Iryna Kuzina, an attorney at Barristers Law Firm: “The Supreme Court issued a ruling on the possibility of simultaneously applying Articles 69 and 75 of the Criminal Code of Ukraine.”

The Supreme Court issued a ruling on the possibility of simultaneously applying Articles 69 and 75 of the Criminal Code of Ukraine

In a recent ruling by a panel of judges of the Cassation Criminal Court within the Supreme Court dated August 20, 2019, in Case No. 753/13851/17 (EDRPS No. 83820026), the issue of the possibility of simultaneously applying these two articles, which humanize punishment, was once again raised.

Thus, Article 69 of the Criminal Code of Ukraine allows the court to impose a sentence below the minimum threshold if there are several mitigating circumstances that substantially reduce the severity of the crime committed, taking into account the defendant’s character and providing a rationale for its decision.

Article 75 of the Criminal Code of Ukraine grants the court the right to exempt a person from serving a sentence—specifically, a term of imprisonment not exceeding five years— subject to probation, taking into account the severity of the crime, the character of the offender, and other circumstances of the case, if the court concludes that the convicted person can be rehabilitated without serving the sentence.

In the aforementioned Supreme Court ruling, the facts of the case indicated that three individuals committed a street robbery by prior conspiracy as a group, combined with the use of violence dangerous to the victim’s health (spraying the contents of a “Teren” canister and choking).

The panel of judges noted that, in accordance with the requirements of Articles 50 and 65 of the Criminal Code, a person who has committed a crime must be sentenced to a punishment that is necessary and sufficient for their rehabilitation and to prevent future crimes. Based on this objective and the principles of justice, proportionality, and individualization, the punishment must be commensurate with the nature of the acts committed, their danger, and the personal circumstances of the guilty party.

In determining the measure of punishment for the two defendants, the trial court cited mitigating circumstances—sincere remorse, cooperation with the investigation, and the absence of aggravating circumstances— information regarding the personal circumstances of the defendants—in particular, the fact that one defendant is being held criminally liable for the first time, while the other is considered to have no prior convictions pursuant to Article 89 of the Criminal Code—as well as the positive character references for the convicted persons and their employment status.

At the same time, the court did not provide any reasoning for its decision to release the convicted persons from serving their sentences pursuant to Article 75 of the Criminal Code, nor did it substantiate the grounds on which it concluded that the convicted persons could be rehabilitated without serving their sentences. The court failed to take into account the specific circumstances of the crime—the premeditated nature of the perpetrators’ actions, the division of roles, the means they used to achieve their common criminal goal, as well as the significant danger to society posed by the offense, which consists not only in the infringement of the victim’s property rights but also in the harm caused to his health.

Taking these circumstances into account, in the opinion of the panel of judges, the release of the two convicts from serving their sentences pursuant to Article 75 of the Criminal Code constitutes an incorrect application of Ukrainian criminal law, as it does not serve the purpose of punishment —the rehabilitation of convicts and the prevention of new crimes—and constitutes an unjustifiably lenient coercive measure that cannot be considered fair, proportionate, or commensurate with the severity of the crime committed and its consequences.

This position of the Court of Cassation reflects a general approach under which the simultaneous application of Articles 69 and 75 of the Criminal Code of Ukraine is the exception rather than the rule.

In general, there is an ongoing debate within the Cassation Criminal Court regarding the “so-to-speak, doubling of the humanization of punishment,” as can be seen in Case No. 51-5790km18 (the separate opinion of Judge N.S. Stefaniv dated August 15, 2019, was published in the Unified State Register of Court Decisions under No. 83820036, Case No. 664/425/16-k).

Perhaps the Grand Chamber of the Supreme Court will consider the issue more broadly than merely in the context of the simultaneous application of Parts 3 and 4 of Article 68 of the Criminal Code of Ukraine and will formulate its position on the “doubling of humanization” as such. Either the non-discrimination approach or the approach of just punishment for crimes against life will prevail—both of which can be justified by both the Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms.

Iryna Kuzina, Attorney at Law, Barristers Law Firm