Disagreement of the prosecutor with the conclusions of the court of first instance regarding the proposed accusation is not a reason for a re-examination of the evidence in the appellate court. This conclusion was reached by the Supreme Court by the panel of judges of the Second Judicial Chamber of the Criminal Court of Cassation, after considering in an open court session the criminal proceedings based on the cassation appeal of the prosecutor, who participated in the consideration of the criminal proceedings in the courts of the first and appellate instances, on the decision of the Volyn Court of Appeals in case no. 154/2975/17 .
Should the appellate court re-examine the evidence due to the prosecutor’s disagreement with the conclusions of the court of first instance: the Supreme Court’s position
The circumstances of the case
By the verdict of the Volodymyr-Volyn city court of the Volyn region dated July 8, 2019, the accused was found not guilty of the criminal offense provided for in part 2 of Article 367 of the Criminal Code (official negligence), and was acquitted due to lack of proof of his guilt in committing this crime.
The man was accused of the fact that he, holding the position of senior state inspector of the customs clearance department of the Volodymyr-Volynskyi customs post of the Volyn Customs Service, while at his workplace in the premises of the "customs clearance inspector" module, as a result of improper performance of his official duties due to dishonesty attitude towards them, carried out customs control and customs clearance of the person's vehicle, as a result of which the latter was exempted from paying customs payments for undeclared goods, which he moved across the border of Ukraine in the amount of 26 bales, gross weight – 1,734 kg, which caused serious consequences for the state interests in the form of underpayment of customs payments, which is two hundred and fifty times or more than the tax-free minimum income of citizens, namely in the amount of UAH 320,687.12.
By the decision of the Volyn Court of Appeals dated October 31, 2019, the verdict of the court of first instance was left unchanged.
In the cassation appeal, the prosecutor asked to cancel the decision of the appeals court and appoint a new trial in the court of appeals. Considered that the appellate court, in violation of the principle of adversariality of the parties, unjustifiably refused the prosecutor the request for a re-examination of the evidence, thus limiting the right of the prosecution to defend its legal position and submit evidence to the court in order to establish circumstances that are essential for the correct resolution of the case . Also, the prosecutor believes that the decision of the appeals court does not meet the requirements of articles 370, 419 of the Criminal Procedure Code, as it does not contain substantiated answers to the arguments of the prosecutor's appeal and the reasons for which the appeal was dismissed.
The Supreme Court left the decision of the Court of Appeal unchanged. The panel of judges did not agree with the prosecutor's arguments about the appellate court's violation of the requirements of Part 3 of Art. 404 of the CCP. Thus, the appellate court did not establish, and the prosecutor's request for the examination of the evidence did not contain justified reasons for the need to re-examine the circumstances established during the criminal proceedings. In itself, the fact that the prosecutor disagrees with the conclusions of the court of first instance regarding the proposed indictment is not a reason for re-examining the evidence in the appellate court. In addition, the appellate court did not carry out its own assessment of the evidence, it agreed with the assessment given by the court of first instance, and therefore the court had no grounds for re-examination of the circumstances established during the criminal proceedings. Under such circumstances, the appellate court does not see a violation of the principle of immediacy of the examination of evidence. Re-examination of the circumstances is a right, not an obligation of the court. Refusal to grant a request for a re-examination of the evidence does not indicate a violation of the criminal procedural law and the incompleteness of the examination of the evidence, but the lack of legal grounds and reasoned arguments for such a necessity.