The signing by the accused of a statement of undisputed admission of his guilt in the commission of a criminal offense, in respect of which a simplified criminal proceeding is possible, in the absence of a defense attorney, and the improper explanation to the accused by the pre-trial investigation body of the essence of the limitations during the consideration of the criminal proceedings in a simplified manner, is a significant violation of the requirements of the criminal procedural legislation .
Circumstances of the case: according to the verdict of the local court, PERSON_1 was found guilty of committing a criminal offense provided for in Part 1 of Article 185 of the Criminal Code. The case against the accused was considered by the court in the order of simplified proceedings.
The Court of Appeal upheld this verdict.
In the cassation complaint, the prosecutor points out that the appellate court, having granted the petition of the convicted person to question the lawyer of PERSON_3, limited himself to examining his statement, which was received by e-mail, without checking whether this statement was actually sent to PERSON_3.
In the cassation complaint, the defense attorney points out that the courts ignored the arguments of the convicted person, that the plea of guilty was written by her without the participation of the defense attorney PERSON_3, who then signed this statement without the participation of the convicted person. It is indicated that the appellate court did not pay due attention to the statement of PERSON_3's lawyer, according to which the latter confirms the fact that he was not present when PERSON_1 signed the statement of her admission of guilt and consent to consider criminal proceedings in a simplified manner.
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 Supreme Court: the basis for consideration of an indictment on the commission of a criminal misdemeanor in summary proceedings is the establishment by the prosecutor during the pre-trial investigation that the suspect admitted his guilt without question, does not dispute the circumstances established by the pre-trial investigation and agrees to the consideration of the indictment in his absence, and the victim, the representative of the legal entity in respect of which the proceedings are being conducted do not object to such consideration. In such a case, the prosecutor has the right to send an indictment to the court, in which he indicates a request for its consideration in a simplified procedure without conducting a trial in a court session.
Since simplified criminal proceedings for criminal misdemeanors are a limitation of the fundamental human right to a fair trial (in particular, the right to defense, the right to participate in the trial, the right to appeal the court decision), the prosecution must properly fulfill the requirements of Art. 302 of the Code of Civil Procedure, while the courts are responsible for making sure that the prosecution has fulfilled the specified requirements, as well as properly verifying the complaints of the defense (if any) about the violation by the prosecutor, the investigator of the provisions of the specified article.
As can be seen from the proceedings, the issue of the absence of a defense attorney at the time PERSON_1 signed the consent was raised by the defense before the appellate court, while the defense attorney pointed to an e-mail sent to the appeal court from PERSON_3's lawyer in support of these arguments, which stated that the lawyer was not present at the time of signing the statement on PERSON_1's undisputed admission of his guilt.
Refusing to grant the defendant's appeal, the appellate court did not check the merits of the arguments of the defendant's appeal that a lawyer was absent during the writing of the plea of guilty, and the pre-trial investigation body did not adequately explain to PERSON_1 the limitations provided for by the criminal procedure by law in the case of summary criminal proceedings. Instead, the appellate court limited itself to a short formal reference to the fact that in the proceedings there is a statement signed by PERSON_1 of the accused on consent to the consideration of the indictment in a simplified manner, without clarifying the circumstances under which this statement was made.
Moreover, in the appellate court, the prosecutor filed a motion to summon PERSON_3 to the court session of the appellate instance court to testify on the above-mentioned reason, which was granted by the appellate court, as evidenced by the technical record of the court session. However, the specified lawyer was not actually summoned to the court of appeal, which is evidenced by the absence of any data in the proceedings materials that the specified lawyer was sent relevant messages, and, as a result, explanations regarding his presence or absence during the writing of PERSON_1's statement about he did not provide an undisputed admission of his guilt and an explanation of the consequences of making such a statement to the court of appeal.
Also, the appellate court did not properly assess the application submitted in electronic form, which was sent in the form of an electronic appeal on behalf of PERSON_3. In particular, the appellate court did not pay attention to the fact that the specified statement does not contain the corresponding electronic signature of the lawyer, in connection with which it is impossible to draw an indisputable conclusion that it was sent to the court by PERSON_3.
Based on the above, the appellate court's conclusions about the groundlessness of the arguments of PERSON_1's appeal and the legality of the verdict of the court of first instance are premature, and therefore the decision of the appellate court is subject to cancellation with the appointment of a new trial in the appellate court.
You can read more about the text of the resolution of the Supreme Court dated 06.10.2021 in case No. 185/7793/20 (proceedings No. 51-1860km21) at the link https://reyestr.court.gov.ua/Review/100292419 .