THE JURISDICTION OF THE COURT OF FIRST INSTANCE REGARDING THE DISMISSAL OF CRIMINAL PROCEEDINGS IN CONNECTIONCONNECTION WITH THE DECRIMINALIZATION OF AN ACT: DOCTRINE AND PRACTICE

The fact that a crime is no longer considered a public danger as a result of decriminalization does not mean that there are no grounds for criminal liability.

The Criminal Procedure Code of Ukraine, in Article 284, which establishes the court’s authority to dismiss criminal proceedings, provides that if the circumstances specified in paragraphs 1 and 2 of Part 1 of this article are revealed during the trial, the court is required to issue an acquittal. If the circumstances provided for in subparagraphs 5, 6, 7, 8, 9, and 9-1 of the first part of this article are discovered during the trial, as well as in the case provided for in subparagraphs 2 and 3 of the second part of this article, the court shall issue a ruling to dismiss the criminal proceedings. However, these provisions of the Code of Criminal Procedure of Ukraine do not provide an answer to the question of how the court should proceed in a situation where an act has been decriminalized, that is, the circumstance provided for in paragraph 4 of Part 1 of Article 284 of the CPC of Ukraine—a law has entered into force that abolishes criminal liability for an act committed by a person. Paragraph 2 of Part 3 of Article 314 of the CPC of Ukraine, on the other hand, provides that during a preliminary court hearing, the court has the right to issue the following decisions: to dismiss the proceedings if the grounds provided for in paragraphs 4–8, 10 of Part 1 or Part 2 of Article 284 of this Code; thereby recognizing the possibility of applying Paragraph 4 of Part 1 of Article 284 of the Criminal Procedure Code of Ukraine in court proceedings. The Supreme Court of Ukraine’s information letter “On Certain Issues Regarding the Conduct of Judicial Hearings in First-Instance Proceedings in Accordance with the Criminal Procedure Code of Ukraine” stated that the court must take into account the provisions of paragraphs 4–8 of Part 1 and Part 2 of Article 284 of the CPC and, if the circumstances specified therein are identified, issue a ruling to dismiss the criminal proceedings. In general, the CPC of Ukraine regulates the application of the grounds for closing criminal proceedings provided for in paragraph 4 of Part 1 of Article 284 of the CPC of Ukraine—namely, the entry into force of a law abolishing criminal liability for an act committed by a person—in a rather piecemeal manner.

It should be noted that the Criminal Chamber of the Supreme Court provided a specific answer to this question in its resolution dated December 3, 2019. By a judgment of the Kremenets District Court of Ternopil Oblast dated September 12, 2018, PERSON_1 was found guilty and sentenced to restricted liberty for a term of 1 year. Pursuant to Article 75 of the Criminal Code, PERSON_1 was released from serving the sentence on probation for a period of 1 year, with the obligations set forth in paragraphs 1 and 2 of Part 1 of Article 76 of the Criminal Code imposed upon him. In the cassation appeal, the prosecutor requested that the court decisions be overturned due to a substantial violation of the requirements of criminal procedural law and the incorrect application of Ukrainian criminal law, and to dismiss the criminal proceedings against PERSON_1 pursuant to paragraph 4 of Part 1 of Article 284 of the Code of Criminal Procedure, due to the decriminalization of the offense. The Criminal Chamber of the Supreme Court noted that, when considering the convicted person’s appeal seeking a less severe sentence, the appellate court left the sentence unchanged, while failing to take into account that on January 1, 2019, Law No. 2531-VIII entered into force, introducing the relevant amendments to Article 246 of the Criminal Code. That is, given the existence of grounds provided for in paragraph 4 of Part 1 of Article 284 of the Code of Criminal Procedure to dismiss the criminal proceedings against PERSON_1, in connection with the abolition of criminal liability for the criminal offense he committed, the appellate court failed to comply with the mandatory requirements of criminal procedural law and did not dismiss the proceedings, thereby committing a material violation of the requirements of criminal procedural law set forth in paragraph 1 of Part 2 of Article 412 of the Code of Criminal Procedure. In doing so, the Criminal Chamber of the Supreme Court confirmed the possibility of a court closing criminal proceedings pursuant to paragraph 4 of Part 1 of Article 284 of the CPC of Ukraine. This position should be endorsed; however, a number of issues regarding the application of paragraph 4 of Part 1 of Article 284 of the Code of Criminal Procedure of Ukraine in court proceedings remain unresolved.

Given that a decision to dismiss criminal proceedings due to the absence of the elements of a crime in an act—in cases where the criminality and punishability of that act were eliminated by a new criminal law before the judgment became final— ensures compliance with the requirement of equal grounds for the application of the new criminal law to persons who, in accordance with Article 62 of the Constitution of Ukraine regarding the issue of criminal liability, are presumed innocent, regardless of whether the act was committed before or after its adoption. Such a decision establishes the absence of criminality and punishability of the act under the new criminal law and, accordingly, does not entail any criminal-law consequences for the person; on the contrary, it is aimed at protecting that person’s rights and cannot, by its very nature, be regarded as causing harm to them, and therefore—given that the issue of criminal liability for an act that has ceased to be a crime is excluded in principle—criminal prosecution against the suspect or defendant must be terminated[1], the court in judicial proceedings (not only in the preparatory stage) cannot fail to respond to a change in the state’s assessment of a particular act and must, in accordance with procedural rules, respond to the removal of criminal liability for the act. Given that preparatory proceedings provide for the possibility of closing criminal proceedings on this ground, and that Part 7 of Article 284 of the Code of Criminal Procedure of Ukraine explicitly provides, for trial proceedings, only those grounds for rendering an acquittal those provided for in paragraphs 1 and 2 of Part 1 of this article, the court of first instance is entitled, during the trial, to dismiss the criminal proceedings on the basis of paragraph 4 of Part 1 of Article 284 of the Code of Criminal Procedure of Ukraine.

The CPC of Ukraine does not specify to which category of grounds the decriminalization of an act belongs. One should support the view that the loss of a crime’s social danger as a result of decriminalization does not mean the absence of grounds for criminal liability. At the time the act was committed, it constituted a criminal offense and served as a basis for criminal liability; therefore, the decriminalization of the act does not constitute a rehabilitating ground[2]. Indeed, taking into account the provisions of the Law of Ukraine “On the Procedure for Compensating Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational-Investigative Activities, Pretrial Investigation Bodies, the Prosecutor’s Office, and the Court,” in particular the fact that the legislature does not grant a person against whom criminal proceedings have been terminated on this ground the right to compensation for harm caused by criminal prosecution, the legislature classifies this ground as a non-rehabilitating ground[3].

The procedural order for closing criminal proceedings on this ground and the specific scope of proof required are not specified in the Criminal Procedure Code of Ukraine. At the same time, given the non-rehabilitative nature of this ground, it is important to note the logical approach whereby a person against whom a criminal case has been closed due to the decriminalization of the act attributed to them under a new criminal law should be able to exercise their right to judicial protection in court, and the court, in turn, should be able to review and assess the legality and validity of the procedural decisions made in these proceedings, which record the suspicion of a crime against the person based on evidence gathered both during the pretrial investigation and during the trial, and, if facts are established confirming the illegality and groundlessness of the criminal prosecution of the individual, to resolve the issue of rehabilitation, that is, the restoration of the person’s honor and dignity, which were called into question by unlawful suspicion and charges, the restoration of their violated rights, and compensation for the harm caused[4]. The dismissal of proceedings on this ground requires the same thorough, comprehensive, and exhaustive investigation as in any other case; in particular, with regard to the indictment, the trial of such a case must proceed in accordance with a procedure clearly established by law[5]; if, during the trial, the court determines that the act for which the indictment against the individual is pending before the court has been decriminalized, the court must determine: whether a criminal offense actually occurred, and whether the defendant’s conduct meets the specific elements of the criminal offense with which he or she is charged by the pretrial investigation authorities, and directly establish the fact of the decriminalization of the act, including verifying whether the law on the basis of which the punishability of the act was removed has entered into force[6].

Given that the decriminalization of an act is a non-rehabilitative ground for dismissing criminal proceedings, and therefore its application effectively confirms the person’s involvement in committing a criminally punishable act, it may be applied only if it is proven in court that is, it has been established by evidence that the person committed the act and that criminal liability for that act has been abolished.

As noted above, the Code of Criminal Procedure of Ukraine does not specify the procedural details for applying paragraph 4 of Part 1 of Article 284 of the Code of Criminal Procedure of Ukraine, particularly in situations where the defendant insists during a court hearing on the issuance of an acquittal. In this case, the principle of analogy of law must be applied, guided by Article 8 and Part 6 of Article 9 of the CPC of Ukraine. Such legal relationships are governed by Part 8 of Article 284 of the CPC of Ukraine, which provides that the termination of criminal proceedings or the rendering of a judgment on the grounds specified in paragraph 1 of Part 2 of this article (i.e., in connection with the exemption of a person from criminal liability), is not permitted if the suspect or defendant objects to it. In this case, the criminal proceedings continue in accordance with the general procedure provided for by this Code. Given that the exemption of a person from criminal liability is also a non-rehabilitative ground, these provisions are relevant for application by analogy and in the context of Article 284, Part 1, Paragraph 4 of the Criminal Procedure Code of Ukraine. It should be noted that legal doctrine recognizes the logical soundness of this approach to resolving this issue. Thus, S.V. Tomyn notes that if the defendant objects to the dismissal of criminal proceedings due to the adoption of a new criminal law that decriminalizes and removes the punishability of the act with which he is charged, the court is obligated to examine, during a court hearing on the merits, the arguments presented by the defendant and to assess the legality and validity of the suspicion raised regarding the act attributed to him, and, accordingly, decide whether there are grounds for applying the rehabilitation procedure, which in any case must include the illegality of the initiation of criminal proceedings, the illegality of the suspicion, the indictment, or the illegality of the bill of indictment[7]. H.M. Pavich believes that if a motion has been filed regarding the need for the defendant’s rehabilitation, such dismissal is possible only at the trial stage, as a result of which the court must determine: whether a criminal offense took place, whether the defendant’s actions constitute the specific elements of the criminal offense with which he or she is charged by the pretrial investigation authorities, and directly establish the fact of the decriminalization of the act, including verifying whether the law on the basis of which the punishability of the act was removed has entered into force.  If the court determines that no criminal offense occurred or that the accused’s actions do not constitute the elements of a criminal offense, the court issues an acquittal, which entitles the person to so-called rehabilitation[8]. Thus, if the defendant insists during the court hearing on the issuance of an acquittal, we believe that the court is not entitled to dismiss the criminal proceedings on the grounds provided for in paragraph 4 of Part 1 of Article 284 of the Code of Criminal Procedure of Ukraine, and must continue the proceedings in accordance with the general procedure and render a verdict.

Consequently, the problematic aspects of applying paragraph 4 of Part 1 of Article 284 of the Code of Criminal Procedure of Ukraine outlined above indicate an urgent need to amend and supplement the Code of Criminal Procedure of Ukraine in order to resolve the aforementioned issues.

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[1] Tomyn, S.V. Implementation of Certain Principles of Criminal Proceedings in Cases Where Proceedings Are Dismissed Due to the Decriminalization of an Act. Prykarpats’kyi Yurydychnyi Visnyk. 2014. No. 2 (5). p. 311.

[2] Kret, G. R. Theoretical, Legal, and Applied Aspects of the Dismissal of Criminal Cases in Court: Abstract of a dissertation … Candidate of Legal Sciences: 12.00.09/G. R. Kret; advisor V. V. Korol; National University “Odessa Law Academy.” – Odessa, 2010. URL: http://dspace.onua.edu.ua/bitstream/handle/11300/1507/%d0%9a%d1%80%d0%b5%d1%82.pdf?sequence=1&isAllowed=y

[3] Pavich, H. M. Termination of Criminal Proceedings by a Court of First Instance: Ph.D. thesis in Law, specialty: 12.00.09 – Criminal Procedure and Criminalistics; Forensic Examination; Operational-Investigative Activities. Lviv: Ivan Franko National University of Lviv, 2018. p. 94.

[4] Tomyn, S. V. Implementation of Certain Principles of Criminal Proceedings in Cases Where They Are Dismissed Due to the Decriminalization of an Act. Prykarpattia Law Review. 2014. Issue 2(5). p. 313.

[5] Pavich, H. M. Dismissal of Criminal Proceedings by a Court of First Instance: Ph.D. thesis in Law, specialty: 12.00.09 – Criminal Procedure and Criminalistics; Forensic Examination; Operational-Investigative Activities. Lviv: Ivan Franko National University of Lviv, 2018. p. 152.

[6] Pavich, H. M. Termination of Criminal Proceedings by a Court of First Instance: Ph.D. thesis in Law, specialization: 12.00.09 – Criminal Procedure and Criminalistics; Forensic Examination; Operational-Investigative Activities. Lviv: Ivan Franko National University of Lviv, 2018. p. 261.

[7] Tomyn, S. V. Implementation of Certain Principles of Criminal Proceedings in Cases Where They Are Dismissed Due to the Decriminalization of an Act. Prykarpattia Law Review. Collection of Scientific Papers. – Ivano-Frankivsk, 2014. Issue 2(5). p. 314.

[8] Pavich, H. M. Dismissal of Criminal Proceedings by a Court of First Instance: Ph.D. thesis in Law, specialty: 12.00.09 – Criminal Procedure and Criminalistics; Forensic Examination; Operational-Investigative Activities. Lviv: I. Franko National University of Lviv, 2018. pp. 177–178.