SC CCC Joint Chamber determines how Article 70(4) of the Criminal Code of Ukraine applies if a person receives a real sentence in one judgment and released on probation in the next judgment, and the court finds grounds for applying Article 75 of the Code

If a person who has committed a criminal offence has been sentenced by a court to serve an actual sentence and it is subsequently established that he/she is also guilty of other criminal offences for which a new sentence is imposed with the application of probation in accordance with Article 75 of the Criminal Code of Ukraine, the provisions of part 4, Article 70 of the Criminal Code of Ukraine on the imposition of a final sentence shall not apply and each sentence - the previous one, under which the person must actually serve the sentence, and the new one, under which he/she is released from probation - shall be executed independently.

The Joint Chamber of the Criminal Cassation Court of the Supreme Court came to this conclusion after considering the prosecutor's cassation appeal against the decision of the court of appeal, which upheld the verdict of the first instance court of 16 March 2023. In accordance with this verdict, the previously convicted person was sentenced to 5 years' imprisonment without confiscation of property under part 4 of Article 70 of the Criminal Code of Ukraine on the basis of the combination of crimes by absorbing a less severe sentence imposed by a local court verdict of 7 May 2021 with a more severe sentence imposed by a verdict of 16 March 2023. Under Article 75 of the Criminal Code of Ukraine, the person was released from serving the sentence on probation, a probation period of 2 years was set and obligations were imposed in accordance with the provisions of Article 76 of the Criminal Code of Ukraine.

The Joint Chamber of the Criminal Cassation Court has repeatedly considered the issue of the application (non-application) of the provisions of part 4, Article 70 of the Criminal Code of Ukraine and expressed its position in various situations, but the legal situation that occurred in this criminal proceeding was not the subject of its consideration and no relevant conclusions were drawn.

The Joint Chamber of the Criminal Cassation Court noted that the provisions of Article 70 of the Criminal Code of Ukraine define the grounds, procedure and limits of sentencing for a number of crimes. At the same time, when imposing punishment for a number of offences under part 4 of Article 70 of the Criminal Code of Ukraine, the court is not entitled to change the punishment imposed by the previous (first) sentence for a separate offence. Nor should it reimpose (duplicate) this punishment in a new (second) sentence. In this case, there is a legal presumption of the legality and validity of the previous sentence, which the court confirms by applying part 4 of Article 70 of the Criminal Code of Ukraine.

At the same time, the imposition of punishment for a number of criminal offences under part 4, Article 70 of the Criminal Code of Ukraine has a number of peculiarities, one of which is that if a person is sentenced to a real sentence in one judgment and released on probation in the next judgment, the application of the principles of absorption, partial or complete addition of sentences is not allowed. In such circumstances, each sentence is executed independently.

The Resolution of the Joint Chamber of the Criminal Cassation Court of 1 April 2024 in case No. 183/6854/20 (proceedings No. 51-4885кмо23) - https://reyestr.court.gov.ua/Review/118195494.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.