A person's actions aimed at counteracting unjustified and excessive violence by a police officer cannot be qualified as resistance. This conclusion was made by the Supreme Court in Resolution No. 671/396/20.
In the name of Ukraine
November 10, 2021, Kyiv #671/396/20
The Supreme Court by the panel of judges of the third judicial chamber of the Criminal Court of Cassation consisting of:
chaired by O. L. BULEYKO,
judges: ANISIMOVA H. M., BORODIA V. M. —
considered in an open court session the cassation appeal of the defender of Chorny Yu. O. against the verdict of the Volochyskyi District Court of Khmelnytskyi Region dated 11.09.2020 and the decision of the Khmelnytskyi Court of Appeals dated 28.04.2021 in the criminal proceedings, the data of which was entered in ЕРДР #*00006, on the charge of Persons 1, Information 1, a citizen of Ukraine, who was born in the village of Viytivtsi, Volochyskyi district, Khmelnytskyi region, lives at Address 1, has not been convicted of the crimes provided for in part 2 of article 342, part 2 of article 345, part 1 of article .296 of the Criminal Code.
The content of contested court decisions and the circumstances established by the courts
According to the verdict of the Volochysk District Court dated September 11, 2020, Person 1 was sentenced under Part 2 of Article 342 of the Criminal Code to a sentence of 1 year of restriction of liberty; according to Part 2 of Article 345 of the Criminal Code – to punishment in the form of restriction of freedom for 2 years; under Part 1 of Article 296 of the Criminal Code – to punishment in the form of restriction of freedom for 6 months. On the basis of Part 1 of Article 70 of the Criminal Code for a set of crimes, by substituting a less severe punishment for a more severe one, the final punishment is determined in the form of restriction of freedom for 2 years.
A decision was made regarding the civil claim and material evidence.
According to the verdict, Person 1 was found guilty of resisting an employee of a law enforcement agency during the performance of his official duties, intentionally inflicting light and moderate physical injuries on employees of a law enforcement agency, in connection with their performance of official duties, as well as gross violation public order, on the grounds of clear disrespect for society, which was accompanied by special audacity.
So, on January 6, 2020, in the village of Viytivtsi, at approximately 9:38 p.m., near the "Greek Valley" shopping and hotel complex, by the instructor of Company No. 3 of the Patrol Police Department in Khmelnytskyi Region, Police Sergeant Person 2, and the Inspector of Company No. 3 UPP, Police Lieutenant Person 3, during patrolling the M-12 highway was escorted by a Toyota Avensis vehicle with foreign registration, number plate #1, driven by Person 1, on suspicion of the driver driving the vehicle while under the influence of alcohol. In the future, the police officers made a request to stop the indicated vehicle by turning on flashing blue and red beacons and a special sound signal. However, Person 1 did not comply with the demands of the police officers to stop the vehicle and continued driving, after which, near the farm on the street. Ivana Franka, 29, in the village of Viytivtsi, left the car and hid from the police at his place of residence at Address 1.
A few minutes after that, Person 1, being in a state of alcoholic intoxication, came out of the house in which he lives and entered into a conflict with police officers Person 2 and Person 3, who were in police uniforms, with chevrons, epaulettes, other appropriate attributes and means of personal protection. During the conflict, Person 1, realizing his criminal intent, acting deliberately, actively resisted the police officers, behaved aggressively, pushed and grabbed their clothes, did not respond to the latter's lawful demands, refused to stop his illegal actions and threatened the police officers with physical violence.
Subsequently at approximately 9:40 p.m., Person 1, acting with intent to cause bodily harm, punched Person 2 approximately 3 times in the face, causing minor bodily injury, and kicked Person 3 twice in the left knee joint, causing bodily harm to Person 2 of moderate severity, which caused a long-term health disorder.
In addition, on January 26, 2020, at approximately 2:00 p.m., Person 1, being near the "ANP" gas station, located on the street Myru, 1-a in the village of Vyytivtsi, being in a state of alcohol intoxication, grossly violating public order, for the reasons of clear disrespect for society, acting with particular audacity, offensively clinging to Person 4, calling him obscene words, after which he gratuitously attacked the latter several blows with fists to the face and legs to the body, from which the latter fell to the ground. Person 1 then kicked and punched Person 4 multiple times in various parts of his body, causing him minor injuries that caused him to be temporarily ill.
The decision of the State Administrative Court dated April 28, 2021 of the Volochysk District Court dated September 11, 2020 regarding Person 1 was left unchanged.
Requirements of the cassation appeal and generalized arguments of the person who filed it
At the cassation, defense counsel Black Yu.O., referring to a significant violation of the requirements of the criminal procedural law and the incorrect application of the law on criminal responsibility, requests that the court decisions regarding Person 1 be annulled, and the criminal proceedings be referred to the court of first instance for a new trial. According to the defense counsel, Person 1's actions do not constitute the crimes provided for in Part 2 of Article 342 and Part 2 of Article 345 of the Criminal Code. It indicates that the court unjustifiably did not take into account the evidence of the defense, which refutes the guilt of Person 1 in the specified crimes. In addition, he draws attention to the fact that the local court unjustifiably found Person 1 to have committed a crime while intoxicated as an aggravating circumstance, since there is no medical evidence in the criminal proceedings that would indicate such a condition. The specified circumstances were not properly evaluated by the appellate court, which, contrary to the provisions of Article 419 of the Criminal Procedure Code, did not check all the arguments of the defense side, did not give substantiated answers to them, and unjustifiably left the verdict of the first instance court unchanged.
Positions of other participants in the court proceedings
In the court session, prosecutor Krutsenko T.V. objected to the satisfaction of the cassation appeal of the defense attorney Chornoy Y.O. <…>.
Motives of the Court
As can be seen from the materials of the criminal proceedings, in the appeal, Belyakov's defense attorney A.V. did not agree with the conclusion of the court of first instance that Person 1's actions contained the elements of crimes provided for in Part 2 of Article 342 and Part 2 of Article 345 of the Criminal Code. Motivating her position, she noted that the conclusion of the local court does not correspond to the actual circumstances of the criminal proceedings and was made as a result of an incomplete investigation of the evidence and without proper clarification of the actual circumstances of the event. She referred to the presence of necessary defense in the actions of Person 1 and provocative actions by the police officers of Person 3 and Person 2. Among other things, she pointed to the severity of the punishment assigned to Person 1. The defender also referred to the groundlessness of the local court's conclusions regarding the resolution of the civil claims of the victims Person 3 and Person 2 for compensation for moral and material damage. In addition, she asked to investigate a number of evidences, which, in her opinion, disprove the guilt of Person 1 in committing the crimes charged against him.
However, leaving the defense counsel's appeal unsatisfied, the appellate court did not adequately motivate its conclusions, did not check all the arguments of the appeal and did not give comprehensive answers to them.
In particular, the arguments of the appeal remain unverified regarding the absence in the actions of Person 1 of criminal offenses provided for in part 2 of article 342 and part 2 of article 345 of the Criminal Code, as well as the inconsistency of the court's conclusions in this part with the actual circumstances of the case due to the incompleteness of the trial, namely, the failure of the court to take into account the testimony of witnesses Person 5, Person 6, and Person 7 regarding the behavior of police officers and data from the video recording from the chest camera of Person 3. That is, the arguments of the defense with reference to specific evidence related to significant circumstances, so they required a detailed answer to them in decisions of the Court of Appeal.
Thus, in the verdict, the court of first instance found it proven that the police officers used physical force, special equipment and handcuffs as a result of the fact that the convict threatened the police officers and behaved inappropriately.
Instead, at the trial of the local court, the witnesses Person 5, Person 6 and Person 7 claimed that the police provoked a conflict with Person 1 and attacked him for no reason, he did not resist them, but on the contrary defended himself from the illegal actions of the police officers Person 2 and Person 3.
However, the first-instance court, having critically assessed the testimony of the specified witnesses, did not provide an explanation why it did not take this evidence into account, noting only that it was contradictory.
At the same time, when solving the question of the existence of "resistance" in the actions of the accused person within the meaning of Article 342 of the Criminal Code, the court must take into account the behavior of the police officer or police officers when they presented legal demands and the further development of events in connection with these demands .
According to established judicial practice, resistance within the meaning of Article 342 of the Criminal Code is active physical opposition to the police officer's performance of his legal powers. Thus, based on this position, in order to determine the presence of "resistance" in the actions of the accused person within the meaning of this provision, the prosecution must prove both the presence of an objective side of the act, i.e. a certain active physical influence on the part of the accused person, and the direction of his intention precisely for opposing the performance of official powers.
It should be taken into account that the actions of a person aimed at countering unjustified and excessive violence by a police officer cannot be qualified as resistance under Article 342 of the Criminal Code. If a person pushes a policeman away to prevent a blow with a baton, or covers his face from a blow, as a result of which the policeman gets an arm injury, or grabs the policeman's clothes to prevent him from falling, such actions cannot be considered resistance within the meaning of Article 342 of the Criminal Code, since their purpose is not to oppose the legal activities of the police, but to avoid danger to the life and health of a person.
In order to draw a not always obvious line between resistance within the meaning of Article 342 of the Criminal Code and actions caused by reflex reactions or self-defense, the court must take into account not only the fact of physical influence on the police officer by the accused person, but also the context in which the event took place .
That is, it is necessary to take into account the compliance of police actions with the requirements of normative acts regulating police activity. In particular, Article 29 of the Law "On the National Police" requires that the police measure be, among other things, necessary and proportionate. Therefore, when deciding whether the actions of the accused have resistance, the court must make sure that the measures applied to the accused by the police were necessary and proportionate to the existing situation and were applied in accordance with the procedure established by law.
Among other things, Article 43 of the Law "On the National Police" requires that the police officer warn the person in advance of the intention to use physical force and that the person is given enough time to comply with the police officer's lawful request.
This provision exempts the police officer from this duty only in the event that delaying the use of force may cause harm to the life and health of a person and/or the police officer or other serious consequences, or in the existing situation, such a warning is unjustified or impossible .
In the case of the use of force by the police without warning, the court must determine whether the person's actions were determined by an instinctive reaction to unexpected violence and an attempt to avert a danger to life and health.
The same considerations should also be taken into account when assessing the presence or absence of a crime under Article 345 of the Criminal Code.
Thus, the establishment of the specified aspects of the event is important for the conclusion about the presence or absence of crimes in the person's actions provided for by Article 342 and Article 345 of the Criminal Code.
Since Belyakova's defense attorney A.V., challenging the verdict of the local court, emphasized the incompleteness of the local court's consideration of the case and its incorrect assessment of the evidence, taking into account that the specified violations, if confirmed, may affect the legality and reasonableness of the court's verdict against Person 1, corresponding the arguments of the defense side required a thorough examination, with detailed reasons for recognizing them as unfounded, including through a re-examination of the contested circumstances, which the appellate court did not do.
Also, the appeal court's request for re-examination of defense witnesses, re-examination of the expert's opinion on the state of health of Person 1 and the video recording from the policeman's chest camera of Person 3, which, according to the defender, were not fully investigated, were also left without proper attention by the appellate court. because of which they were given an incorrect assessment.
Provision of such conditions is directly provided for in Part 3 of Article 404 of the Criminal Procedure Code, according to which, at the request of the participants in the court proceedings, the court of appeal is obliged to re-investigate the circumstances established during the criminal proceedings, provided that they were not fully investigated by the court of first instance or with violations, and may examine evidence that was not examined by the court of first instance, only if the participants of the court proceedings requested the examination of such evidence during the proceedings in the court of first instance or if they became known after the adoption of the contested court decision.
However, the appellate court did not fulfill such requirements of the procedural law. Ignoring the justification of the defense regarding the need to re-examine the specified evidence and provide an assessment of all the circumstances of the criminal proceedings, the appellate court instead only reviewed the appeal in the part of the imposed punishment.
Therefore, without properly checking the arguments of the appeal, without citing any reasons for recognizing them as groundless, the appeals court came to an unfounded conclusion about leaving the verdict of the local court unchanged.
Considering the above, the decision of the appellate court does not comply with the provisions of Articles 370, 404, 419 of the Criminal Procedure Code, and the violations committed by this court of the requirements of the Criminal Procedure Law by virtue of the provisions of Part 1 of Article 412 of the Criminal Code of the Criminal Code are significant because they prevented the court from making a legal and well-founded judgment.
Therefore, the cassation appeal of the defender is subject to partial satisfaction, and the decision of the appellate court regarding Person 1 is to be annulled with the appointment of a new trial in the appellate court, during which it is necessary to take into account the above, to carefully check the arguments of the appeal, if necessary and if there are relevant grounds, to re-investigate the circumstances of the criminal case proceedings and make a legal, justified and reasoned court decision.
Guided by Articles 433, 434, 436, 438, 441, 442 of the CPC, the Supreme
The cassation appeal of the defender of Chorny Yu.O. satisfy in part.
The decision of the Khmelnytskyi Court of Appeal dated April 28, 2021 regarding Person 1 shall be annulled and a new trial shall be ordered in the court of appeal.
The decision is final and cannot be appealed.