The Supreme Court, by a panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation, considered case No. 712/11679/18 and determined when the testimony of a witness is inadmissible evidence.
The circumstances of the case
It is known from the case materials that the man was found guilty of the fact that he, being in a state of alcohol intoxication and being at his place of permanent residence in the apartment, approached a separate bed where his acquaintance was sleeping and, on the basis of personal hostility, inflicted numerous injuries on her punches to a vital organ, namely to 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.
The verdict of the Sosniv District Court of Cherkasy of the man convicted under Part 2 of Art. 121 of the Criminal Code of Ukraine to a penalty of imprisonment for a term of 9 years. The decision of the court of appeal left the verdict of the court of first instance unchanged.
In a cassation appeal, the cassation officer 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, did not warn him of criminal responsibility for giving knowingly false statements and did not make him take an oath.
From the materials of the criminal proceedings, it can be seen that by the decision of the Criminal Court of Cassation of the Supreme Court dated March 24, 2021, the decision of the Kropyvnytskyi Court of Appeal dated August 25, 2020 on the cassation appeal with the additions of the defense counsel in the interest of the convicted person was canceled and a new trial was ordered in the court of appeal.
The Supreme Court in the motivational part of the said resolution, among other things, indicated 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).
Thus, it can be seen from the materials of the criminal proceedings 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.
The Supreme Court noted that neither the witness nor the prosecution side, on whose behalf the witness spoke, had provided documents that would confirm her identity.
The appellate court did not take measures to establish the identity of the specified witness during a new review of the criminal proceedings and, accordingly, reached unmotivated conclusions that affected the adoption of a legal and well-founded decision.
Thus, the appellate court, in violation of the requirements of Part 2 of Art. 439 of the Criminal Procedure Code of Ukraine, did not eliminate 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 a premature conclusion that the specified testimony is admissible evidence.
The Supreme Court annulled the decision of the appellate court and ordered a new trial in the appellate court.