Obstructing the execution of a court decision (Article 382 of the Criminal Code) consists in the accused committing actions that significantly complicate or make impossible the execution of a court decision, committed with the aim of preventing its execution. Establishing mandatory or prohibitive requirements addressed to a certain person in a court decision is not a prerequisite for incurring criminal liability for obstructing the implementation of such decisions. This was emphasized by the Supreme Court by the panel of judges of the Second Judicial Chamber of the Criminal Court of Cassation when considering case No. 753/9914/18 .
Yes, in accordance with Art. 370 of the Code of Criminal Procedure, which defines the requirements for the legality, reasonableness and justification of a court decision, it is considered that a decision made by a competent court in accordance with the norms of substantive law in compliance with the requirements for criminal proceedings provided for by the Code of Criminal Procedure is legal; justified is the decision made by the court on the basis of objectively ascertained circumstances, which are confirmed by the evidence examined during the trial and assessed by the court in accordance with Art. 94 of the CCP; a reasoned decision is a decision in which proper and sufficient reasons and grounds for its adoption are given.
As can be seen from the content of the verdict of the court of first instance, PERSON_1 was found guilty of committing a criminal offense provided for in Part 3 of Article 382 of the Criminal Code, namely in the act of obstructing the execution of a court decision, which caused significant damage to public interests protected by law. Thus, PERSON_1, knowing for sure about the existence of the decision of the Darnytsky District Court of Kyiv dated 23.03.2015 in a civil case, on 17.03.2017 turned to a notary and gifted non-residential premises to her daughter, thereby alienating and replacing the owner of the non-residential premises specified in the judgment during the enforcement of a court decision, preventing the execution of the specified decision of the court of first instance.
The Court of Appeals, having reviewed the criminal proceedings based on the appeals of the prosecutor, the accused PERSON_1 and her defense counsel PERSON_5, annulled the verdict of the Darnytskyi District Court of Kyiv dated February 17, 2020 regarding PERSON_1, and the criminal proceedings on her accusation under part 3 of Art. 382 of the Criminal Code closed on the basis of Clause 1 Part 1 of Art. 284 of the Criminal Procedure Code in connection with establishing the absence of a criminal offense.
As can be seen from the content of the decision, the appellate court justified its decision on the need to cancel the verdict of the court of first instance against PERSON_1 and close the proceedings by the fact that the mandatory condition for the onset of criminal liability for obstructing the execution of the court decision is the establishment of mandatory and prohibitive requirements in this decision , addressed to a specific person. Since, according to the appellate court, the decision of the Darnytsky District Court of Kyiv dated 23.03.2015 did not contain requirements for PERSON_1 of either a mandatory or a prohibitive nature, therefore, regardless of the fact that the event of concluding contracts for the donation of non-residential premises PERSON_1 had place, however, it cannot be recognized as a criminal offense, and therefore there are no grounds for bringing PERSON_1 to criminal responsibility.
However, the panel of judges considers such a conclusion of the appellate court unfounded and unacceptable, taking into account the above.
The objective side of the crime provided for in Part 3 of Art. 382 of the Criminal Code, consists of one of the actions specified alternatively in the disposition, such as: non-execution (avoidance of execution) of a sentence, decision, resolution, court resolution that has entered into force or obstructing their execution. According to this rule of substantive law, the composition of the crime is formal, because its objective side is exhausted by the commission of one of the acts specified in the law – action (obstruction) or inaction (non-performance). And it is from this moment that the crime is considered finished.
A review of the proceedings found that PERSON_1 was accused of committing a criminal offense provided for in Part 3 of Art. 382 of the Criminal Code, in particular, in the fact that by her deliberate actions regarding the alienation of real estate, she obstructed the execution of the decision of the Darnytsky District Court of Kyiv dated March 23, 2015, and not its non-execution.
Thus, it follows from the systematic analysis of the criminal law that obstructing the execution of a court decision is an active action that significantly complicates or makes impossible the execution of a court decision, carried out with the aim of preventing the execution of a court decision.
In addition, the establishment in a court decision of requirements of a binding or prohibitive nature, addressed to a certain person, is not a mandatory condition for the onset of criminal liability for obstructing the implementation of such decisions.
As can be seen from the content of the resolution, the appellate court, having irrelevantly applied the practice of the Supreme Court, referred to the rulings of the court of cassation, which contain legal conclusions on the regulation of other legal relations, regarding the non-execution of court decisions, rather than preventing their execution.
Therefore, the conclusions of the court of appeal are considered by the panel of judges of the court of cassation to be unfounded and to contradict the provisions of the Law of Ukraine on criminal liability, according to which violation of the requirements of a mandatory or prohibitive nature established in the court decision, addressed to a certain person, is a mandatory condition for the onset criminal liability for failure to comply with such a decision. As for the alternative, specified in the disposition of the crime, provided for in Art. 382 of the Criminal Code, the act of obstructing the execution of a court decision, then the establishment of such mandatory or prohibitive requirements in the court decision is not an optional condition for incurring criminal liability under this article of the Criminal Code.
Thus, after analyzing the above, the panel of judges of the court of cassation comes to the conclusion that the appellate court during the appellate review of the criminal proceedings against PERSON_1 incorrectly applied the law of Ukraine on criminal responsibility, namely did not apply the applicable law – Art. 382 of the Criminal Code, which led to significant violations of the criminal procedural law and unjustified closure of criminal proceedings against PERSON_1.
Under such circumstances, the decision of the appellate court regarding PERSON_1 on the basis of para. 1, 2 h. 1 st. 438 of the Criminal Procedure Code is subject to cancellation with the appointment of a new trial in the court of appeal, and the cassation appeal of the prosecutor is upheld.
During a new appellate review, the court must check all the arguments presented in the appeals, give them and the conclusions of the court of first instance a proper assessment, and, taking into account all the circumstances of the criminal proceedings, which are of significant importance, make a legal, justified and reasoned decision, which will comply with the provisions of the articles 370, 419 of the Criminal Procedure Code.