The presence of physical injuries by itself is not indisputable evidence that they arose in the victim precisely from the deliberate actions of the convicted person. This conclusion was made by the Supreme Court in Resolution No. 200/2814/17. Supreme Court
In the name of Ukraine
Decree
November 9, 2021, Kyiv, No. 200/2814/17
The Supreme Court by the panel of judges of the first judicial chamber of the Criminal Court of Cassation consisting of:
chaired by T.V. SHEVCHENKO,
judges: ANTONYUK N.O., BUSCHENKA A.P. —
examined the cassation appeal of N.A. Lomaka's defense attorney in an open court session. in the interests of the convicted Person 1 by the decision of the Dnipro Court of Appeal dated 25.03.2021 in the criminal proceedings filed in the EDPR under No.*004715, on the charge of Person 1, Information 1, a citizen of Ukraine, a native of Baku, Azerbaijan, who lives at Address 1, in committing a criminal offense provided for in Part 1 of Article 125 of the Criminal Code.
The content of contested court decisions and the circumstances established by the courts
According to the verdict of the Babushkin District Court of Dnipropetrovsk dated November 17, 2020, Person 1 was sentenced under Part 1 of Article 125 of the Criminal Code to a fine in the amount of 50 non-taxable minimum incomes of citizens, i.e. in the amount of UAH 850.
In accordance with Part 5 of Article 74 of the Criminal Code, it was decided to release Person 1 from the imposed punishment in connection with the expiration of the statute of limitations provided for in Paragraph 1 of Part 1 of Article 49 of the Criminal Code.
The civil claim of the injured Person 2 was partially satisfied. It was decided to collect UAH 5,000 from Person 1 in favor of the latter. at the expense of compensation for moral damage, the other part of the claim was rejected.
The civil claim of Person 2 to recover moral damages from Person 3 and to recover from Person 1 the costs of paying court fees when filing a civil claim for recovery of moral damages was rejected.
According to the verdict, Person 1 was found guilty of committing a criminal offense under the following circumstances. 26.11.2016 around 20:00, in the premises of the Bags etc store, located on the first floor of the shopping center "Dafi" on Blvd. Zoryanom, 1-А in the city of Dnipro, between Person 2 and previously unknown Person 1, a verbal conflict arose, during which, on the basis of hostile relations that arose suddenly, with the intention of intentionally causing bodily harm, Person 1 grabbed Person 2 with both hands by the throat and hit her head 3 times against the corner of the glass cabinet, causing minor injuries to the victim, which have insignificant short-term consequences.
The Dnipro Court of Appeal, by its decision dated March 25, 2021, left the verdict of the court of first instance regarding Person 1 unchanged.
Requirements of the cassation appeal and generalized arguments of the person who filed it
In the cassation appeal, Lomak's lawyer N.A. asks to annul the decision of the appeals court regarding Person 1 due to significant violations of the requirements of the criminal procedural law and incorrect application of the law on criminal liability and to appoint a new trial in the court of appeals. Considers that the appellate court did not comply with the standard of "proof beyond a reasonable doubt" and did not provide a reasoned justification why it rejected the arguments of the appellate complaint about the lack of proof of the guilt of Person 1 in the commission of a criminal offense provided for in Part 1 of Article 125 of the Criminal Code, which provides grounds for cancellation court decision. In his opinion, the evidence that the court used as the basis of the guilty verdict does not confirm the guilt of Person 1. He believes that the recordings from the video surveillance cameras of the Bags etc store refute the mechanism of inflicting physical injuries on the victim Person 2, specified in the indictment. Claims that the protocol of the investigative experiment with the participation of the victim Person 2 dated 05.12.2016 and the opinion of the expert dated 07.12.2016 No. 4493e are inadmissible evidence due to significant violations of the requirements of the criminal procedural law. According to the defense counsel, the decision of the appellate court does not comply with the provisions of Articles 370, 419 of the Criminal Procedure Code <…>.
Motives of the Court
As can be seen from the materials of the criminal proceedings, Lomak's lawyer N.A. appealed the verdict of the court of first instance against Person 1 in the appeal procedure, while in the appeal he gave detailed arguments to justify his opinion regarding its illegality.
The appellate court, dismissing the defender's appeal, actually did not analyze the arguments presented in it.
The key piece of evidence, which is the basis of the indictment, is a video surveillance recording of the Bags etc store dated November 26, 2016, which records the course of events that led to the conviction of Person 1.
Checking the evidence of the defense counsel that the recording from the surveillance camera in the store completely refutes the court's conclusion regarding the guilt of Person 1, including regarding the mechanism of inflicting bodily injuries on her, specified by the prosecution in the indictment and in the court's verdict, the appellate court indicated that at the request of the parties, the evidence was re-examined, in particular, the video recording of the criminal offense was carefully reviewed. From the reviewed video recording, the appellate court concluded that the event of the criminal offense committed by Person 1 and the mechanism of infliction of bodily injuries were established and stated correctly in the verdict.
On the other hand, after reviewing the video recording, the panel of judges of the Supreme Court came to the conclusion that this evidence of the defense attorney is correct, because the events shown on this media do not correspond to the mechanism of inflicting physical injuries on the victims established by the courts of the first and appellate instances, namely because Person 1 in during the conflict with Person 2, grabbed her by the throat with both hands and hit her head three times against the corner of the glass cabinet.
Also, the appellate court did not provide convincing answers to the refutation of the arguments presented in the appeal of the defense attorney that the data of the protocol of the investigative experiment dated 05.12.2020 with the accompanying photo table with the participation of the victim Person 2 cannot be used as the basis of the guilty verdict, since the investigative experiment was carried out with a significant violation of the requirements of the criminal procedural law.
In accordance with the provisions of Part 1 of Article 240 of the Criminal Procedure Code, in order to verify and clarify information that is important for establishing the circumstances of a criminal offense, an investigator, a prosecutor has the right to conduct an investigative experiment by reproducing the actions, situation, circumstances of a certain event, conducting the necessary experiments or tests.
According to the panel of judges based on the materials of the criminal proceedings, the court of first instance based its conclusion on the guilt of the convicted Person 1 based on the results of the investigative experiment with the participation of the victim Person 2 dated 05.12.2016.
This investigative action was carried out in the premises of the hospital in the department of forensic medical examination in order to clarify the mechanism of causing bodily injuries that took place on November 26, 2016. From the protocol of the investigative experiment, it can be seen that Person 2 first told about the events that took place on November 26, 2016 in the premises of the Bags etc store, and then Person 4, involved in the experiment as a victim, showed how the convict grabbed her by the neck and two or three she hit her head against the glass cabinet several times. A photo table is attached to the protocol of this investigative action.
The panel of judges believes that in this criminal proceeding, conducting an investigative experiment outside the scene of the incident contradicts the purpose of such an investigative action, defined in Part 1 of Article 240 of the Criminal Procedure Code. After all, the environment in which the investigative experiment was conducted does not correspond to the one in which the events recorded on the mentioned surveillance camera video took place. Because in this case, it was the surrounding environment — the presence of trade equipment and the distance between them — that influenced the conclusion that Person 1 was guilty of the criminal offense he was charged with.
At the same time, attention should be paid to the fact that the mere presence of bodily injuries on the victim is not indisputable evidence that they arose from the deliberate actions of the convicted person.
Under such circumstances, the appellate court should have more carefully checked the arguments of the defender regarding the violation of the Code of Criminal Procedure during the investigative experiment and provided, in accordance with the requirements of Article 94 of the Code of Criminal Procedure, an assessment of the evidence obtained as a result of this investigative action, as well as the related opinion of the forensic medical expert dated 07.12. .2016 No. 4493e.
Therefore, the appellate court did not check and properly analyze all the arguments of the appeal of the defense lawyer N.A. Lomaka, did not provide convincing reasons for refuting the arguments regarding the illegality of the decision of the court of first instance, did not indicate the grounds on which it found the arguments presented in the appeal to be unfounded , as a result of which he issued a resolution that does not meet the requirements of Article 419 of the Criminal Procedure Code.
On the basis of Part 1 of Article 438 of this Code, in connection with a significant violation of the Criminal Procedure Law, the decision of the appellate court is subject to cancellation with the appointment of a new trial in the court of appeal, during which the court must take into account the stated, carefully check the arguments given in the appeal complaint , as well as specified in the cassation complaint, give comprehensive answers to them and make a legal and well-founded decision.
In addition, since the appeal complaint of the defense attorney referred to the need to provide evidence in the case of a different assessment due to the inconsistency of the conclusions of the court of first instance with the actual circumstances, the appeal court must discuss the issue of re-examining the evidence on the basis of the defense attorney's request in accordance with Part 3 of Art. 404 of the CCP.
Guided by Articles 433, 434, 436, 438, 441, 442 of the CPC, the Supreme
RESOLVED:
The cassation appeal of the defense attorney Lomaka N.A. satisfy
The decision of the Dnipro Court of Appeal dated March 25, 2021 regarding Person 1 shall be annulled and a new trial shall be ordered in the court of appeal.
The resolution enters into legal force from the moment of promulgation, is final and is not subject to appeal.