When Sentencing a Person for Corruption and Non-Corruption Offences, the Court May Not Release Him/Her from Serving a Probation Sentence - the Supreme Court

The commission by a person of a corruption criminal offence makes it impossible to release him/her from serving a probation sentence (Art. 75 of the Criminal Code of Ukraine) even in the case of imposing a final sentence for a combination of criminal offences one of which is non-corruption. Therefore, the exemption of a person from serving a final sentence determined for a combination of criminal offences, which included both non-corruption and corruption criminal offences, on the basis of Art. 75 of the Criminal Code of Ukraine is an incorrect application of the law of Ukraine on criminal liability.

This is stated in the resolution of the Criminal Cassation Court within the Supreme Court, which considered the prosecutor's cassation appeal against the appellate court's ruling to uphold the verdict of the local court against a person convicted of theft of property (part 3 of Article 185 of the Criminal Code of Ukraine) and a proposal of illegal benefit to a police officer (part 1 of Article 369 of the Criminal Code of Ukraine). The court sentenced the convicted person to imprisonment for a period of 4 years, and in accordance with Art. 75 of the Criminal Code of Ukraine released him from serving a probation sentence with the establishment of a probationary period of 3 years and imposing on him the duties provided for in parts 1, 2 of Art. 76 of this Code.

In his cassation appeal, the prosecutor noted that the appellate court had unreasonably upheld the local court's verdict, as one of the crimes committed by the accused was corruption-related.

The Criminal Cassation Court within the Supreme Court cancelled the ruling of the appellate court and appointed a new hearing in the court of appeal, indicating the following.

Part 1 of Art. 75 of the Criminal Code of Ukraine stipulates that release from serving a probation sentence is not applied to a corruption criminal offence. According to the footnote to Art. 45 of the Criminal Code of Ukraine a criminal offence under Art. 369 of the Criminal Code of Ukraine, committed by the accused, is a corruption criminal offence.

Thus, by exempting a person from serving a final sentence determined for a combination of crimes, which also included a corruption criminal offence (part 1 of Article 369 of the Criminal Code of Ukraine), on the basis of Art. 75 of the Criminal Code of Ukraine, the court of first instance incorrectly applied the law of Ukraine on criminal liability, namely, it applied a law that was not subject to application. The appellate court, reviewing the sentence on appeal, did not pay attention to these violations of substantive law, did not properly check the arguments of the prosecutor's appeal, which according to Art. 419 of the Criminal Procedural Code of Ukraine constitutes a significant violation of the requirements of the criminal procedural law, since it prevented the court from adopting a lawful and reasonable judgment, and reached an unreasonable conclusion to leave the judgment of the first instance court in respect of the person unchanged.

Resolution of the Criminal Cassation Court within the Supreme Court in case No. 234/1940/20 (proceedings No. 51-1866км21) – https://reyestr.court.gov.ua/Review/99926673.

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