DENIS PONOMARENKO, attorney, partner at the “Barristers” law firm, chair of the Criminal Law and Procedure Committee of the Odesa Regional Bar Association
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In criminal proceedings, the proper determination of the composition of the court is a key aspect of ensuring a fair trial. Particular attention must be paid to cases where the charges involve an attempt to commit serious or particularly serious crimes, such as an attempt at intentional homicide, as provided for in Part 2 of Article 15 and Part 1 of Article 115 of the Criminal Code.
According to Part 3 of Article 68 of the Criminal Code, the maximum penalty for an attempted crime may not exceed two-thirds of the maximum term of imprisonment for the completed crime. On this basis, it would seem that one could conclude that a case involving an attempt to commit a crime punishable by up to 15 years of imprisonment should be heard by a single judge, since the actual maximum penalty for the attempt is limited to 10 years.However, such an interpretation raises several fundamental issues related to the correct understanding of concepts in the provisions of substantive and procedural law. This article analyzes these issues in detail and proposes improvements to legal practice.
Therefore, this article aims to establish the correct interpretation and application of the provisions of Ukraine’s criminal and criminal procedural legislation regarding:
1. Determining the composition of the court in cases involving attempted crimes, in particular those provided for in Part 2 of Article 15 and Part 1 of Article 115 of the Criminal Code.
2. Establishing the statute of limitations for criminal prosecution for attempted intentional homicide, taking into account the classification of such an act as a serious or particularly serious crime.
The issue involves the correct understanding and distinction between such concepts as “prescribed punishment” and “imposition of punishment,” as well as the proper application of Article 68 of the Criminal Code when determining the composition of the court and the statute of limitations for criminal prosecution.
Pursuant to paragraph 2 of Part 2 of Article 31 of the Code of Criminal Procedure, criminal proceedings for crimes for which
a penalty of imprisonment exceeding 10 years, are conducted collegially by a panel of three judges at the request of the defendant.
Article 68 of the Criminal Code governs the imposition of punishment for an attempted crime. Part 3 of this article stipulates that the maximum punishment for an attempted crime may not exceed two-thirds of the maximum term of punishment for a completed crime.
Thus, we see that in paragraph 2 of Part 2 of Article 31 of the Code of Criminal Procedure, the legislature uses the term “provides for punishment,” while the provision of Article 68 of the Criminal Code uses “imposition of punishment”; this raises the question of whether these concepts are identical or different. Let’s examine this.
The concept of “provides for punishment” means that a specific legal provision or law establishes the possibility of punishment for a particular offense; for example, an article of the Criminal Code provides for punishment in the form of imprisonment for intentional homicide.
The concept of “imposing a sentence” refers to the enforcement of a punishment prescribed by law against a specific individual who has committed an offense; for example, the court handed down a sentence imposing a 10-year prison term for committing a crime.
Thus, we see that “providing for a punishment” refers to the potential possibility of punishment enshrined in a legal norm, while “imposing a punishment” refers to the implementation of this possibility in a specific case where the offense has been proven and a sentence has been handed down.
Thus, the former relates to the abstract level of a legal provision, while the latter relates to the practical aspect of its implementation.
Consequently, we see that paragraph 2 of Part 2 of Article 31 of the Code of Criminal Procedure refers to the sanction provided for in a specific substantive law provision of the Special Part of the Criminal Code, rather than to the imposition of a penalty as referred to in Article 68 of the Criminal Code; as demonstrated by the arguments presented, these are distinct concepts. Therefore, the application of Article 68 of the Criminal Code to determine the composition of the court at the preliminary hearing stage is legally erroneous.
Otherwise, the assertion that Article 68 of the Criminal Code may be applied when determining the number of judges on the bench would allow the court, when determining the number of judges, to also refer to Articles 65–67 of the Criminal Code or to Article 69 of the Criminal Code, since these provisions, like Article 68 of the Criminal Code, govern the imposition of punishment.
Moreover, Part 2 of Article 31 of the Code of Criminal Procedure does not address what punishment will be imposed—which is governed by the General Part of the Criminal Code, taking into account the evidence and circumstances established in the case— but rather which penalty is provided for by the Special Part of the Criminal Code—that is, the range from the minimum to the maximum term of the sanction under the relevant article.
Therefore, if a motion is filed by a person accused of committing a crime provided for in Part 2 of Article 15 or Part 1 of Article 115 of the Criminal Code, such a case must be heard by a panel of judges pursuant to the requirements of paragraph 2 of Part 2 of Article 31 of the Code of Criminal Procedure.
I now propose to consider the issue of the statute of limitations for bringing criminal charges for an offense provided for in Part 2 of Article 15 and Part 1 of Article 115 of the Criminal Code.
The issue of the statute of limitations for criminal prosecution is an important aspect of criminal law that ensures a balance between the societal need to hold the guilty party accountable and the individual’s right to protection against indefinite criminal prosecution. This issue becomes particularly relevant in cases of uncompleted crimes, such as a completed attempt at intentional homicide (Part 2 of Article 15 and Part 1 of Article 115 of the Criminal Code).
Part 2 of Article 15 of the Criminal Code defines a completed attempt as a situation in which a person has performed all the actions that, in their opinion, were necessary to carry the crime through to completion, but the crime was not completed due to circumstances beyond their control.
This form of criminal conduct indicates a high degree of danger to society, since the person’s intent to carry out the crime had reached the final stage.
Part 1 of Article 115 of the Criminal Code provides for punishment for intentional homicide in the form of imprisonment for a term of 7 to 15 years. This crime is classified as particularly serious under Part 6 of Article 12 of the Criminal Code, since the maximum penalty exceeds 10 years.
Thus, in the case of a completed attempt at intentional murder, there is a direct link to the classification of the principal offense, as reflected in the penalty provision of Part 1 of Article 115 of the Criminal Code.
Part 3 of Article 68 of the Criminal Code stipulates that for the commission of an attempt to commit a crime, the term or severity of the punishment may not exceed two-thirds of the maximum term of punishment provided for in the penalty provision of the relevant article of the Special Part of the Criminal Code.
For a completed attempt at intentional homicide (Article 15(2), Article 115(1) of the Criminal Code), the maximum punishment is limited to 10 years of imprisonment (⅔ of 15 years).
According to Part 5 of Article 12 of the Criminal Code, crimes with a maximum penalty of up to 10 years of imprisonment fall into the category of serious crimes. Thus, a completed attempt at intentional homicide ceases to be an especially serious crime and is classified as a serious crime.
Pursuant to Part 1 of Article 49 of the Criminal Code, the statute of limitations for serious crimes is 10 years.
Thus, under Part 2 of Article 15 and Part 1 of Article 115 of the Criminal Code (completed attempt at intentional homicide), the statute of limitations for criminal prosecution is 10 years.
From the foregoing, we can draw the following conclusion: when resolving a purely procedural issue—determining the numerical composition of the court—Article 68 of the Criminal Code cannot be applied, whereas when resolving the issue of the statute of limitations for criminal prosecution, it must be applied.
Author: Denys Ponomarenko, Attorney and Partner at Barristers
Source: https://zib.com.ua/ua/165254-zamah_na_zlochin_sklad_sudu_ta_stroki_davnosti_prityagnennya.html?fbclid=IwY2xjawIEyudleHRuA2FlbQIxMAABHZAX-h19N_7asKIVWfzd_d3nldpKCZvRPaz6jdYA-KgNDA2uiNs4B5Rvcg_aem_MMyg0D5jjRbrDYx46CGcJA