Under what circumstances is it possible to re-examine the evidence: the CCS named two conditions

The Criminal Court of Cassation in case No. 606/1855/16-k expressed its opinion regarding the re-examination of the circumstances established during the criminal proceedings.

The position of the CCS on this matter is as follows.
Part 3 of Art. 404 of the Criminal Procedure Code of Ukraine establishes that, at the request of the participants in the court proceedings, the appellate court is obliged to re-investigate the circumstances established during the criminal proceedings, provided that they were investigated by the court of first instance incompletely or with violations, and may investigate the evidence that was not investigated by the court of the first instance, only if the participants of the court proceedings requested the examination of such evidence during the proceedings in the court of the first instance or if they became known after the adoption of the contested court decision.
That is, for the re-examination by the appellate court of the circumstances established during the criminal proceedings, the criminal procedural law defines the mandatory presence (combination) of both the relevant procedural reason (petition of the participant in the court proceedings) and one of the conditions laid down in the law (incompleteness of the investigation of the specified circumstances or the presence of certain violations in the course of their research), which can also be considered as a factual basis for such research.
At the same time, the mere disagreement of a participant in court proceedings with the assessment of certain specific evidence cannot serve as a basis for their mandatory re-examination.
The refusal to grant the petition in the absence of reasoned arguments regarding the need for re-examination of the evidence in the case does not indicate that the appellate court violated the requirements of the criminal procedural law or that the trial was incomplete.
In addition, according to the legal position of the Supreme Court, set out, in particular, in the resolution of the Grand Chamber of October 16, 2019 (proceedings No. 13-43 ks 19), during appeal proceedings, re-examination of evidence is a right, not an obligation of the court.
The circumstances of the case
By the verdict of the Terebovlyan District Court of Ternopil Oblast dated December 23, 2020, which was left unchanged by the decision of the Ternopil Court of Appeal dated June 23, 2021, the person was convicted of the crime provided for in Part 2 of Article 286 of the Criminal Code of Ukraine, to punishment in the form of deprivation of liberty for a term of 4 years with deprivation of the right to drive vehicles for a term of 2 years.
On the basis of Art. 75 of the Criminal Code of Ukraine is exempted from serving the prescribed punishment with probation with a probationary period of 2 years, with the imposition of obligations provided for in clauses 1, 2, part 1 of Art. 76 of the Criminal Code of Ukraine.
Based on the results of the review of the verdict of the court of first instance, the appellate court, taking into account the specific circumstances of the case, agreed with the assessment of the evidence examined by the local court and taken into account when proving the guilt of the convicted person in committing the incriminated criminal offense, duly justifying its conclusions.
According to the content of the cassation appeal, the convicted person, not agreeing with the court decisions due to the inconsistency of the conclusions of the court of first instance with the actual circumstances of the criminal proceedings, a significant violation of the requirements of the criminal procedural law and the incorrect application of the law of Ukraine on criminal liability, asks for their cancellation and the criminal proceedings to be closed. The convict motivated his demands by the fact that the court of first instance:
  • did not pay enough attention to the contradictions between the testimony of the convicted person, the witness and other witnesses regarding the circumstances of the event;
  • unjustifiably found him guilty of committing the incriminated crime, since there is no sufficient evidence of his guilt in the materials of the criminal proceedings;
  • issued a verdict that does not meet the requirements of the Criminal Procedure Code of Ukraine.
In addition, the convict refers to the fact that the appellate court unjustifiably refused to grant the defense's request for a re-examination of the evidence, did not properly check and did not refute the arguments of the appeals and issued a decision that does not meet the requirements of Art. 370 of the CCP of Ukraine.
But the panel of judges of the criminal court of cassation agreed with the conclusions of the court of appeal.
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