Mere desire to take part in military actions in defence of Ukraine is not enough to be released from serving a sentence with probation - Supreme Court

During the cassation review of the criminal proceedings for violation of traffic safety rules, which resulted in the death of the victim, the convicted person did not provide any data on his enlistment in the Armed Forces of Ukraine or other military formations, which would confirm the sincerity and reality of his intention to participate in military operations for the defence of Ukraine, as he and his defence lawyer had stated in the courts of previous instances. And the convict's desire alone, without documentary evidence, is not enough to release him from serving a sentence with probation.

This was the conclusion reached by the Criminal Cassation Court of the Supreme Court, which upheld the prosecutor's appeal, pointing out, in particular, that the court of appeal had failed to give adequate reasons for its decision to reform the offender without isolating him from society.

Thus, in this case, the court of first instance deprived the man of his liberty for a period of 4 years and of the right to drive a vehicle for a period of 3 years for the criminal offence. The court released the defendant on probation in accordance with Article 75 of the Criminal Code of Ukraine. The court of appeal upheld the sentence, arguing, inter alia, that during the appeal proceedings the defendant had expressed a desire to take part in military operations to defend Ukraine and had joined the ranks of a volunteer unit.

The Criminal Cassation Court of the Supreme Court overturned the decision of the court of appeal and ordered a retrial in the court of appeal, stating that the court of appeal had not taken into account all the data on the person and the circumstances of the offence committed under the influence of drugs when deciding whether the person could be released from serving a sentence on probation.

The court noted that the case file contained only a certificate signed by the commander of the Ukrainian Volunteer Corps on the convict's voluntary participation and membership in the said formation. However, it was disbanded and transformed into a separate mechanised brigade within the Armed Forces of Ukraine. The materials of the criminal proceedings do not contain any data on the convict's service in such a reformatted formation.

The Resolution of the Criminal Cassation Court of the Supreme Court of 3 August 2013 in case No. 754/9758/20 (proceedings No. 51-2437км22) - https://reyestr.court.gov.ua/Review/112693042.

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