RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of June 4, 2010 No. 7

About practice of application by courts of the penal legislation about frequency, set and recurrence of crimes and their consequence in law

Studying of practice of application by courts of the legislation on frequency, set and recurrence of crimes and demonstrates to their right effects that courts generally correctly apply provisions of Articles 32 - 35 Criminal codes of Ukraine (further - UK) in case of qualification of crimes, assignment of punishment, release from criminal liability and from punishment. At the same time, from materials of generalization of court practice it is visible that separate courts make mistakes in application of these regulations of UK, differently determine ratio of these regulations among themselves and with other provisions UK.

For the purpose of ensuring identical application of the specified legislation by consideration of criminal cases the Plenum of the Supreme Court of Ukraine DECIDES to make to courts such explanations:

1. Draw the attention of judges that, resolving issue of availability or absence in actions of person of frequency, set, recurrence of crimes and of their consequence in law, it is necessary to be guided first of all by provisions of Articles 32 - 35 UK, and also to mean that other provisions UK, in particular those which are provided by Articles 4, of 5, of 9, 13 - 17, 29 - 31, 44 - 49, 88 - 91, 106, 108, Items 9, of 10, of 13, of the 17th Section II of Final and transitional provisions UK, and also relevant provisions of the existing international treaties which consent to be bound is provided by the Verkhovna Rada of Ukraine also can influence the solution of ukazannykhvopros.

2. UK provided in the Section VII of the General part frequency, set and recurrence of crimes are separate forms of plurality of crimes, each of which has specific criminal and legal content. At the same time this content is determined in UK thus some of these forms do not exclude each other. Therefore committing by person of two or more crimes can under the corresponding conditions form set and frequency (for example, making of robbery by person who committed theft earlier), frequency and recurrence (for example, making of racketing by person which has criminal record for fraud).

3. On contents of article 32 UK frequency of crimes non-simultaneous making by the same person of two or more crimes if they is recognized:

1) are provided by the same Article or part of Article of the Special part of UK;

2) are provided by different Articles of the Special part of UK and in Article under which the following crime is qualified, making of the previous crime is specified as the qualifying sign.

At the same time for frequency does not matter whether person was condemned for earlier committed crime.

Does not form frequency earlier committed crime for which person was exempted from criminal liability on the bases established by the law the crime for which criminal record was extinguished or removed is condemned without assignment of punishment or with release from punishment, and also.

Stages of the committed crimes, and also making of crimes solely or in partnership their made repeatedly do not influence recognition.

In the presence of the specified conditions, and also taking into account Item 17 of the Section II of Final and transitional provisions UK also crimes which are qualified on UK of 1960 corresponding Articles (parts of Articles) can form frequency.

4. In limits of frequency of crimes their non-simultaneous making means that the initial moments of making of everyone тз crimes do not match on temporary indicators. With respect thereto crimes, one of which was, can form frequency it is made when other crime already began, but did not end yet (for example, after the beginning of making of fraud, but before its termination person commits theft). In that case repeatedly the crime begun later is considered committed.

5. If acts, different in the content are provided in one Article (part of Article) of the Special part of UK (Article 263, of 307, 309 UK and so forth), their making in different time does not form frequency of crimes in cases when such acts were covered by single intention of person. In these cases the commited by person acts become elements of one crime (for example, illegal manufacture, acquisition of drugs and subsequent their storage and transportation; illegal acquisition of firearms and ammunition and subsequent their storage and carrying).

6. It is necessary to distinguish the continued crime which according to part two of article 32 UK consists of two or more identical acts combined by single criminal intent from frequency of crimes. Consolidation of identical acts by single criminal intent means what to making of the first of number of identical acts person realizes that for realization of its criminal intent it is necessary to make several such acts, each of which is directed to realization of this intention. Such acts do not form frequency as each of them becomes element of single (single) crime and rather any other of these acts cannot be separate (independent) crime, and in case of frequency of identical crimes each of them has the subjective party, in particular independent intention which arises every time before making of separate crime.

If the actus reus, recognized continued, provides certain quantitative indices which influence its qualification (the extent of stolen property, the extent of damage suffered and so forth), then in case of its qualification the total amount of such indicators connected with each of the commited by person acts which form the continued crime and in case of determination of their size is considered it is necessary to proceed from quantity of tax-free minima of the income of the citizens calculated for every period of making of the continued crime separately.

In case of frequency of crimes the corresponding quantitative indices are calculated for each crime separately; the size of these indicators is determined according to the procedure, established for the period of making of each crime, and their total amount does not influence qualification of crimes.

7. Provided in the relevant articles (parts of Articles) of the Special part of UK of crime execution repeatedly or person who committed the corresponding crime earlier is the qualifying sign of certain crime. Therefore if person was not condemned for making of the previous crime (several previous crimes), each of crimes which form frequency shall be subject of independent criminal legal treatment.

At the same time, if the committed crimes, except frequency, form also set, they according to part two of article 33 UK shall receive separate qualification (for example, theft without the qualifying signs and the theft committed repeatedly or the theft combined with penetration into the dwelling). If crimes which form frequency, answer the same actus reus (for example, three thefts combined with penetration into the dwelling, five robberies committed by organized group, and so forth), their qualification is performed under one Article or part of Article of the Special part of UK. In such cases frequency of crimes shall be specified in procedural documents which concern accusation of person as the qualifying sign of the corresponding crimes.

8. According to part one of article 33 UK cumulative offenses committing by person of two or more crimes provided by different articles or different parts of one Article of the Special part of this Code of which it was not condemned for one is recognized.

Also the crimes provided by the same Article or part of Article of the Special part of UK can form set if:

1) they are made not at the same time and for the following crime new edition of the relevant article or part of Article of the Special part of UK provides actus reus, new on the content;

2) they are made not at the same time and for the following crime new edition of the relevant article or part of Article of the Special part of UK strengthens criminal liability;

3) the committed crimes have different stages;

4) the finished attempted crime and unfinished attempted crime was made;

5) person committed one or several crimes independently (solely) or was his contractor (collaborator), and (others) made another as the organizer, the instigator or the helper;

6) person committed one crime as the organizer, the instigator or the helper, and when making another was other accomplice.

At the same time the crime for which person was exempted from criminal liability on the bases established by the law cannot be set element.

In the presence of the specified conditions, and also taking into account Item 17 of the Section II of Final and transitional provisions UK also crimes which are qualified by the relevant articles (parts of Articles) of UK 1960 can form set.

9. On content of part two of article 33 UK of crime which form set are subject to separate qualification. Taking into account provisions of part one of article 33 UK this rule is applied, in particular, and when person committed several identical crimes (crimes of one type) which form frequency, but the first of them has no the qualifying signs. In such cases the first crime is qualified by part one of the relevant article of the Special part of UK, and one or several following in the absence of other qualifying signs - part two of this Article on the basis of its making repeatedly.

10. If act which separate manifestations in combination with the corresponding circumstances form structure of other crime, then such manifestations, as a rule, is provided in actus reus shall receive separate qualification. So, on cumulative offenses the official needs to qualify use of obviously forgery document or unauthorized assignment of powers of authority or rank in case of fraud, deliberate destruction, damage or concealment of official documents in case of concealment of crime and so forth.

At the same time separate of such acts are considered by the legislator in disposition of the relevant article (part of Article) of the Special part of UK. In such cases these acts of separate qualification do not require (for example, the threat of murder when making rape or robbery is covered by the corresponding parts of articles 152 and 187 UK).

11. If it is provided in actus reus act which in combination with other circumstances always forms structure of other crime (for example, content of act consists in application of physical abuse when making certain crime), then issue of its criminal legal treatment it is necessary to resolve taking into account as far as such act, and also taking into account contents of sanctions of the relevant articles (parts of Articles) of the Special part of UK is covered by structure of this crime.

In cases when the structure of certain crime covers the corresponding act made along with this crime and the sanction of Article (part of Article) of the Special part of UK more stiff maximum primary punishment, than for the corresponding act is established for this crime, such act does not form cumulative offenses and does not require separate qualification (for example, causing deliberate bodily harm of average weight when making robbery or racketing is covered by the corresponding part of Article 187 or part three of article 189 UK and separately by the corresponding part of article 122 of this Code it is not qualified).

At the same time, when such act oversteps the bounds of structure of certain crime, it shall be qualified separately and forms cumulative offenses (for example, causing deliberate heavy bodily harm which entailed the death of the victim, when making robbery or racketing is qualified on part four of Article 187 or part four of Article 189 and part two of article 121 UK). In these cases contents of sanctions of the relevant articles (parts of Articles) of the Special part of UK in attention are not accepted.

12. In case Article or part of Article of the Special part of UK provides making of other crime in actus reus, without specifying specific signs of the last (Item 9 parts two of Article 115, Article part one 255, article 257 UK and so forth), committing by person of such crimes should be considered as their set with separate qualification of each of crimes.

Under such circumstances sets do not form only crimes which answer the same actus reus (for example, committing by person of two premeditated murders under circumstances which aggravate responsibility, one of which is made with the purpose to hide another).

If for certain act responsibility of general is provided and special (on subject to encroachment, the subject of crime and so forth) regulations of the Special part of UK, such act is qualified, as a rule, on special regulation of the Special part of UK and additional qualification on general regulation does not require.

13. In cases when Article or part of Article of the Special part of UK provides causing by the corresponding act of death of the person or other heavy (especially heavy) effects, causing such effects because of imprudence is covered by this article or part of article and separate (additional) qualification under other Articles of the Special part of UK does not require. So, careless causing death or heavy bodily harm when taking hostages, deliberate destruction or damage of property, exceeding of the power or office powers is qualified respectively on Article part two 147, of Article part two 194, of part three of article 365 UK and separate qualification by the corresponding part of Article 119 or to article 128 UK does not require.

In case Article or part of Article of the Special part of UK does not provide causing by the corresponding act of death of the person or other heavy (especially heavy) effects, causing such effects on imprudence under certain conditions forms cumulative offenses and shall be qualified separately (for example, causing such effects when making the crimes provided by Articles 142, 144 and 228 UK).

14. If Article or part of Article of the Special part of UK directly provides causing by the corresponding act of death of one or several persons (Article part three 110, Article part two 194, part three of article 314 UK) or such death is manifestation of especially heavy or heavy effects provided by it, deliberate causing in case of death made such crime one or to several victims is not covered by this article or part of article. Such causing needs separate (additional) qualification by the corresponding part of Article 115, and in the presence of necessary conditions - under Articles 112, of 348, of 379, of 400, Article part four 404, article 443 UK.

15. According to article 34 UK recurrence of crimes making of new deliberate crime-faced which has criminal record for deliberate crime is recognized. As according to part one of article 88 UK person is recognized having criminal record, from day of the introduction in legal force of conviction and before repayment or removal of criminal record, making during this period of new deliberate crime forms their recurrence with the previous deliberate crime.

If after committing by person of new crime there were circumstances which eliminate the stipulated in Article 34 UK bases for recognition of the acts committed by it with recurrence of crimes (for example, the conviction for the previous crime (crimes) was cancelled as illegal and the face was rehabilitated; the conviction for previous or the following crime was changed and person with respect thereto it is considered such which has criminal record for careless crime; the new law cancelled crime of act and so forth), courts should recognize that the recurrence of crimes in behavior of such person was absent. With respect thereto all effects, adverse for person, which arose owing to recognition of the acts committed by it recurrence of crimes lose the legal value.

16. The recurrence of crimes is provided in individual clauses of the Special part of UK as kind of frequency of crimes and, except such qualifying signs as crime execution repeatedly or its committing by person which committed the corresponding crime earlier can be expressed also by such qualifying sign as crime execution by person previously convicted for the corresponding crime.

17. In case of the solution of question of availability of recurrence of crimes or frequency of crimes when such frequency is formed by crime for which making the perpetrator was condemned earlier, courts need to check whether crime and punishability of the previous act is eliminated with the law, whether it is extinguished or the criminal record for this crime is not removed. For this purpose in case there shall be data on condemnation of such person, the penalty imposed for this crime and its serving, and in case of release from serving sentence with testing based on article 75 UK and making of new crime behind borders of the probation period established by court - the judgment made according to requirements of article 78 UK. Resolving issue of availability or absence at such person of criminal record for earlier committed crime, courts shall consider provisions of Articles 88, of 89, of 90, 108 UK and the explanations given in the resolution of the Plenum of the Supreme Court of Ukraine of December 26, 2003 No. 16 "About practice of application by courts of Ukraine legislations on repayment and removal of criminal record".

18. According to Articles 45 - 48, part one of article 97 UK one of conditions of the kinds of release from criminal liability provided by them is committing by person of crime of the corresponding severity for the first time. Therefore person in whose actions frequency, real set, recurrence of crimes seems or which has the outstanding or not removed criminal record for previous including careless crime, it is impossible to exempt from criminal liability based on these Articles.

At the same time cannot be barrier to release from criminal liability based on Articles 45 - 48, parts one of article 97 UK making by one act of several crimes of the corresponding severity (for example, causing by one act of deliberate slight injury and careless heavy bodily harm does not exclude release from criminal liability based on articles 45 and 46 UK, and causing in case of hooliganism of deliberate bodily harm of average weight - based on articles 47 and 48 UK).

19. The Item of 1 part one of article 67 UK provides as circumstance which aggravates punishment, crime execution repeatedly and recurrence of crimes. As any special cautions concerning determination of frequency and recurrence of crimes in this Article are absent, in case of establishment of content of this circumstance as it which aggravates punishment it is necessary to be guided by articles 32 and 34 UK.

If the recurrence of crimes forms at the same time and the court cannot consider their frequency which is provided in Article or part of Article of the Special part of UK as essential element of offense which influences its qualification then on content of part four of article 67 UK both frequency, and recurrence of crimes once again in case of assignment of punishment as circumstance which it aggravates.

If the cumulative offenses for one of which the recurrence forms frequency which is provided as sign of this crime which influences its qualification take place, and for another the recurrence of crimes of such sign does not form, then in case of assignment of punishment for other crime the court can consider recurrence of crimes as circumstance which aggravates punishment. At the same time in motivation part of sentence the court shall note for what specifically the crime is imposed penalty taking into account this circumstance.

20. In case of assignment of punishment on cumulative offenses and on cumulative sentences to courts it is necessary to consider along with the explanations specified in this resolution explanations which contain in the resolution of the Plenum of the Supreme Court of Ukraine of October 24, 2003 No. 7 "About practice of appointment of criminal penalty as courts".

21. The Section XI of the General part of UK does not provide procedure and features of assignment of punishment in case of frequency of crimes, however courts in the presence of this form of plurality of crimes shall consider relevant provisions of Articles 65 - 72 these Codes.

If person was not condemned for the committed crimes also they, except frequency, form also cumulative offenses, assignment of punishment for these crimes shall be performed by the rules provided by articles 70 and 72 UK.

By the rules provided by part four of article 70 UK penalty in cases is imposed if after adjudgement on case it is determined that the convict is guilty also of other crime committed by it before removal of the previous sentence. In such cases the crime for which this person is condemned by the previous sentence does not form recurrence concerning the crime committed before removal of the previous sentence, but under the corresponding conditions can form frequency of crimes.

In cases when frequency or recurrence of crimes is cumulative sentences element, penalty for them is imposed by the rules provided by articles 71 and 72 UK.

22. If consequence in law of frequency, set and recurrence of crimes contact the court verdict of foreign state, courts shall be guided by article 9 UK, other provisions UK, and also provisions of international treaties of Ukraine which consent to be bound is provided by the Verkhovna Rada of Ukraine.

23. Recognize invalid resolutions of the Plenum of the Supreme Court of Ukraine of June 29, 1984 as No. 5 "About practice of application by courts of Ukraine legislations on returns to crime" (with the changes made according to resolutions of June 4, 1993 No. 3, of December 3, 1997 No. 12) and of October 12, 1989 No. 7 "About accomplishment by courts of Ukraine of the legislation on cases on returns to crime and accomplishment of resolutions of the Plenum of the Supreme Court of Ukraine on this matter" (with the changes made according to resolutions of June 4, 1993 No. 3, of January 13, 1995 No. 3 and of December 3, 1997 No. 12).

 

Chairman of the Supreme Court of Ukraine

V. V. Onopenko

Secretary Plenuma of the Supreme Court of Ukraine

Yu.L.Senin

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