Providing a passport with unofficial state border stamps to obtain a permanent residence permit is the use of a knowingly forged document – the Supreme Court

The Criminal Cassation Court within the Supreme Court dismissed the defence’s cassation appeal against the verdict of the local court and the ruling of the appeal court in criminal proceedings against a person accused of using a knowingly forged document (part 4, Article 358 of the Criminal Code of Ukraine).

According to the verdict, upheld by the appeal court, from spring 2012 till summer 2015 a person, without leaving the territory of Ukraine, in a manner unspecified by pre-trial investigation, obtained Ukrainian state border stamps in his/her passport of a citizen of the Republic of Azerbaijan.

Later, in order to obtain the permit for permanent residence on the territory of Ukraine, the person submitted his/her passport together with an application for an immigration permit and other documents to one of the territorial bodies of the State Migration Service of Ukraine, being aware that Ukrainian state border stamps received earlier had not been issued by a state body in accordance with the procedure established by law. Following consideration of the application, the person had obtained an immigration permit in Ukraine and later was granted a permanent residence permit in Ukraine for an indefinite term. 

In his cassation appeal, the defence attorney stated, inter alia, that since the person’s passport was not a forged document, but an official one according to which a permanent residence permit had been granted in Ukraine, there is no actus reus of a criminal offence in the person's actions according to part 4, Art. 358 of the Criminal Code of Ukraine.

As stated in the resolution of the Criminal Cassation Court within the Supreme Court, the defence attorney's arguments that Ukrainian state border stamps, which had not been made by the state body of Ukraine in the manner prescribed by current legislation, did not distort the content of the passport, nor gave the person any rights or relieved him/her from any duties, are unreasonable.

Objectively, the use is to submit a forged document to enterprises, institutions or organizations, regardless of the form of ownership or presentation thereof. The offence is deemed to be over from the time the forged document is submitted (provided), regardless of whether the perpetrator has achieved the intended purpose, that is, the purpose and motive are not mandatory elements of the offence.

As can be seen from the materials of the proceedings, the person provided and used an official document (a passport of a citizen of the Republic of Azerbaijan) to acquire certain subjective rights. In doing so, he/she knew about the unofficial state border stamps in his/her passport and did not deny this fact in his/her written explanations to the court as part of the debate.

Thus, the body of evidence gathered by the court confirms that the person used an official document with false information in it.

Resolution of the Criminal Cassation Court within the Supreme Court in case No. 607/8076/19 (proceedings No. 51-2814km20) - https://reyestr.court.gov.ua/Review/95907571.