Application of Art. 369-2 of the Criminal Code of Ukraine during the period when the footnote to this article referred to the invalid Law of Ukraine "On Principles of Prevention and Counteraction of Corruption"; resolution of the issue of the possibility of concluding an agreement with the application of Art. 75 of the Criminal Code of Ukraine (exemption from serving a sentence with probation) in criminal proceedings related to corruption offenses; notification of suspicion to a special subject; assessment of the admissibility of evidence in the context of the question of compliance with the rules of investigation, as well as the determination of the prosecutor and the investigator in a specific criminal proceeding – this was explained by the judge of the Criminal Court of Cassation as part of the Supreme Court, Mykola Mazur , during the online workshop.
The speaker noted that during the 5 years of procedural activity, the Supreme Court formed the appropriate judicial practice regarding the consideration of criminal proceedings on corruption criminal offenses, criminal offenses related to corruption (hereinafter – corruption offenses). These cases are quite complex, because often in cassation appeals against court decisions in this category of criminal proceedings, a large number of arguments are presented, which the Supreme Court must evaluate.
The first issue, which Mykola Mazur highlighted, is regarding the application of Art. 369-2 of the Criminal Code of Ukraine during the period when the note to this article referred to the invalid Law of Ukraine "On Principles of Prevention and Counteraction of Corruption". "This issue concerns the imperfection of the criminal legislation, repeated amendments to the laws. And the quality of such changes is not always high," the speaker emphasized.
Thus, in 2014, a situation arose related to the introduction of changes to notes 3 and 4 of Art. 364 of the Criminal Code of Ukraine. The disposition of part 1 of this article states: "Abuse of power or official position <…>, if it caused significant damage to the legally protected rights, freedoms, and interests of individual citizens, or state or public interests, or the interests of legal entities."
That is, the provision refers to the concept of "substantial damage". In Note 3, in the edition before 2014, it was written: "Substantial damage in Articles 364, 364-1, 365, 365-1, 365-2, 367, if it consists in the infliction of material damage, is considered such damage, which in one hundred and more than times higher than the tax-free minimum income of citizens". Due to the amendment, the current version of note 3 does not contain the words "if it consists in causing material damage". So the question arose, how to apply Art. 364 of the Criminal Code of Ukraine.
In the resolution dated October 27, 2016 in case No. 5-99кс16, the Supreme Administrative Court concluded that Art. 364 of the Criminal Code of Ukraine shall be applied in case of property damage of the appropriate amount or non-property damage that has received a property assessment of the appropriate amount.
"Again, a similar problem regarding the interpretation of the norms of the Criminal Code of Ukraine arose when the Law of Ukraine "On Prevention of Corruption" was adopted instead of the Law of Ukraine "On Principles of Prevention and Combating Corruption", but no changes were made to the note to Art. 369-2 of the Criminal Code of Ukraine, which contained a reference to the previous Law of Ukraine," emphasized Mykola Mazur.
The speaker reminded that the provision of this article provides for liability for the offer, promise or granting of an unlawful benefit to a person who offers or promises (agrees) for such a benefit or for providing such a benefit to a third party to influence the decision-making by a person authorized to perform the functions of the state or local self-government .
In the note to Art. 369-2 of the Criminal Code of Ukraine states who are the persons authorized to perform the functions of the state or local self-government. In the previous version of the note, it was stated that "the persons authorized to perform state functions are the persons defined in clauses 1-3 of the first part of Article 4 of the Law of Ukraine "On Principles of Prevention and Counteraction of Corruption". The current version of the note reads: "Persons authorized to perform the functions of the state or local self-government are the persons specified in clause 1, sub-clause "a" of clause 2 of the first part of article 3 of the Law of Ukraine "On Prevention of Corruption", as well as officials specified in part four of Article 18 of this Code".
In 2020, the panel of judges of the Third Judicial Chamber of the Supreme Court of the Supreme Court (decision dated June 3, 2020 in case No. 722/28/17) considered the cassation appeal of the defense attorney against the verdict of the Court of Appeal in criminal proceedings on the charge of a person for committing a criminal offense provided for in Part 2 of Article . 369-2 of the Criminal Code of Ukraine. One of the arguments of the cassation appeal of the defender was, in his opinion, incorrect application by the appellate court of Art. 369-2 of the Criminal Code of Ukraine, taking into account the fact that at the time of the actions for which the person was accused (September 8, 2016), paragraphs 1-3 of part 1 of Art. 4 of the Law of Ukraine "On Principles of Prevention and Counteraction of Corruption", to which the footnote to Art. 369-2 of the Criminal Code of Ukraine, became invalid in connection with the entry into force and implementation of the Law of Ukraine "On Prevention of Corruption".
During the consideration of the case, the Supreme Court relied, in particular, on the practice of the ECtHR, its interpretation of Art. 7 of the Convention on the Protection of Human Rights and Fundamental Freedoms (decision of April 11, 2013 in the case of "Virentsov v. Ukraine", of July 12, 2016 in the case of "Ruban v. Ukraine").
According to Mykola Mazur, in this criminal proceeding, the Supreme Court drew attention to the fact that although, indeed, the note to Art. 369-2 of the Criminal Code of Ukraine contained a reference to the invalid Law, but the latter was not simply canceled by the Verkhovna Rada of Ukraine, but a new similar Law was adopted in its place, which also defined subjects authorized to perform state functions. "Accordingly, a succession of legal regulations took place. In contrast to Art. 364 of the Criminal Code of Ukraine, the note to which the legislator made changes, in this case the legislator's actions do not indicate the intention to decriminalize the composition of the crime provided for in Article 369-2 of the Criminal Code of Ukraine," the judge of the Supreme Court of Appeals of Ukraine noted.
The Supreme Court concluded that, taking into account the circumstances of this criminal proceeding, the application of Part 2 of Art. 369-2 of the Criminal Code of Ukraine did not go beyond the narrow interpretation of the concept of "persons authorized to perform state functions" contained in the disposition of this article, and was not based on the analogy of the law. At the same time, the affiliation of prosecutors and judges to persons authorized to perform the functions of the state, given their constitutional and legislative status and powers, cannot cause doubts not only among professional lawyers, but also among any other person.
As a result, the Supreme Court did not agree with the arguments of the cassation appeal of the defender that due to the application of Part 2 of Art. 369-2 of the Criminal Code of Ukraine in this criminal proceeding, the requirements of Part 4 of Art. 3 of the Criminal Code of Ukraine and Art. 7 of the Convention.
This position of the panel of judges of the Third Judicial Chamber was supported by the joint chamber of the CCS of the Supreme Court in the resolution of March 29, 2021 in case No. 554/5090/16-k, in which it made the following conclusion. The subject of the criminal offense provided for in Part 2 of Art. 369-2 of the Criminal Code of Ukraine, is any natural person who has reached the age of criminal responsibility at the time of its commission, who, with the knowledge of the one who offers, promises or provides an undue benefit, is capable of exerting real influence on the person authorized to perform the functions state or local government. In the absence of a substantive component of the note of Art. 369-2 of the Criminal Code of Ukraine due to its reference to clauses 1–3 of part 1 of Article 4 of the Law of Ukraine "On Principles of Prevention and Counteraction of Corruption", which expired at the time of the commission of the crime, the law enforcement officer has reasons to consider the concept of "a person authorized to perform the functions of the state" to be evaluative and to establish its meaning according to the rules of a narrow approach to interpretation, where the investigators belong to of persons authorized to perform the functions of the state, given their legal status and authority, does not raise doubts.
Also, Mykola Mazur outlined another important issue that came before the CCS of the Supreme Court and is currently being considered by the Grand Chamber of the Supreme Court (case No. 947/10464/21): is it possible in criminal proceedings related to corruption offenses to conclude an agreement with the application of Art. 75 of the Criminal Code of Ukraine (exemption from serving a probationary sentence).
In scientific literature and judicial practice, two approaches to the interpretation and application of parts 1 and 2 of Art. 75 of the Criminal Code of Ukraine. The first comes down to the fact that Part 1 of Art. 75 of the Criminal Code of Ukraine establishes a general prohibition of exemption from serving a sentence with probation for corruption offenses, which also applies to cases of approval of plea agreements. The second of them is based on the position that Part 2 of Art. 75 of the Criminal Code of Ukraine contains a separate rule, which is not subject to the limitation provided for in Part 1 of this article regarding exemption from serving a probationary sentence for corruption offenses. Thus, in the case of approval of a plea agreement with the relevant conditions, the court must make a decision on the release of the person from serving the sentence, even when it is a corruption offense.
"The VP of the Supreme Court will formulate its conclusion on this issue, which will undoubtedly have a significant impact on judicial practice regarding the consideration of criminal proceedings on corruption offenses," the speaker said.
Mykola Mazur drew attention to the important decision of the VP of the Supreme Court regarding the application of the previous edition of Art. 481 of the Criminal Procedure Code of Ukraine on notification of suspicion to a special entity (decision dated December 11, 2019 in case No. 536/2475/14‑k). The Grand Chamber of the Supreme Court made the following conclusions regarding the exclusive legal problem.
The guarantee of the independence of judges is ensured by the fact that only the Prosecutor General or his deputy checks the grounds for notifying a judge of suspicion, drafts and signs its text, and can also notify of a new suspicion or change a previously notified suspicion. A written notification of a judge's suspicion, which involves the approval and subsequent signing of such a procedural document, can be made only by the Prosecutor General or his deputy. This authority of the Prosecutor General or his deputy is exclusive and cannot be delegated to other persons. The Prosecutor General or his deputy exercise the authority to notify a judge of suspicion in writing, regardless of whether they exercise procedural leadership in a specific criminal proceeding. The Prosecutor General or his deputy may instruct the delivery of the received (composed) and signed by them notice of suspicion of the judge to the subject authorized to carry out procedural actions in a specific criminal proceeding. Delivery of a notice of suspicion to a judge by an authorized entity, provided that such a decision was made (drafted) and signed by the Prosecutor General or his deputy, does not violate the guarantee of judicial independence.
The judge of the CCS of the Supreme Court emphasized that the Supreme Court of Justice made a conclusion on the application of the norms of law that were in effect before the adoption of the Law of Ukraine dated October 4, 2019 No. 187-IX "On Amendments to Some Legislative Acts of Ukraine Regarding the Improvement of Certain Provisions of Criminal Procedure Legislation." This Law, Art. 481 of the Criminal Procedure Code of Ukraine was supplemented by part 2, according to which the Prosecutor General (executive of the duties of the Prosecutor General), his deputy may instruct other prosecutors to notify the judge in writing of suspicion, in accordance with the procedure provided for in parts 1 and 2 of Art. 278 of the CCP of Ukraine.
Highlighting the issue of assessing the admissibility of evidence in the context of compliance with the rules of investigation, as well as the definition of a prosecutor and an investigator in a specific criminal proceeding, Mykola Mazur cited as an example the decisions of the Supreme Court that relate to these issues:
- in the resolution of February 22, 2021, in case No. 754/7061/15, the OP of the CCS of the Supreme Court came to the conclusion that the decision on the appointment (determination) of the prosecutor who will exercise the powers of the prosecutor in a specific criminal proceeding and, if necessary, the group of prosecutors who will exercise the powers prosecutors in a specific criminal proceeding, must necessarily be adopted in the form of a resolution, which must be contained in the materials of the pre-trial investigation to confirm the fact of the existence of powers. Such a resolution must meet the requirements for a procedural decision in the form of a resolution provided by the Criminal Procedure Code of Ukraine, in particular, be signed by the official who adopted it. The absence of the specified resolution in the materials of the pre-trial investigation or its non-signing by the head of the relevant prosecutor's office determines the inadmissibility of the evidence collected during the pre-trial investigation, as such, collected under the supervision and procedural guidance of the prosecutor (prosecutors), who did not have the legal authority to do so;
- in the resolution of May 24, 2021, in case No. 640/5023/19, the OP of the CCS of the Supreme Court made a conclusion regarding the exercise by the Prosecutor General, the head of the regional prosecutor's office, their first deputies and deputies of the powers provided for in Part 5 of Art. 36 of the Criminal Procedure Code of Ukraine, and about the consequences of its non-compliance. In particular, the OP of the CCS of the Supreme Court emphasized that a mandatory prerequisite for the exercise of the relevant powers by these persons is the assessment of the pre-trial investigation by the pre-trial investigation body established by Art. 216 of the Criminal Procedure Code of Ukraine, as ineffective and the reflection of such an assessment in the resolution with the appropriate motivation;
- in the resolution of October 4, 2021, in case No. 724/86/20, the OP of the KKS of the Supreme Court indicated that the decision on the appointment (definition) of the group of investigators who will carry out the pre-trial investigation, the definition of the senior investigator group, who will manage the actions of other investigators, must be taken in a form that must meet the requirements for a procedural decision in the form of a resolution determined by the criminal procedural law. The absence of such a procedural decision in the materials of the criminal proceedings determines the inadmissibility of the evidence collected during the pre-trial investigation as collected by an unauthorized person;
- in the resolution of February 14, 2022, in case No. 477/426/17, the OP of the Supreme Court of Justice concluded that in the resolution of the head of the pre-trial investigation body on the determination of an investigator or a group of investigators, the senior group of investigators who carried out a pre-trial investigation may be provided by the prosecutor and announced during the trial, if during the examination of the evidence, the participants of the proceedings have doubts about their authenticity, given the fact that this evidence was collected by unauthorized persons. If this issue was not raised in the court of first instance, but arose during the appeal or cassation proceedings, such procedural documents may be provided to the court of appeal or cassation within the scope of the review of the arguments presented in the appeal or cassation complaints.
"A slightly different approach to solving the issue of evaluating the admissibility of evidence was applied by the Supreme Court of Justice in one of the recent decisions," Mykola Mazur said.
Thus, in the resolution of August 31, 2022 (case No. 756/10060/17), the Supreme Court concluded that in the case of appointing an expert to an investigator who is not a member of the investigative group determined in the criminal proceedings, the court, deciding on the admissibility of the conclusion data expert as evidence, must check within the arguments of the parties whether the method of appointing the expert led to the violation of certain human rights and freedoms provided for by the Convention and/or the Constitution of Ukraine. If the evidence is declared inadmissible, the court must justify its conclusions about a significant violation of the requirements of the criminal procedural law, noting exactly which and whose rights and freedoms were violated and how this was expressed. Evaluating evidence for admissibility in accordance with the criteria established by the criminal procedural law, the court proceeds from the circumstances of a specific case and must also motivate its decision.
This approach was applied by the Third Judicial Chamber of the Supreme Court of Justice of the Supreme Court in criminal proceedings in which the issue of the admissibility of evidence obtained by law enforcement agencies in violation of the time limit provided for in Part 7 of Article 214 of the Criminal Procedure Code of Ukraine (decision dated November 21, 2022 in case No. 991/492/19). The Third Court Chamber made the following conclusion: "Deciding on the admissibility of evidence obtained as a result of procedural actions and procedural decisions that were made, taken by the prosecutor, who is the procedural manager, in violation of the deadline for the transfer of materials to the body of pre-trial investigation, defined in Part 7 Art. 214 of the Criminal Procedure Code of Ukraine, the court must take into account the duration of such a violation, the scope and nature of the actions taken and the decisions made. Non-observance of the term specified in Part 7 of Art. 214 of the Criminal Procedure Code of Ukraine, is not an unconditional basis for recognizing evidence obtained on the basis of such procedural actions and decisions of the prosecutor as inadmissible."
At the end, Mykola Mazur answered the questions of the participants of the event.
The online workshop "Corruption Offenses: Practice of the ECtHR, the Supreme Court and Forensic Examinations" was organized by the legal journal "Law of Ukraine" and the legal portal "Ratio Decidendi".