Possible violations in the adoption of such a decision are not classified by the criminal procedural law as unconditional grounds for its cancellation (Part 2 of Article 412 of the Criminal Procedure Code), and the significance of such violations must be assessed in each specific case. The positions of the courts of the first and appellate instances: according to the verdict of the local court, PERSON_1 was found guilty of committing the crime provided for in Part 2 of Art. 156 of the Criminal Code.
The appellate court left the verdict of the court of first instance unchanged.
In the cassation appeal, the defense attorney points out that the court of first instance violated the requirements of Art. 27 of the Criminal Procedure Code, since the trial was conducted openly, despite the fact that the trial was conducted with the participation of a minor in connection with the commission of a criminal offense against sexual integrity.
The position of the CCS: the decision of the courts of previous instances was left unchanged.
Justification of the position of the CCS: the panel of judges of the CCS, rejecting the specified arguments in the cassation appeal of the defender, noted the following.
Taking into account the provisions of clause 1, part 1 of Art. 27 of the Code of Criminal Procedure, the court may consider the possibility of holding a trial of the case in the format of a closed proceeding on the basis of a corresponding request of the participants in the process. However, as can be seen from the log of the court session, during the appointment of the criminal proceedings before the trial, no requests were received from the participants of the criminal proceedings regarding the appointment of the criminal proceedings in a closed court session, therefore the court appointed the court session in an open mode.
At the same time, making a decision on an open or closed trial belongs to the discretionary powers of the court. Possible violations in the adoption of such a decision are not classified by the criminal procedural law among the unconditional grounds for its cancellation, provided for in Part 2 of Article 412 of the Criminal Procedure Code, and therefore the materiality of such violations in view of their impact on the legality and reasonableness of the decision as a whole must be assessed in each individual case.
Thus, the grounds for satisfying the cassation appeal have not been established.
You can read more about the text of the resolution dated November 23, 2021 in case No. 369/1044/19 (proceedings No. 51-2732км21) at the link https://reyestr.court.gov.ua/Review/101519622 .