The Statement of Factual Circumstances of a Criminal Offence in the Indictment is Important for the Implementation of the Suspect's Right to Defence - the Supreme Court

Having considered the cassation appeal of the defence attorney of a person convicted of intended minor bodily injuries that had caused a short-term health disorder of the victim (part 2, Article 125 of the Criminal Code of Ukraine), the Criminal Cassation Court within the Supreme Court cancelled the court decisions and appointed a new trial at the court of first instance.

In the cassation appeal, the defence attorney, in particular, noted that in the criminal proceedings against the person there were two indictments approved by the same prosecutor, but different in content, while there had been no changes of the charge in the trial, and the defence had only been informed of one of the indictments.

As a result of the cassation examination of the materials of criminal proceedings, the Criminal Cassation Court within the Supreme Court found that the statement of two circumstances to be proved – the place of commission of the criminal offence and the motive for its commission (paragraphs 1, 2, part 1 of Art. 91 of the Criminal Procedural Code of Ukraine), significantly differ in the notice of suspicion and the indictment served on the accused and the indictment sent to court.

The significance of the indictment as a procedural decision of the prosecution lies in the fact that it formalizes the legal position of the prosecution, initiates the trial and thereby opens the person access to justice.

The statement of the factual circumstances of a criminal offence which the prosecutor considers established, the legal qualification of the criminal offence with reference to the provisions of the law and articles (parts of article) of the law of Ukraine on criminal liability, and the wording of the charge (para. 5, part 2, Art. 291 of the Criminal Procedural Code of Ukraine), in fact, constitute the entire indictment.

A reflection of the factual circumstances of a criminal offence is important not only to the reasoning of the conclusions of the investigator or prosecutor, but also to the examination of the circumstances of the committed criminal offence in court, as well as to the realization of the suspect’s right to defence.

Whereas the motive for the commission of the offence does not affect the correctness of its classification, the lack of information on the place of commission of a criminal offence prevented the defence from expressing its opinion on the correctness of the definition of territorial jurisdiction, and consequently from ensuring that the court hearing the case was a court established by law, as required by part 1, Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Despite the fact that the current Criminal Procedural Code of Ukraine does not provide for the consequences of inconsistencies in the statement of factual circumstances of the criminal offence in the notice of suspicion and indictment, and even more so in the indictments served on the accused and sent to court, established case law shows that cases when the accusation set forth in the indictment does not coincide with the statement of factual data in the notice of suspicion, must be recognized as significant violations of the requirements of the Criminal Procedural Code of Ukraine.

With regard to the criminal proceedings in question, the indictment submitted to the court is not identical to the indictment served on the accused and is substantially different from the notice of suspicion. In fact, this led to a situation where during the trial the person was misinformed about the substance and nature of the accusation, which violates the basic international standard enshrined in paragraph "a", part 3, Art. 6 of the Convention which provides for the right of a person to be immediately and thoroughly informed in a language he or she understands about the nature and causes of the accusation, and calls into question the legitimacy of the accusation.

Resolution of the Criminal Cassation Court within the Supreme Court in case No 295/12923/19 (proceedings No 51-207km21) – https://reyestr.court.gov.ua/Review/96545149.