If the victim did not submit a statement of a criminal offense to the law enforcement authorities as a separate procedural document, but before or during the pre-trial investigation and/or court proceedings he clearly expressed his position on bringing the accused to criminal responsibility, then the corresponding position recorded in the procedural documents is grounds for criminal prosecution of a person for a criminal offense of private prosecution.
The Criminal Procedure Code does not impose on the victim the obligation to determine the correctness of the qualification, which is the responsibility of the pre-trial investigation body and the prosecution
The investigator, having established circumstances that indicated the commission of actions against the victim, which are subject to qualification under Part 2 of Art. 125 of the Criminal Code, and not according to part 1 of this article, under which criminal proceedings were initiated, reasonably changed the qualification in this criminal proceeding and did not accept another statement from the victim regarding the same circumstances of the criminal offense, according to which the pre-trial investigation in this criminal proceeding was carried out .
Circumstances of the case: PERSON_1 was found guilty and sentenced for the fact that on 19.08.2019, during a quarrel with PERSON_2 on the basis of suddenly arising personal hostility, he deliberately struck one blow with his hand in the face of the victim, thereby causing her a slight physical injury, which caused a short-term health disorder. I.
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 a criminal offense provided for in Part 2 of Art. 125 CC.
The Court of Appeals left this decision unchanged.
In the cassation complaint, the convicted PERSON_1 claims that the courts unjustifiably did not close the criminal proceedings in the form of a private prosecution due to the lack of a statement by the victim about a criminal offense, which is a violation of the requirements of Art. 477 of the CCP. Thus, PERSON_1 believes that the presence in the case file of two statements of the victim with different dates of the commission of the criminal offense makes it impossible to objectively consider the criminal proceedings in the form of a private indictment. According to him, the materials of the criminal proceedings do not contain any statement of PERSON_2 from 22.08.2019 about the committed criminal offense. In addition, as PERSON_1 notes, the court did not consider the victim's petition dated 06.09.2019 to reclassify the composition of the crime and did not provide it with a legal analysis. He points out that the resolution on the requalification of his actions dated August 29, 2019 is not supported by any statement from the victim. According to the convicted person, the decision to submit a statement of PERSON_2 to the EDPR under Part 1 of Art. 125 of the Criminal Code is illegal, since the excerpts from the registers do not contain any reference to the victim's statement from 08/19/2019 about the infliction of physical injuries on her.
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 considers the arguments in the cassation appeal of the convict unfounded.
Thus, the appellate court indicated that, according to the victim's explanations provided during the appellate review, she contacted the police authorities on the day she was injured, namely 08/19/2019. Later, she received the conclusion of the forensic medical examination dated 22.08.2019, and on the same day she was invited to the district police department, where a statement about the commission of a criminal offense and an explanation of this fact were accepted from her. The specified information was entered into the EDPR and criminal proceedings were initiated. As can be seen from the extract from ЕРДР, the date 22.08.2019 is indicated in the section "Brief summary of circumstances that may indicate the commission of a criminal offense".
Taking into account these explanations of the victim, the appellate court came to the correct conclusion that the date of the commission of the criminal offense (22.08.2019) indicated in the extract from the EDPR should be considered a technical error of the registrar, since it does not correspond to all the other evidence available in the criminal proceedings, which was examined under time of trial.
The Supreme Court agrees with these conclusions of the appellate court.
In addition, in this part, the court of cassation draws attention to the fact that in the protocol of acceptance of the application for the commission of a criminal offense dated 22.08.2019, the victim PERSON_2 clearly indicated that she was physically injured on 19.08.2019. None of the parties to the criminal proceedings denied these circumstances.
At the same time, as can be seen from the documents attached to the amended appeal of the convicted person, neither the report of the police officer dated August 19, 2019, which recorded the victim's telephone appeal to the law enforcement authorities regarding the events that are the subject of this criminal proceeding, nor the victim's statement dated August 19, 2019, submitted to the sector employee the response of the patrol police, with a request to take measures against the unknown man who hit her, in no way indicate that the criminal proceedings were not initiated at the request of PERSON_2. On the contrary, these documents confirm the fact that the bodily injuries of the victims were inflicted precisely on 19.08.2019, and the criminal proceedings were initiated after the adoption of the protocol dated 22.08.2019 from the last statement about the commission of a criminal offense.
The victim's statement submitted to law enforcement agencies and/or the court is an expression of his attitude to the event of the crime, the person who committed it, and the chosen method of response. The corresponding manifestation of will is evidence that the person who has been harmed turns to the state for the purpose of protecting his violated rights and legitimate interests by criminal prosecution of the culprit, not considering other ways of achieving this goal to be appropriate and sufficient.
The Criminal Procedure Law does not regulate a specific method of the victim's application with a statement that determines the conditions defined in Part 1 of Art. 477 of the CCP legal consequences. At the same time, the protection of human rights and freedoms as an embodiment of the principle of the rule of law requires giving priority to the internal content of legally significant actions over the external form of their expression. Therefore, even if the victim did not file a statement about the crime as a separate procedural document with the law enforcement authorities, but before or during the pre-trial investigation and/or court proceedings, he clearly expressed his position on bringing the accused to criminal responsibility, the corresponding position recorded in the procedural documents is grounds for criminal prosecution of a person for a criminal offense of private prosecution.
This is consistent with the legal position of the Ministry of Internal Affairs dated July 3, 2019 (case No. 288/1158/16-k, proceedings No. 13-28ks19).
The convict's arguments regarding the fact that the resolution on the requalification of his actions from 08.29.2019 is not supported by any statement of the victim are also not acceptable, taking into account the following.
As can be seen from the materials of the criminal proceedings, on August 23, 2019, information was entered into the EDDR on the legal qualification of actions under Part 1 of Art. 125 CC. On August 28, 2019, the investigator, having established that the criminal offense committed by PERSON_1, falls under the characteristics of the act provided for in Part 2 of Article 125 of the Criminal Code, issued a resolution on the reclassification of the composition of the crime in criminal proceedings from Part 1 to Part 2 of Art. 125 CC. On the basis of the above, on August 29, 2019, information on the legal qualification of actions under Part 2 of Art. 125 CC.
As it follows from the analysis of the provisions of Chapter 36 of the Criminal Procedure Code, the defined procedural procedure for carrying out criminal proceedings in the form of a private indictment is by its legal nature a private-public type of criminal proceedings and should be considered as a differentiation of the form of such proceedings within the limits of its general form regulated by the Criminal Procedure Code. The law does not impose on the victim the obligation to establish the circumstances of the criminal offense and its qualifications. This is the exclusive competence of pre-trial investigation, public prosecution and court bodies.
The above is consistent with the decision given in the resolution of the CCS dated 05.12.2019 (case No. 203/6405/14-k, proceedings No. 51-3585km19).
Thus, the investigator, having established the circumstances that indicated the commission of actions against the victim, which are subject to qualification under part 2 of Art. 125 of the Criminal Code, and not under Part 1 of Art. 125 of this article, under which criminal proceedings were initiated, reasonably changed the qualification in this criminal proceeding. For such a qualification, the pre-trial investigation body did not need to accept another statement from the victim regarding the same circumstances of the criminal offense under which the pre-trial investigation was carried out in this criminal proceeding, since the criminal procedural law does not impose on the victim the obligation to determine the correctness of the qualification of illegal actions. committed against her, which is the duty of the pre-trial investigation body and the prosecution.
You can read more about the text of the resolution dated November 3, 2021 in case #621/2519/19 (proceedings #51-3126км21) at https://reyestr.court.gov.ua/Review/100885128 .