Circumstances of the case: INDIVIDUAL_1 was accused of maliciously evading his duties to care for his minor daughter during 2012-2013. In particular, PERSON_1 repeatedly initiated family conflicts, during which he insulted and beat his wife in the presence of his daughter, forced his daughter to be present during family conflicts with his wife; insulted and humiliated his daughter, threatened her with physical violence for the fact that she does not study well and wants to live exclusively with her mother, not with him. As a result, after such conflicts, the daughter developed a state of shock and thoughts of suicide. She either ran away from home alone or together with her mother and hid from PERSON_1. As a result, the daughter began to be treated with medication, and also underwent treatment courses with a psychologist and a psychiatrist.
Criminal liability for the malicious failure to fulfill the duties of caring for a child or a person for whom guardianship or guardianship has been established occurs in the event of an intentional act both in the form of action and in the form of inactio
According to the expert's opinion and the inpatient outpatient psychiatric examination report, which are in the criminal proceedings, PERSON_1's daughter suffers from a mixed anxiety-depressive disorder and a specific isolated phobia (fear of the father). These disorders are not congenital and are directly causally related to the actions of the father. This psychotrauma belongs to the medium severity of physical injuries as a sign of health disorder, that is, it caused serious consequences to the minor victim.
The positions of the courts of the first and appellate instances: according to the verdict of the local court, PERSON_1 was found guilty and sentenced under Art. 166 of the Criminal Code.
According to the decision of the appellate court, the verdict of the local court against PERSON_1 was canceled, and the criminal proceedings under Art. 166 of the Criminal Code was closed on the basis of Clause 2, Part 1, Art. 284 of the Criminal Procedure Code in connection with the absence of the composition of a criminal offense.
Motivating such a decision, the appellate court, in particular, indicated that the objective side of the criminal offense provided for in Art. 166 of the Criminal Code, manifests itself in the form of inaction, namely malicious failure by parents, guardians or custodians to fulfill the duties established by law to care for a child or a person in respect of whom guardianship or guardianship has been established, while PERSON_1 was accused of active actions according to the indictment, in the form of conflicts, family quarrels that harmed the mental health of the victim PERSON_2. According to the appellate court, the actions of PERSON_1 constitute an administrative offense provided for in Art. 173-2 of the Code of Administrative Offenses. In addition, the appellate court noted in the decision that the actions of PERSON_1 lack the subjective side of the criminal offense provided for in Art. 166 of the Criminal Code, which is characterized by intent, which is indicated by the malicious nature of the act. The mental attitude of the guilty person to the consequences is careless.
According to the panel of judges of the appellate court, there is no data in the materials of the criminal proceedings that would indicate that PERSON_1 ignored his parental duties to care for the daughter of PERSON_2, since PERSON_1 properly fulfilled the duties assigned to him to care for his minor daughter, ensuring the latter with proper conditions for living, studying, financial support, life, leisure, etc.
The position of the CCS: the decision of the appellate court was canceled and a new trial was ordered in the appellate court.
Justification of the position of the CCS: the panel of judges of the CCS stated that the conclusion of the appellate court regarding the absence in the actions of PERSON_1 of the criminal offense provided for in Art. 166 of the Criminal Code, is not based either on the provisions of the Law of Ukraine on criminal liability or on the actual circumstances of the proceedings.
In particular, referring to the absence in the actions of PERSON_1 of the objective side of the criminal offense provided for in Art. 166 of the Criminal Code, the appellate court indicated that it can manifest itself only in the form of inaction. However, this conclusion of the appellate court is erroneous.
Based on the disposition of Art. 166 of the Criminal Code, the responsibility of a special subject (parents, guardians or custodians) arises in the event of an intentional act, which is expressed both in the form of action (physical and psychological violence, cruel treatment, etc.) and inaction, provided there is a malicious failure to fulfill obligations responsibilities for the care of a child or a person in respect of whom guardianship or guardianship has been established, and in the event of serious consequences for the injured person.
Providing a child with only material means of subsistence is not evidence of the parents' fulfillment of their duties. At the same time, the court of first instance established that PERSON_1 did not fulfill his duties related to the mental development of the child, which was expressed in systematic psychological violence through quarrels and humiliation of his wife and daughter, which led to the occurrence of psychotrauma in the latter, which led to a long-term disorder her health.
However, the appellate court noted that such actions of PERSON_1 constitute the objective side of the administrative offense provided for in Art. 173-2 of the Code of Administrative Offenses, as he considered each of these quarrels as an independent separate offense. At the same time, the appellate court did not take into account that an administrative misdemeanor, the responsibility for which occurs under Art. 173-2 of the Criminal Procedure Code, the commission of domestic violence, which is not long-term or systematic, can be recognized.
The malicious nature of the action of the guilty person towards a child or a person for whom guardianship or guardianship has been established may be a sign of the objective side of the composition of the criminal offense provided for in Art. 166 of the Criminal Code. Circumstances that indicate the malicious nature of non-fulfilment of duties to care for a child or a person for whom guardianship or guardianship has been established may, in particular, be their duration, systematicity, multiple occurrences, and so on.
In this proceeding, the first-instance court recognized as proven that PERSON_1's actions towards her daughter were repeated, caused the child a shock and such a reaction that she locked herself in her room for a long time, hid in the utility room and in the home of the class teacher, fled to the forest, afraid to return home, she began to have thoughts of suicide, stress, in connection with which she was treated by a psychologist and a psychiatrist and with medication. That is, every quarrel led to the deterioration of his daughter's mental health, which he knew, but he continued his illegal actions, as a result of which PERSON_1 was caused a long-term health disorder.
Such actions of PERSON_1 confirm their malicious nature and may indicate that he has a direct intention to commit a criminal offense, and therefore the appellate court's conclusion that the actions of the accused do not have a subjective aspect of the crime provided for in Art. 166 of the Criminal Code, in the form of intent.
You can read more about the text of the resolution dated November 2, 2021 in case No. 450/1146/14-k (proceedings No. 51-3650км21) at https://reyestr.court.gov.ua/Review/100957076 .