The participation of the prosecutor in criminal proceedings in the form of a private prosecution is an additional guarantee of ensuring the rights of the victim. This conclusion was made by the Supreme Court in Resolution No. 510/1347/20.
Supreme Court
In the name of Ukraine
Decree
November 23, 2021, Kyiv #510/1347/20
The Supreme Court by the panel of judges of the second judicial chamber of the Criminal Court of Cassation consisting of:
chaired by L.Yu. KISHAKEVYCHA,
judges: BILYK N.V., OSTAPUKA V.I. —
considered in an open court session the cassation appeal of the prosecutor, who participated in the consideration of the proceedings in the court of first instance, against the decision of the Odesa Court of Appeal dated 04/1/2021 in criminal proceedings against Person 1, Information 1, a native of Reni, Odesa region, who lives in Address 1, a citizen of Ukraine, unconvicted, in the commission of a criminal misdemeanor, provided for in part 1 of article 125 of the Criminal Code.
Content of court decisions and circumstances established by courts
By the decision of the Reniya District Court of Odesa Oblast dated February 1, 2021, the criminal proceedings against Person 1 for committing a criminal misdemeanor, provided for in Part 1 of Article 125 of the Criminal Code, were closed.
The decision of the OAS dated April 1, 2021 left the decision of the Reniya District Court unchanged from February 1, 2021.
The requirements of the cassation appeal and the arguments of the person who filed it
In the cassation complaint, the prosecutor, referring to significant violations of the criminal procedural law, in particular, the provisions of articles 318, 324, 370, 405, 413, 419 of the Criminal Procedure Code and the incorrect application of the law on criminal responsibility, requests to cancel the decision of the appeals court with the appointment of a new trial in appellate court.
In support of his demands, the prosecutor points out that the court of appeal considered the criminal proceedings against Person 1 without the participation of the prosecutor, thereby depriving the prosecution of the opportunity to perform its procedural functions and support the state prosecution in court. At the same time, he notes that the participation of the prosecutor during the trial of criminal proceedings in the form of a private indictment is mandatory, given the procedural guarantees of the parties to the proceedings, defined in Article 22 of the Criminal Procedure Code.
In addition, according to the prosecutor, the appellate court, in violation of the requirements of Article 419 of the Code of Criminal Procedure, leaving his appeal unsatisfied, did not specify all the grounds on which it recognized this appeal as unfounded and closed the proceedings for no reason, not paying attention to the fact that the terms of the pre-trial investigations in the specified proceedings have not ended <…>.
Motives of the Court
According to Art. 370 of the Code of Criminal Procedure, which defines the requirements for the legality, reasonableness and justification of a court decision, it is considered that a decision made by a competent court in accordance with the norms of substantive law in compliance with the requirements for criminal proceedings provided for by the Code of Criminal Procedure is legal; justified is the 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 the CCP; a reasoned decision is a decision in which proper and sufficient reasons and grounds for its adoption are given.
Thus, Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms defines the right to a fair trial. The right to a fair trial protected by Article 6 of the Convention also includes the right to adversarial proceedings.
In national legislation, these principles are reflected in Article 7 of the Criminal Procedure Code, according to which the content and form of criminal proceedings must comply with the general principles of criminal proceedings, among which are the equality of all participants in the process before the law and the court, the adversarial nature of the parties and the freedom of their submission to the court their evidence and in proving their persuasiveness before the court.
Implementation of these principles is carried out, in particular, due to the absence of privileges or restrictions on the rights of the participants in the process, the independent assertion by the prosecution and the defense of their legal positions of rights, freedoms and legitimate interests by the means provided for by the Code of Criminal Procedure, as well as due to the freedom of the parties to criminal proceedings to use their rights within the limits and in the manner prescribed by the Code of Civil Procedure. At the same time, the court is obliged, while maintaining objectivity and impartiality, to create the necessary conditions for the parties to exercise their procedural rights and perform procedural duties.
The appellate court did not comply with the specified requirements of the Criminal Procedure Law.
Thus, according to Article 405 of the Code of Criminal Procedure, the appellate review is carried out in accordance with the rules of trial in the court of first instance, taking into account the features provided for by Chapter 31 of the Code of Criminal Procedure.
According to Clause 3, Part 2, Article 412 of the Criminal Procedure Code, the decision is subject to cancellation in any case, if the court proceedings were conducted in the absence of the prosecutor, except for cases where his participation is not mandatory.
Having checked the materials of the proceedings, the court of cassation established that the arguments set forth in the prosecutor's cassation complaint about significant violations of the criminal procedural law and non-compliance with the principle of adversariality of the parties in the court of appeal are substantiated.
Thus, by the resolution of the Reniya District Court dated February 1, 2021, the criminal proceedings against Person 1 for the commission of a criminal misdemeanor, provided for in Part 1 of Article 125 of the Criminal Code, were closed.
Disagreeing with this decision, the prosecutor and the victim Person 2 filed appeals in which they asked to cancel the decision of the court of first instance and to appoint a new trial in the court of first instance.
As can be seen from the content of the decision, the victim Person 2 did not appear at the court session of the appeals court, having sent a statement in which she asked to consider the appeal without her participation. Also, the prosecutor did not appear before the appellate court, not informing the reason for his absence, however, despite this, the appellate court decided to consider the criminal proceedings against Person 1 in the absence of the prosecutor.
However, the panel of judges of the court of cassation considers the conclusion of the court of appeals regarding the possibility of considering the proceedings in the absence of the prosecutor — unfounded and such that it significantly violates the requirements of the criminal procedural law.
Thus, Articles 129, 1311 of the Constitution provide that the prosecutor's constitutional function and the basis of judicial proceedings are the prosecutor's maintenance of a public accusation in court.
Clause 1, Part 1, Article 2 of the Law "On the Prosecutor's Office" dated 14.10.2014 No. 1697-VII defines among the functions of the prosecutor's office the maintenance of state prosecution in court.
Current criminal procedural legislation establishes that the judicial review of criminal proceedings is carried out with the mandatory participation of the parties to the criminal proceedings, except for the cases provided for by the Code of Criminal Procedure (part 2 of Article 318 of the Code of Criminal Procedure). According to Part 3 of Article 36 of the Criminal Procedure Code, the participation of the prosecutor in court is mandatory, except for the cases provided for by the Criminal Procedure Code (such a case is the prosecutor's refusal to support the state prosecution). Part 2 of Article 318 and Article 324 of the Criminal Procedure Code also do not contain exceptions for which the participation of the prosecutor would be optional, just as Chapter 36 of the Criminal Procedure Code, which establishes the procedure for conducting criminal proceedings in the form of a private prosecution, does not contain such exceptions.
Fulfillment by the prosecution of the procedural obligation regarding the pre-trial investigation of a criminal offense in proceedings in the form of a private prosecution and the maintenance of a state prosecution in court is a guarantee of the implementation of the principles of equality, competition between parties and freedom in presenting their evidence to the court and in proving their persuasiveness before the court, provided for in Article .22 PDA.
Based on the above, the absence of a prosecutor during the trial of a criminal proceeding in the form of a private indictment indicates:
- about the lack of a party to the prosecution (after all, the victim, according to Ch. 36 of the Criminal Procedure Code, is not authorized to support the prosecution, and given his legal status, he is actually unable to effectively gather evidence and support the prosecution on his own);
- about the violation of the principles of equality, competitiveness of the parties and freedom in presenting their evidence to the court and in proving their persuasiveness before the court;
- about the lack of balance of private and public interests in such criminal proceedings.
In this regard, the participation of the prosecutor in criminal proceedings in the form of a private prosecution is an additional legal guarantee of ensuring the rights of the victim in criminal proceedings, and also contributes to a full, comprehensive and objective consideration of the case.
Thus, from the systematic analysis of the criminal procedural law, it follows that during the appellate review of the proceedings regarding Person 1, the court should take into account the legal consequences of the prosecutor's failure to appear at the court session, postpone the trial, determine the date, time and place of the new session and take the necessary measures to notify the prosecutor and ensuring his participation in the proceedings.
The above conclusions correspond to the legal position set forth in the resolution of the Grand Chamber of the Supreme Court of June 26, 2019 (case No. 404/6160/16-k), according to which the participation of the prosecutor during the trial of criminal proceedings in the form of a private indictment is a guarantee of ensuring the principles of equality and competition , as well as protection of the rights and legal interests of the victim, and is mandatory, except in the case when the prosecutor refused to maintain the state prosecution, and the victim expressed his consent to maintain the prosecution in court (Part 5 of Article 340 of the Criminal Procedure Code).
Thus, the panel of judges comes to the conclusion that, contrary to the requirements of Article 36, 324 of the Criminal Procedure Code, in the criminal proceedings against Person 1, the appellate court committed a violation of the principle of adversariality of the parties, since the actual participation of the prosecutor in the proceedings was not ensured in the appellate court.
Considering the fact that the consideration of proceedings without the participation of a prosecutor, in accordance with Part 1 of Article 412 of the Criminal Procedure Code, is a significant violation of the requirements of the Criminal Procedure Law and grounds for annulment of the decision of the court of appeal — the decision of the court of appeal in the criminal proceedings against Person 1 is subject to cancellation with the appointment a new trial in the appellate court.
The presence of such significant violations of the requirements of the criminal procedural law makes it impossible to consider other arguments of the prosecutor's cassation appeal, therefore the prosecutor's cassation appeal is subject to partial satisfaction.
During a new appellate review, the court must check all the arguments presented in the appeals, give them and the conclusions of the court of first instance a proper assessment, and, taking into account all the circumstances of the criminal proceedings that are of significant importance, adopt a legal, justified and motivated decision a decision that will comply with the provisions of Articles 370, 419 of the Criminal Procedure Code.
Guided by Articles 433, 434, 436, 441, 442 of the CCP, the Supreme
ADOPTED:
The cassation appeal of the prosecutor, who participated in the review of the proceedings in the court of appeal, is partially upheld.
The decision of the Odesa Court of Appeal dated April 1, 2021 in the criminal proceedings against Person 1 — to be annulled, to appoint a new review of the proceedings in the court of appeal.
The resolution enters into force from the moment of its promulgation and is not subject to appeal.