On October 19, 2021, the Supreme Court by the panel of judges of the First Judicial Chamber of the Criminal Court of Cassation in case No. 552/2540/20 satisfied the cassation appeals of the prosecutor and the victim against the decision of the court of appeals, which closed the criminal proceedings on domestic violence.
By the verdict of the local court, the defendant was found guilty of committing a criminal offense provided for in Art. 126-1 of the Criminal Code.
The decision of the appellate court canceled the verdict of the local court, and the criminal proceedings based on Clause 2, Part 1, Article 284 of the Criminal Procedure Code was closed in connection with the absence in his act of a criminal offense provided for by Art. 126-1 of the Criminal Code.
In the cassation appeals, the prosecutor and the victim claimed that the court of appeals did not consider the evidence to confirm the fact that the victim suffered minor injuries that caused a short-term health disorder. Under such circumstances, the appellate court had to reclassify the offender's actions under Part 2 of Article 125 of the Criminal Code, which provides for a less severe punishment.
The Supreme Court indicated that the appellate court established the absence of such a mandatory feature of the objective side of the criminal offense as the systematic perpetration of physical, psychological or economic violence against spouses.
The courts established that the accused struck his wife at least 12-14 times with his right fist, in the area of the head, namely the chin, mammary glands and left forearm, as a result of which he caused her physical and psychological suffering, which was expressed in causing the victim bodily injuries in the form of hematomas of the left forearm and numerous bruises of the head, torso, and limbs, which, according to the expert's opinion, belong to light physical injuries that caused a short-term health disorder.
Closing the criminal proceedings against the person involved in connection with the absence in his act of the composition of the criminal offense provided for in Art. 126-1 of the Criminal Code, the appellate court did not pay attention to the fact, confirmed by the materials of the criminal proceedings, that the victim suffered minor bodily injuries, which by their nature and extent caused a short-term disorder in her health.
The Supreme Court noted that the limits of the court's authority to reclassify a crime are outlined in Part 3 of Art. 337 of the Criminal Procedure Code, according to which a change in qualification is allowed only in the direction of improving the situation of the accused, in particular by applying the criminal law on a less serious crime.
In this criminal proceeding, the appellate court did not ensure proper protection of the victim's rights, did not check whether the defendant's actions contained signs of another criminal offense, in particular, Part 2 of Art. 125 CC.
Composition of the criminal offense provided for in Part 2 of Article 125 of the Criminal Code is less severe than that provided for by Art. 126-1 of the Criminal Code.
Closure of criminal proceedings by the court in cases where there are grounds for reclassification of the actions of the accused by the court does not justify the legitimate expectations of the person who suffered damage and is inconsistent with the tasks of criminal justice.
The state's refusal to prosecute a person in the presence of signs of another criminally punishable act (less serious than the one for which he is accused) will contradict such principles as the rule of law, legality and discretion, which will lead to impunity for the guilty, and will put the person who has been harmed in a position of legal insecurity and create conditions for repeated victimization.
The above is consistent with the legal position of the Grand Chamber of the Supreme Court expressed in the resolution of July 3, 2019 (case No. 288/1158/16-k ).
Therefore, the Supreme Court found that the appellate court committed a significant violation of the requirements of the criminal procedural law and incorrect application of the law of Ukraine on criminal liability, and therefore canceled its decision and ordered a new trial in the appellate court.