The Criminal Court of Cassation as part of the Supreme Court overturned the decision of the Court of Appeal in the case of seizure of property, during which the court allowed the defense counsel of one of the defendants to participate in the hearing by telephone.
According to the verdict of the local court, three accused of taking possession of property were sentenced to nine years of imprisonment with confiscation of their property. The decision was appealed in the appellate court, which upheld the verdict. Subsequently, this decision was appealed to the Criminal Court of Cassation as part of the Supreme Court. The panel of judges of the CCS of the Supreme Court issued a decision by which the decision of the appellate court was canceled and a new trial was ordered in the appellate court, justifying it by the fact that the appellate court committed procedural violations.
In particular, the appellate court decided to consider the proceedings with the participation of the defense counsel in telephone mode, since he could not join by means of video communication. However, the Criminal Procedure Code of Ukraine does not provide for the holding of a court session by phone call, because in such a case the court cannot identify the person and clarify his rights. At the same time, consideration of proceedings without a defense attorney, whose participation is mandatory, violates the accused's right to defense.
In addition, the appellate court did not make a decision regarding the participation of the defense counsel in the video conference mode, as required by the Criminal Procedure Code of Ukraine. At the same time, in the decision to leave the sentence unchanged, the appellate court noted that the defender participated in the video conference mode.
The Criminal Court of Cassation reversed the decision of the Court of Appeal and sent the case back for a new trial.
Resolution of the panel of judges of the First Judicial Chamber of the Supreme Court of Justice of the Supreme Court dated June 13, 2023 in case No. 225/127/17 – https://reyestr.court.gov.ua/Review/111614175 .
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