Testimony, which contains the statements of another person, provided with the purpose of proving that another person spoke exactly that way under certain circumstances, cannot be considered testimony from someone else's words in accordance with Art. 97 of the Criminal Procedure Code of Ukraine, since in this case they are a notification of the fact of the statement, which the witness directly observed.
This was emphasized by the Supreme Court by the panel of judges of the First Judicial Chamber of the Criminal Court of Cassation in case No. 166/362/19 .
The circumstances of the case
It is known from the case materials that the man, being in a state of alcohol intoxication, with the purpose of intentionally causing the death of his aunt, due to personal enmity, struck one blow with a stone and at least twenty-one blows with the rod of a car pump handle to the victim's head, causing she suffered bodily injuries from which the latter died.
According to the verdict of the district court, the man was found not guilty of committing the crimes provided for in Part 5 of Art. 152, Part 2 of Art. 186 of the Criminal Code of Ukraine, and was acquitted due to the lack of evidence that he had committed the specified criminal offenses.
By the same sentence, his actions were reclassified from Clause 10, Part 2 of Art. 115 of the Criminal Code of Ukraine on Part 1 of Art. 115 of the Criminal Code of Ukraine and convicted under the provisions of Art. 71 of the Criminal Code of Ukraine to the final punishment of imprisonment for a term of 8 years and 6 months.
The decision of the appellate court upheld the verdict of the local court.
In the cassation appeal, the cassator, in particular, drew attention to the fact that the local court unjustifiably based the conviction on the testimony of the witness, as they do not agree with the testimony of the accused and by virtue of Art. 97 of the Criminal Procedure Code of Ukraine are testimony from other people's words.
While considering the case, the Supreme Court noted that in accordance with Part 1 of Art. 97 of the Criminal Procedure Code of Ukraine, testimony from someone else's words is a statement made orally, in writing, or in another form, regarding a certain fact, which is based on the explanation of another person.
To determine whether testimony, in which the statements of another person are transmitted, are testimony from someone else's words within the meaning of Art. 97 of the Criminal Code of Ukraine, it is necessary to establish whether these statements of another person are provided or used to prove the existence of the fact claimed in this transmitted statement. Testimony, which contains the statements of another person, provided with the purpose of proving that another person spoke exactly that way under certain circumstances, cannot be considered testimony from someone else's words in accordance with Art. 97 of the Criminal Procedure Code of Ukraine, since in this case they are a notification of the fact of the statement, which the witness directly observed.
As can be seen from the verdict, during the trial in the court of first instance, a witness was questioned, who explained that the mother of the accused called him and informed him that the accused had killed the victim. After that, the witness went to the victim's house, where he met his mother, who told him again that the accused, coming home, said that he had killed the victim.
In addition, the local court, during the interrogation of the witness, also established that the latter directly communicated with the accused after the crime was committed, and during this conversation the accused confirmed that he was the one who killed.
Taking into account the above, the panel of judges believes that the testimony of the witness regarding the circumstances of the crime, which he learned from the words of the accused and his mother, by virtue of the provisions of Art. 97 of the Criminal Procedure Code of Ukraine are not hearsay statements, since the said witness personally perceived the direct statements of the accused, who indicated the fact that he had killed the victim.
Under such circumstances, the Supreme Court rejected the arguments of the cassation appeal of the defense attorney regarding the use of testimony from other people's words.
The Supreme Court left the decision of the first and appellate courts unchanged.