The retirement age and the results of the pre-trial report of the probation body may not be sufficient grounds for discharge on probation of those convicted of crimes against the foundations of national security of Ukraine - the Supreme Court

The Criminal Cassation Court within the Supreme Court dismissed the cassation appeals in the interests of two convicted persons found guilty of intentional acts aimed at changing the borders of the territory and the state border of Ukraine in violation of the rules of procedure established by the Constitution of Ukraine, by a group of persons by prior agreement (part 2, Article 110 of the Criminal Code of Ukraine).

According to the verdict, in spring of 2014 in a village of Donetsk oblast, the persons organized the work of an electoral commission and directed its activities on holding of an illegal referendum aimed at the creation of the "DPR" ("Donetsk People's Republic"). The convicted persons were discharged from serving a probation sentence (Article 75 of the Criminal Code of Ukraine), they were imposed on with relevant obligations under Art. 76 of the Criminal Code of Ukraine.

The appeal court cancelled the sentence of the local court in terms of the imposed punishment and issued its verdict, sentencing each person to 5 years of imprisonment.

As stated in the resolution of the Cassation Court, the arguments of the convicted person about the absence in her actions of the subjective aspect of the incriminated crime with reference to the decision of the City Council to hold a referendum are not valid. According to Articles 72, 73, 92 of the Constitution of Ukraine, alterations to the territory of Ukraine are resolved exclusively by the All-Ukrainian referendum which is designated by the Verkhovna Rada of Ukraine or the President of Ukraine. The organization and procedure for its conduct are determined exclusively by the laws of Ukraine. The state of Ukraine did not make such decisions, which is a well-known fact.

The arguments of the cassation complaints of the convicted person and the defence attorney of another convicted person about the obvious injustice and inconsistency of the sentence imposed on the convicted with the gravity of the criminal offence committed by them and the information characterizing these persons are also unfounded.

Thus, the appeal court pointed out that the persons committed a grave offence against the foundations of national security of Ukraine, which by its nature poses a particularly great public danger to the state and its citizens, at their place of residence they were positively characterized, they were persons of retirement age. No mitigating circumstances have been established.

With regard to the allegation that the court did not take into account the pre-trial report of the probation body and the old age of the convicts, the mere fact of retirement age and the pre-trial report of the probation body cannot be sufficient grounds for discharge on probation, as this did not prevent them from committing a grave offence, and therefore in no way diminishes its public danger.

In view of the foregoing, the appeal court came to a reasonable conclusion that the application of Art. 75 of the Criminal Code of Ukraine to the persons should be recognized as an incorrect application of the law of Ukraine on criminal liability, and sentenced them according to the sanction provided for in part 2, Art. 110 of the Criminal Code of Ukraine, without discharge from its serving, which would facilitate their correction and prevent the commission of new crimes.

In the opinion of the cassation court, the punishment imposed by the appeal court is fair, necessary and sufficient to correct the convicted persons, in accordance with the purpose of the punishment, commensurate with the nature of the committed act and its consequences.

Resolution of the Criminal Cassation Court within the Supreme Court in case No. 236/1409/17 (proceedings No. 51-3798km20) – https://reyestr.court.gov.ua/Review/95616588.