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14.01.2022

The Supreme Court explained in which case the testimony of a witness is inadmissible evidence

The testimony of a witness is inadmissible evidence if he does not have documents that would confirm his identity.

The Supreme Court came to this conclusion while reviewing case No. 712/11679/18 in the cassation procedure.
Literally, the panel of judges of the Third Judicial Chamber of the Cassation Criminal Court emphasized that when establishing the identity of a witness, the local court did not comply with the requirements of Art. 352 of the Criminal Procedure Code of Ukraine, however, the appellate court did not pay due attention to these violations and did not take into account the fact that the identity of the witness should not cause reasonable doubts among the parties, and in the presence of such doubts, the information about the person should be documented during the trial (except in cases application of security measures to witnesses).
From the materials of the criminal proceedings, it was clear that during the trial, the defense attorney, who did not defend himself during the pre-trial investigation and did not participate in the interrogation of the witness in accordance with Art. 225 of the Criminal Code of Ukraine, categorically objected to the questioning of the witness due to the fact that the person being questioned did not have documents that would allow him to be properly identified, and the convicted person indicated that he did not know the person in the courtroom.
Neither the witness nor the prosecution side, on whose behalf the witness appeared, provided documents that would confirm her identity.
The appellate court during a new review of the criminal proceedings did not comply with the instruction of the court of cassation, as it did not take measures to establish the identity of the specified witness and, accordingly, reached unmotivated conclusions that affected the adoption of a legal and well-founded decision.
That is, the appellate court, in violation of the requirements of Part 2 of Art. 439 of the Criminal Procedure Code of Ukraine, did not comply with the instruction of the court of cassation, as it did not remove the doubt of the defense in the person of the witness, compliance by the court of first instance with the requirements of Art. 352 of the Criminal Procedure Code of Ukraine during the interrogation of this witness and came to the premature conclusion that the specified testimony is admissible evidence.
The circumstances of the case
Under the circumstances stated in the verdict, the citizen was found guilty of the fact that at night, being in a state of alcoholic intoxication and being outside his place of permanent residence in the apartment, he approached a separate bed where his acquaintance was sleeping, and on the ground of personal hostility inflicted numerous blows with his fists on a vital organ, namely on the head, which caused severe bodily injuries as a sign of danger to life at the time of the incident, as a result of which the victim died at the scene of the crime.
In the cassation appeal with additions, the defense attorney, referring to significant violations of the requirements of the criminal procedural law, requested the verdict of the local court and the decision of the court of appeal to be canceled and a new trial to be ordered in the court of first instance.
In justification of his position, he noted that inspections of the scene (apartment) were carried out in the absence of the voluntary consent of its owner and the corresponding decision of the investigating judge, and therefore the protocols drawn up based on the results of the specified investigative actions are inadmissible evidence, which the court cannot refer to when deciding court decision.
The defense counsel also considers the testimony of a witness obtained in accordance with Art. 225 of the Criminal Procedure Code of Ukraine and in the court session, due to the fact that the court did not properly identify the person who was interrogated, he was not warned of criminal liability for giving knowingly false statements and was not sworn.
Regarding the violations committed by the appellate court, the defense attorney insisted that the arguments of the defense's appeal regarding the cited significant violations of the requirements of the Criminal Procedure Law were not considered properly, and therefore the decision made as a result of the appellate review is not motivated, which violates the prescriptions Art. 419 of the CPC of Ukraine.
In addition, the defense attorney pointed out that the appellate court violated the requirements of Art. 439 of the Criminal Procedure Code of Ukraine, since he did not comply with the instruction of the Supreme Court, since he did not eliminate the doubt of the defense in the person of the witness and the compliance of the court of first instance with the requirements of Art. 352 of the Criminal Procedure Code of Ukraine during the interrogation of this witness.
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