The Supreme Court, by the panel of judges of the First Judicial Chamber of the Cassation Criminal Court, considered in an open court session the cassation appeal of the prosecutor, who participated in the proceedings in the court of appeal, against the decision of the Mykolaiv Court of Appeals dated June 01, 2021 in criminal proceedings No. 12018150030001046 on the charges:
PERSON_1, INFORMATION_1, a citizen of Ukraine, a native and resident of ADDRESS_1), previously convicted several times, the last time by the verdict of the Factory District Court of Mykolaiv on June 27, 2017, amended by the decision of the Court of Appeal of the Mykolaiv Region on December 13, 2017, pursuant to Part 2 of Art. . 185 of the Criminal Code of Ukraine to the penalty of imprisonment for a term of 4 years and 2 months, in the commission of a criminal offense provided for in Part 2 of Art. 185 of the Criminal Code of Ukraine (hereinafter – Criminal Code of Ukraine).
The content of the contested court decision and the circumstances established by the courts of the first and appellate instances
1. According to the verdict of the Factory District Court of Mykolaiv dated March 23, 2020, PERSON_1 was found not guilty of the charge brought under Part 2 of Art. 185 of the Criminal Code of Ukraine and was acquitted due to the lack of evidence that he had committed a criminal offense.
2. By the contested decision of the Mykolaiv Court of Appeals dated June 1, 2021, the specified verdict regarding PERSON_1 was left unchanged.
3. The body of the pre-trial investigation charged PERSON_1 with the fact that on March 18, 2018, in the evening (a more precise time was not established during the pre-trial investigation), being at the invitation of the apartment. ADDRESS_2, taking advantage of the lack of attention of the owner of the property and third parties, acting repeatedly, guided by a sudden intention, secretly stole from the specified apartment the laptop "Asus X55u" worth UAH 6,000.00 belonging to PERSON_2, two tablet PCs of the brand "Samsung" and "Impression" worth UAH 5,000.00 and UAH 2,500.00, respectively, an Alcatel brand mobile phone worth UAH 2,000.00 and other mobile means of communication for a total of UAH 18,500.00.
Requirements of the cassation appeal and generalized arguments of the person who filed it
4. In the cassation complaint, the prosecutor, referring to significant violations of the requirements of the criminal procedural law and the incorrect application of the law of Ukraine on criminal liability, requests that the decision of the appeal court regarding PERSON_1 be annulled and a new trial of the criminal proceedings be ordered in the court of appeal. In support of his demands, he notes that the appellate court, contrary to the requirements of Art. 419 of the Criminal Procedure Code of Ukraine (hereinafter – the Criminal Procedure Code of Ukraine), although he noted in his decision the content of the prosecutor's appeal, he did not properly check all the arguments presented in it, the assertion of the prosecution that there is sufficient evidence of PERSON_1's guilt in committing the criminal offense charged against him is not refuted and, having formally considered the appeal, reached an unfounded conclusion about the acquittal of the latter.
5. At the same time, according to the prosecutor, the appellate court unreasonably agreed with the conclusions of the court of first instance regarding recognition as inadmissible evidence:
- the protocols of presentation for identification by photographs dated June 13 and 25, 2018 due to the lack of information about the interview of witnesses regarding the appearance and features of the person they recognize;
- the protocol of inspection of things and objects dated June 19, 2018, mistakenly equating the inspection, during which things and documents are forcibly removed, with the voluntary surrender of such things and their subsequent identification;
- data contained in the answers of pawnshops and certificates about the market value of things, as a result of receiving them without corresponding court rulings or requests from the investigator.
6. The prosecutor also disagrees with the conclusion of the appeals court regarding the recognition as improper evidence of the report of the inspection of the scene of the incident dated March 19, 2018 at the place of residence of the victim PERSON_2 and points to the court’s disregard of her testimony regarding the circumstances of the theft and the list of stolen property, as well as the failure to provide the appropriate assessment by inconsistent testimony of PERSON_1 himself.
Positions of other participants in the court proceedings
7. Objections of the acquitted PERSON_1 were received on the cassation appeal of the prosecutor.
8. At the session of the court of cassation, prosecutor Neskorodyany A.M. supported the cassation appeal of the prosecutor who participated in the proceedings in the appellate court.
9. The other participants in the court proceedings were properly informed about the date, time and place of the cassation hearing, but they did not appear at the court session.
Motives of the Court
10. After listening to the judge-rapporteur, clarifying the opinion of the prosecutor, checking the materials of the criminal proceedings and discussing the arguments of the cassation appeal, the panel of judges came to the conclusion that the appeal is inadmissible in view of the following.
11. According to the provisions of Art. 433 of the Code of Criminal Procedure of Ukraine, the court of cassation examines the correctness of the application by the courts of the first and appellate courts of the norms of substantive and procedural law, legal assessment of the circumstances and does not have the right to examine the evidence, establish and recognize as proven the circumstances that were not established in the contested court decision, resolve the question of the authenticity of the or other evidence. The court of cassation reviews the court decisions of the courts of first instance and appeals within the scope of the cassation appeal.
12. According to Part 1 of Art. 438 of the Criminal Procedure Code of Ukraine grounds for annulment or change of court decisions when considering a case in the court of cassation are only: significant violation of the requirements of the criminal procedural law; incorrect application of the law of Ukraine on criminal responsibility; inconsistency of the prescribed punishment with the severity of the criminal offense and the person of the convicted person.
13. The court decision must be legal, justified and motivated (Article 370 of the Criminal Procedure Code of Ukraine). Legal is a decision made by a competent court in accordance with the norms of substantive law in compliance with the requirements of criminal proceedings provided for by this Code. A justified decision is a decision made by the court on the basis of objectively ascertained circumstances, which are confirmed by the evidence examined during the trial and assessed by the court in accordance with Art. 94 of this Code. A reasoned decision is a decision in which proper and sufficient reasons and grounds for its adoption are given.
14. The decision of the appellate court is the decision of the higher court regarding the legality and reasonableness of the verdict, the decision, which is reviewed in the appellate procedure, and must meet the same requirements as the verdict of the court of first instance.
15. According to Articles 2, 7, 370, 404, 419 of the Criminal Procedure Code of Ukraine, when reviewing the disputed verdict, the appellate court, observing the principles of criminal proceedings, is obliged to carefully check all the arguments presented in the appeal, to find out whether they are complete, comprehensive and the court proceedings were conducted objectively, whether the prosecution evidence was obtained in accordance with the procedure specified by the Code, or whether it was evaluated by the local court in compliance with the rules of Art. 94 of the Criminal Code of Ukraine and according to the evidence, whether the law of Ukraine on criminal liability was correctly applied. When an appeal is dismissed without satisfaction, the grounds on which it was deemed unfounded must be specified in the decision of the court of appeal. That is, this decision should analyze the arguments of the complainant and, comparing them with the factual data available in the case, give a comprehensive answer to each of them.
16. The panel of judges believes that the above-mentioned requirements of the Criminal Procedure Law were fully complied with in this criminal trial by the court of appeal.
17. Thus, not agreeing with the acquittal verdict regarding PERSON_1, the prosecutor who participated in the proceedings in the court of first instance filed an appeal against this verdict.
18. During the review of the verdict of the local court for compliance with the requirements of Articles 370, 374 of the Criminal Procedure Code of Ukraine, the appellate court found that the verdict contained the wording of the indictment under Part 2 of Art. 185 of the Criminal Code of Ukraine, presented to PERSON_1 by the pre-trial investigation body and recognized by the court as unproven, as well as the grounds for the acquittal of the accused, indicating the reasons for which the court rejected the evidence of the prosecution and came to the conclusion that there is no proper and admissible evidence to confirm the guilt of PERSON_1 in committing the criminal offense charged against him offense.
19. Agreeing with the conclusions of the local court regarding the acquittal of PERSON_1 in the accusation brought against him, the appellate court took into account the fact that he himself, being questioned in the courts of the first and appellate instances, although he did not deny the fact of his presence at the scene of the crime in the victim's apartment PERSON_2 during the incriminated period, among the other invited persons, who were about twenty, however categorically denied that he had stolen any property from this apartment, and at the same time noted that when he left the apartment, everyone present in it was searched in connection with the discovery the victim of the disappearance of things, but nothing was found on him. These statements of his are objectively consistent with the statements of the witness PERSON_3 questioned by the court of first instance, who was also in the victim's apartment at that time.
20. Regarding the arguments in the cassation appeal of the prosecutor regarding the inconsistency of the testimony of PERSON_1, who, during the trial of the case in the court of first instance, initially did not admit his guilt, then agreed with the indictment brought against him, and later, with the provision of the relevant testimony, insisted on his non-involvement in commission of the crime charged against him, the panel of judges of the court of cassation observes the following. A person accused of committing a criminal offense has the right to form his line of defense at his own discretion. The testimony of the accused is not only a source of evidence, but also a means of protecting his interests, they must be carefully checked and evaluated by the court. No piece of evidence has predetermined force for the court (Part 2 of Article 94 of the Criminal Procedure Code of Ukraine). A confession of guilt is not indisputable proof and does not release the investigator, prosecutor, court from a comprehensive, complete and impartial examination and assessment of testimony separately, and the entire evidence base as a whole. At the same time, regulated by Art. 62 of the Constitution of Ukraine and enshrined in Art. 17 of the Criminal Procedure Code of Ukraine, the principle of presumption of innocence exempts a person from the obligation to prove his innocence, all doubts regarding the proof of guilt must be interpreted in favor of the accused. If the accused refers to circumstances that testify to his innocence, then the prosecution must establish or refute such circumstances. The testimony of the accused shall be evaluated according to the same rules as all the evidence available in the materials of the criminal proceedings. In this criminal proceeding, the court of first instance, with which the appellate court also agreed, based on the results of a direct investigation and evaluation of the evidence in accordance with the requirements of Art. 94 of the Criminal Procedure Code of Ukraine from the point of view of propriety, admissibility and credibility, and their totality – from the point of view of sufficiency and interrelationship, came to the conclusion that the guilt of PERSON_1 was not proven beyond a reasonable doubt in committing the criminal offense charged against him, provided for in Part 2 of Art. 185 of the Criminal Code of Ukraine.
21. Thus, evaluating the protocols of presentation of a person for identification by photographs from June 13 and 25, 2018, the court of appeal noted that contrary to the requirements of part 1 of Art. 228 of the Criminal Procedure Code of Ukraine, the mentioned protocols do not contain signs, signs or their combination, by which the witnesses PERSON_4 and PERSON_5 recognized PERSON_1, therefore, he reasonably agreed with the decision of the local court to recognize the data contained in these protocols as inadmissible evidence. In addition, this evidence was correctly recognized by the courts of both instances as improper, since they only confirm the fact that PERSON_1 was among other persons in the victim's apartment, which PERSON_1 himself does not deny, but do not prove the fact that he committed theft of the victim's property from this apartment, and the same do not contain data on a specific list and individual characteristics of equipment, namely mobile phones, tablets and a laptop, allegedly sold by PERSON_1. PERSON_5 according to the latter.
22. Such data are also absent in the report of the inspection of the scene of the incident dated March 19, 2018 at the place of residence of the victim PERSON_2 in quarter ADDRESS_2, and in the protocol of acceptance of her statement about the committed criminal offense, which contains only a general indication of the theft of property from her apartment without specifying its generic features.
23. Critically evaluating the testimony of the victim PERSON_2 at the court session of the appellate instance that when she contacted the police on March 19, 2018, she told the investigator which equipment was stolen from her apartment, and that the theft itself could be revenge of PERSON_1 on her daughter PERSON_4 the latter's refusal of his advances, the appellate court quite rightly noted that, according to the data of the register of pre-trial investigation materials, the victim PERSON_2 was questioned by the investigator about the circumstances of the disappearance of property from her apartment on June 13, 2018, that is, from the day of the event and the interrogation by the investigator to the interrogation of the victim by the appellate court almost three years, in connection with which the victim may not remember all the circumstances of the event, which she herself noted during her interrogation, including the circumstances of her contacting the law enforcement authorities and providing the investigation with information about the property stolen from her, and her position regarding PERSON_1's theft out of revenge against her daughter was reasonably evaluated by the appellate court as being speculative and therefore cannot be taken into account.
24. At the same time, the appellate court drew attention to the ambiguity of the position of the prosecution in terms of the investigation and evaluation of the testimony of the victim PERSON_2, since the latter requested to conduct the trial in her absence, she did not appear at the court session of the court of first instance after repeated summonses, as a result of which the prosecutor considered it was possible to conduct the proceedings without her and refused to interrogate her, and after the court of first instance recognized PERSON_1 as innocent of the charges presented in the appeal complaint and in the court of appeal, he insisted on interrogating the victim.
25. Agreeing with the conclusions set out in the verdict on the recognition as inadmissible evidence of the data contained in the inspection protocol of things and documents dated June 19, 2018, that during the inspection the victim PERSON_2 and the witness PERSON_4 recognized the Bluetooth headset of the brand "Jabra" stolen on 19 in March 2018 from their apartment, the appellate court correctly noted that this material evidence, which according to the statement of PERSON_5, was purchased by him from a clearly familiar boy named PERSON_1, after it was voluntarily handed over by the witness PERSON_5 on June 15, 2018, contrary to the requirements of Part 5 of Art. . 237 of the Criminal Procedure Code of Ukraine was not immediately inspected and sealed, and during the preparation of the inspection protocol of things and documents dated June 19, 2018, the investigator actually identified things and documents without complying with the requirements of Articles 229, 231 of the Criminal Code of Ukraine. The panel of judges of the court of cassation also agrees with such arguments.
26. Contrary to what was stated in the cassation appeal of the prosecutor, the court of appeal agreed with the arguments of the appeal regarding the falsity of the conclusions of the court of first instance regarding the recognition as inadmissible evidence of the data in the reports of PT "Klymchuk and Company" Lombard Capital, LLC "Lombard "Money Here" and certificates of the FOP "PERSON_7" due to the prosecution's failure to provide documents that would testify to their voluntary provision or receipt at the appropriate request of the investigator. At the same time, the appellate court pointed out that the content of these reports and certificates shows that they were received by the pre-trial investigation body at the relevant requests of the investigator and contain indications of the numbers and dates of such requests.
27. However, at the same time, the appellate court quite rightly stated that the court of first instance reached the correct conclusion about the inadequacy of this evidence. To justify its conclusions in this part, the appellate court indicated that, according to the materials of the criminal proceedings, the witness PERSON_5 is a regular customer of pawn shops, the marking of the property pawned by him does not correspond to the marking of the property of which PERSON_1 is accused of stealing, and the time of handing over the property to the pawn shop does not correspond to the time of the commission of the crime of theft, which does not allow us to come to an unequivocal conclusion that the lists of pledged PERSON_5 property provided by pawnshops include the one stolen from the victim's apartment, since it is impossible to establish a specific list and individual characteristics of this property from the documents attached to the criminal proceedings. For the same reasons, the appellate court agreed with the recognition by the local court of the data on the cost of technical devices that were in use, which are contained in the certificates of the FOP "Person_7", as improper evidence.
28. Thus, the appellate court came to the conclusion that the prosecution, both in the court of first instance and during the appellate proceedings, did not provide proper and admissible evidence to confirm that the property in the form of 4 mobile phones, 2 tablets, a laptop and Bluetooth headsets of the respective brands, which PERSON_1 was accused of stealing, were indeed located in the apartment of the victim PERSON_2 as of March 19, 2018.
29. Having considered the prosecutor's appeal, the court of appeals properly examined the arguments regarding the groundlessness of PERSON_1's acquittal, which are similar in content to the arguments of the cassation appeal, and, agreeing with the conclusions set forth in the judgment of the court of first instance and the reasons for its decision, lawfully and reasonably decided to leave this sentence unchanged. The decision of the appellate court meets the requirements of Art. 419 of the CPC of Ukraine.
30. During the cassation proceedings, the panel of judges did not establish such significant violations of the requirements of the criminal procedural law and incorrect application of the law of Ukraine on criminal responsibility, which could be unconditional grounds for canceling the appealed decision of the appeals court.
31. On the basis of the above, the Court came to the conclusion that the cassation appeal of the prosecutor is inadmissible, and the decision of the Court of Appeal regarding PERSON_1 should be left unchanged.
Guided by Articles 433, 434, 436, 441, 442 of the Criminal Code of Ukraine, the panel of judges decided:
The cassation appeal of the prosecutor is dismissed, and the decision of the Mykolaiv Court of Appeals dated June 1, 2021 regarding PERSON_1 remains unchanged.
The ruling is final and cannot be appealed.