to steal a bicycle . Pursuant to their criminal intent, aimed at the secret theft of someone else's property, Person 1 and Person 2, according to a previous conspiracy, secretly and repeatedly stole a sports bike of the Winner Amigo brand, worth UAH 1,850, causing material damage to the victim Person 3 in the specified amount.
After that, on 20.07.2017, around 7:40 p.m., acting according to a previous conspiracy, Person 1, near house No. 19 in Shakhtarskyi microdistrict in the city of Pokrovsk, Donetsk region, handed Person 2 a stolen Winner Amigo bicycle, which the latter handed over to a pawnshop the next day .
By the decision of the DAS dated 04/27/2021, the verdict of the Krasnoarmy District Court dated 11/24/2020 was left unchanged.
Requirements of the cassation appeal and generalized arguments of the person who filed it
In the cassation appeal, the prosecutor who participated in the court of first instance, disagreeing with the decision of the court of appeal, asks to cancel it and appoint a new trial in the court of appeal. At the same time, it refers to the incorrect application of the law on criminal responsibility and significant violations of the requirements of the criminal procedural law.
Thus, in particular, the prosecutor notes that the appellate court, agreeing with the decision of the court of first instance regarding recognition of certain evidence as inadmissible, did not properly check the criteria for the admissibility of the specified evidence, and did not give reasons for its decision <…>.
Motives of the Court
As can be seen from the content of the sentence, the court of first instance noted that the prosecution did not prove during the trial that the criminal offense — the theft of the bicycle of the victim Person 3 was committed by the accused Person 1, including with a prior conspiracy with the accused Person 2, in connection which found Person 1 innocent of the charge and acquitted him on the basis of clause 2 part 1 of article 373 of the Criminal Procedure Code. At the same time, the court decided that the qualifying feature — the commission of a criminal offense by a prior conspiracy by a group of persons, namely, with the accused Person 1 — should be excluded from the accusation against Person 4. Therefore, during the trial, Person 2 was proven guilty of committing a criminal offense provided for in .2 of Article 185 of the Criminal Code.
Disagreeing with the court's verdict, the prosecutor filed an appeal in which, referring to the illegality and groundlessness of the decision, significant violations of the requirements of the criminal procedural law, incorrect application of the law on criminal responsibility due to the non-application of the applicable law, he asked to cancel it and issue a new sentence , by which to find Person 1 and Person 2 guilty of committing the crime charged against them with the appropriate punishment.
Among the arguments of the appeal, the prosecutor noted that the court of first instance had unfoundedly recognized as inadmissible evidence the protocols of identification of Person 5 based on photographs, as well as the testimony of the witness of Person 6.
However, the appellate court, having reviewed the criminal proceedings based on the prosecutor's appeal, in violation of the requirements of Article 419 of the Criminal Procedure Code, did not properly analyze the content of his appeal, noting that the panel of judges of the appellate court does not see grounds for changing or canceling the verdict of the court of first instance.
However, the collegium of judges of the court of cassation considers such conclusions of the appellate court unacceptable.
Thus, according to Article 94 of the Criminal Procedure Code, the court based on its internal conviction, which is based on a comprehensive, complete and impartial investigation of all the circumstances of the criminal proceedings, guided by the law, evaluates each piece of evidence from the point of view of propriety, admissibility, credibility, and the totality of the collected evidence from the point of view sufficiency and interrelationship for making an appropriate procedural decision.
According to Part 1 of Article 87 of the Criminal Procedure Code, evidence obtained as a result of a significant violation of human rights and freedoms guaranteed by the constitution and laws, international treaties, the consent of which is binding by the Verkhovna Rada, as well as any other evidence obtained thanks to information obtained as a result of a significant violation of human rights and freedoms.
A systematic analysis of the criminal procedural law shows that the court's conclusions regarding the evaluation of the evidence should be set out in the verdict in precise and categorical judgments that would exclude doubts about the authenticity of this or that evidence. In turn, the only criterion that the court should be guided by when recognizing or not recognizing evidence as inadmissible at the stage of the trial is the criterion of obviousness of inadmissibility, which consists in the absence of doubt that the Code of Criminal Procedure has been violated.
Thus, while evaluating the evidence in the proceedings against Person 1 and Person 2, the court of first instance noted that in this case there were violations of the requirements of the criminal procedural law during the receipt of certain evidence. In particular, it concerns the protocol of presentation of a person for identification by photographs dated 08/19/2017, where the witness Person 6 among the photographs presented to her recognized the accused Person 1 as the person who on 07/20/2017 approached her pavilion on a red Winner Amigo bicycle – black, etc.
According to the prescriptions of part 6 of article 228 of the Criminal Procedure Code, if necessary, identification can be carried out by photographs, in compliance with the requirements specified in parts 1 and 2 of this article. In particular, before presenting a person for identification, the investigator, prosecutor must find out whether the person who recognizes can recognize this person, question him about the appearance and signs of this person, as well as about the circumstances under which he saw this person, what the protocol is about. If a person declares that he cannot name the signs by which he can recognize a person, but he can recognize him by a set of signs, the protocol states which set of signs he can recognize a person by.
Having assessed the said protocol, the court of first instance established that although the witness Person 6 recognized the accused Person 1 from the photographs, the other persons depicted in the photographs, in the opinion of the court, had differences in age, appearance and clothing. As a result, the court decided that it cannot accept this evidence as admissible, since it was obtained contrary to the procedure established by the Code of Criminal Procedure, namely Article 228 of the Code of Criminal Procedure.
However, such conclusions of the court are an unacceptable assumption, because when reviewing the court's verdict in the appeal procedure, the court of appeal did not pay attention to the fact that the presentation of the person for identification was carried out in accordance with the requirements of Article 228 of the Criminal Code, the person in the photographs must be of the same gender and did not have sharp differences in age, appearance with a recognizable person. Thus, the panel of judges comes to the conclusion that no significant violations of the criminal procedural law were committed during the conduct of this investigative action, and the arguments of the prosecutor about the groundless recognition of the protocol of presentation of a person for identification by photographs from 19.08.2017 as inadmissible evidence remained without specifying the reasons, of which these arguments are recognized as unfounded.
In addition, the well-founded arguments of the prosecutor's appeal about significant violations of the criminal procedural law, admitted by the court of first instance, when assessing the testimony of the witness Person 6, remained without proper motivation and verification by the appellate court. Without checking the arguments of the prosecutor's appeal in this part, the appellate court instance only formally noted that the district court correctly rejected these statements, as they do not confirm the fact that Person 1 stole the bicycle, without properly motivating its findings.
Thus, the appellate court did not provide reasoned answers to the specified arguments of the prosecution's appeals, limited itself only to their presentation in its court decision and a formal indication of groundlessness, which violated the requirements of Articles 370, 419 of the Criminal Procedure Code, which entailed incorrect application of the law of Ukraine on criminal liability due to non-application of the applicable law.
Taking into account the above, the panel of judges of the court of cassation believes that the cassation appeal of the prosecutor who participated in the review of the criminal proceedings by the court of first instance should be satisfied, the decision of the court of appeal should be annulled, and the criminal proceedings should be assigned to a new trial in the court of appeal.
During a new appellate review, the court must check all the arguments presented in the prosecutor's appeal, taking into account the arguments of his cassation appeal, in particular, evaluate the evidence from the point of view of propriety, admissibility, credibility, and their totality — from the point of view of sufficiency and interconnection, and for if there are grounds for this — by re-examining the circumstances of the criminal proceedings, after which a legal, substantiated and reasoned court decision will be passed.
Guided by Articles 433, 434, 436, 438, 441, 442 of the CPC, the Supreme
RESOLVED:
The cassation appeal of the prosecutor, who participated in the consideration of the criminal proceedings by the court of first instance, should be satisfied.
The decision of the Donetsk Court of Appeal dated 04/27/2021 in the criminal proceedings against Person 2 and Person 1 shall be annulled and a new trial shall be ordered in the court of appeal.
The ruling is final and cannot be appealed.