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GENERALIZATION OF APPEAL COURT OF THE CITY OF KIEV

of February 1, 2013

Court practice of assignment of punishment in 2012

The Appeal Court of Kiev in connection with entry into force of the Law "About Modification of Some Legal Acts of Ukraine concerning Humanization of Responsibility for Offences in the field of Economic Activity" carries out generalization of court practice of assignment of punishment in 2012. The document contains the analysis of statistical data on cases which are subject to consideration on regulations of the Code of Administrative Offences, with the changes made by the above-mentioned act and also information concerning features of release from punishment of certain category of persons. Besides, you learn about condition of consideration by courts of cases on crimes in the field of economic activity, the sanction of Articles which changed in connection with adoption of law, and on practice of appeal hearing of cases of this category.

Condition of hearing of cases

During generalization criminal cases about the crimes in the field of economic activity provided by the Art. of the Art. 200, 203-1, 203-2, 204 - 206, 209-1, 212, 212-1, 213, 216, 219, 223-2, 224, 227, 229, 231 - 232-2, 233 Criminal codes, and cases on administrative offenses in the field of economic activity were studied.

By hearing of cases of this category by judges of district courts of Kiev in general regulations of the criminal procedure and criminal law for the purpose of protection of the rights and legitimate interests of persons are correctly applied, penalties were imposed within sanctions of articles of the Criminal Code, taking into account the made changes according to the law.

At the same time there are some questions concerning correctness of assignment of punishment taking into account the changes brought according to the law namely: in case of application of the p. 2 of the Art. 53, p.1 the Art. 65, p.1 Art. 69 of UK (examples are given together with statistical data of district courts of Kiev).

In production of Goloseevsky district court of Kiev in 2012 there were 10 criminal cases concerning crimes of the specified category. Production with the resolution of sentences and resolutions in 9 criminal cases is finished.

In one criminal case the court verdict it is relative Yu.K. condemned according to the p. 3 of Art. 212 of UK, it is cancelled by determination of Appeal Court of Kiev of 09.07.2012, however not on the bases of the wrong assignment of punishment, and because of violation of requirements of Art. 299 of UK by court.

In production of the Dnieper district court of Kiev in 2012 there were 30 criminal cases concerning crimes of the specified category. Production with removal of sentences and resolutions in 23 cases is finished.

So, K.M. is found by sentence of the Dnieper district court of Kiev of 18.07.2012 guilty of crime execution, UK provided p.1 by Art. 203-2, and penalty using Art. 69 of UK in the form of penalty in the amount of 400 tax-free minima of the income of citizens is imposed that constitutes 6800 UAH with confiscation of the gambling equipment.

This sentence in appeal procedure was not disputed.

At the same time in case of assignment of punishment in the form of penalty the court violated requirements p.1 of Art. 69 of UK as according to the changes in p.1 Art. 69 of UK made by the law for crime execution for which primary punishment in the form of penalty of more than 3 thousand tax-free minima of the income of citizens is prescribed the court on the bases provided p.1 by Art. 69 of UK can impose primary punishment in the form of penalty which size can be underestimated no more than by quarter of the lowest limit set in the sanction of Article (the sanction of part of Article) of "Special part" of the Code. In this case in the sanction p.1 Art. 203-2 of UK prescribes mulctary punishment at the rate from 10 thousand to 40 thousand tax-free minima of the income of citizens; that is court, applying Art. 69 of UK, shall impose mulctary punishment at least than 7500 tax-free minima of the income of citizens.

In production of Svyatoshinsky district court of Kiev in 2012 there were 46 criminal cases concerning crimes of the specified category. Production with removal of sentences and resolutions in 34 cases is finished.

So, T.K. is found by the court verdict of 27.04.2012 guilty of crime execution, UK provided p.1 by Art. 203-2, and penalty using Art. 69 of UK in the form of penalty in the amount of 100 tax-free minima with confiscation of the gambling equipment is imposed.

This court verdict in appeal procedure was not disputed.

Together with it in this case the court incorrectly imposed penalty using Art. 69 of UK as according to the changes in p.1 Art. 69 of UK made by the law for crime execution for which primary punishment in the form of penalty of more than 3 thousand tax-free minima is prescribed the court on the bases provided p.1 by Art. 69 of UK can impose primary punishment in the form of penalty which size can be underestimated no more than by quarter of the lowest limit set in the sanction of Article (the sanction of part of Article) of "Special part" of the code. In this case the sanction p.1 Art. 203-2 of UK prescribes mulctary punishment at the rate from 10 thousand to 40 thousand tax-free minima of the income of citizens, that is court, applying Art. 69 of UK, shall impose mulctary punishment at least than 7500 tax-free minima of the income of citizens.

In production of Solomensky district court of Kiev there were 37 criminal cases concerning crimes of this category. Production with the resolution of sentences and resolutions in 17 criminal cases is finished.

In one criminal case the court verdict was cancelled by Appeal Court of Kiev with the resolution of sentence, in the second - is cancelled with the direction of case to the prosecutor for the organization of conducting additional investigation.

So, O.Z. is found by sentence of Solomensky district court of Kiev of 06.08.2012 guilty of crime execution, UK provided p.1 by Art. 203-2, and mulctary punishment in the amount of 10 thousand tax-free minima of the income of citizens without confiscation of the gambling equipment is imposed to it.

The court verdict of the first instance is cancelled by sentence of board of lord justices of appeal of Kiev in 17.12.2012 in connection with violation of requirements of Art. 65 of UK as the court does not impose additional punishment in the form of confiscation of the gambling equipment. The new sentence by which O.Z. according to p.1 Art. 203-2 of UK is imposed mulctary punishment in the amount of 10 thousand tax-free minima of the income of citizens and applies to it additional punishment in the form of confiscation of the gambling equipment as according to the sanction p.1 of Art. 203-2 of UK it is obligatory is decided.

There are no questions

In production of the Darnytsia district court of Kiev in 2012 there were 40 criminal cases concerning crimes of the specified category. Production with removal of sentences and resolutions in 29 criminal cases is finished.

In production of the Desna district court of Kiev in 2012 there were 19 criminal cases concerning crimes of the specified category. Production with removal of sentences and resolutions in 11 cases is finished.

In production of the Obolon district court of Kiev in 2012 there were 15 criminal cases concerning crimes of the specified category. Production with removal of sentences and resolutions in 13 cases is finished.

In production of Pechersk district court of Kiev there were 22 criminal cases concerning crimes of the specified category. Production with the resolution of sentences and resolutions in 18 criminal cases is finished.

In production of the Podolsk district court of Kiev in 2012 there were 32 criminal cases concerning crimes of the specified category. Production with removal of sentences and resolutions in 18 cases is finished.

In production of Shevchenkovsky district court of Kiev in 2012 there were 24 criminal cases concerning crimes of the specified category. Production with removal of sentences and resolutions in 24 cases is finished.

The matters of argument concerning assignment of punishment with taking into account of changes brought according to the law by consideration by these courts of criminal cases of the specified category did not arise.

Practical mistakes

During generalization cases on the administrative offenses in the field of economic activity provided by the Art. of Art. 135-1, 155-2, 162-1 - 162-3, 163, 163-7, 164, 164-15, 164-16, 166-8, 166-14, 166-18, 167, 171-2, 189-3 Administrative Code to which changes according to the law were made were studied.

By hearing of cases of this category by judges of district courts of the capital in general regulations the Administrative Code for the purpose of protection of the rights and legitimate interests of persons when imposing collection according to sanctions of articles Administrative Code taking into account the made changes are correctly applied.

At the same time in practice of purpose of administrative punishments taking into account the made changes according to the law there are shortcomings and mistakes.

In production of Goloseevsky district court of Kiev there were 62 cases on adminpravonarusheniye of the specified category, in 45 of which decisions on imposing of collection in the form of penalty were made, production in 6 cases is closed, 6 - are returned for dooformleniye.

So, N. T. is found by the resolution of Goloseevsky district court of Kiev of 25.06.2012 guilty of making of the offense provided by the p. 4 of Art. 164 the Administrative Code and collection in the form of penalty in the amount of 100 tax-free minima of the income of citizens with confiscation of objects of trade is appointed by it.

27.07.2012 the Appeal Court of Kiev cancelled the specified court order of the first instance, and N. T. is found guilty of making of the adminpravonarusheniye provided by the p. 2 of Art. 164 the Administrative Code and penalty in the form of penalty in the amount of 100 tax-free minima of the income of citizens with confiscation of objects of illegal trading activity is imposed on it.

In production of the Desna district court of Kiev there were 90 cases on administrative offenses of the specified category, in 67 of which decisions on imposing of collection in the form of penalty were made, production in 13 cases is closed, 10 - are returned for dooformleniye.

So, S. A. was found by the court order of 25.05.2012 guilty of making of the administrative offense provided p.1 by Art. 163 the Administrative Code and penalty in the form of penalty in the amount of 170 UAH is imposed on it.

However such judgment does not meet the requirements of the law as the sanction p.1 of Art. 163 the Administrative Code provides collection in the form of penalty in the amount of 200 to 500 tax-free minima of the income of citizens, and the court actually appointed collection in the form of penalty in the amount of 10 tax-free minima of the income of citizens.

In production of Pechersk district court of Kiev there were 90 cases on adminpravonarusheniye of the specified category, in 23 of which decisions on imposing of collection in the form of penalty were made, production in 28 cases is closed, in 39 - materials are returned for dooformleniye.

L.G. is found by the resolution of Pechersk district court of Kiev of 18.07.2012 guilty of making of the administrative offense provided by the p. 3 of Art. 162-1 the Administrative Code and penalty in the form of penalty in the amount of 3 thousand tax-free minima of the income of citizens is imposed on it. At the same time the court noted that the specified amount of penalty constitutes 5100 UAH.

The specified resolution is specified and noted by the court order of appellate instance of 16.08.2012 that the court appointed administrative punishment in the form of 3 thousand tax-free minima of the income of citizens that constitutes 51000 UAH, but not 5100 UAH as it is specified in the court order of the first instance.

In production of Solomensky district court of Kiev there were 96 cases on adminpravonarusheniye of the specified category, in 86 of which decisions on imposing of collection in the form of penalty were made, production in 6 cases is closed, 1 - it is directed to dooformleniye.

So, O.K. is found by the resolution of Solomensky district court of Kiev of 06.04.2012 guilty of making of the offense provided p.1 by Art. 164 the Administrative Code and collection in the form of penalty in the amount of 50 tax-free minima with confiscation of the made products is appointed to it.

The resolution of Appeal Court of Kiev of 04.05.2012 satisfies the petition for appeal of O.K., the resolution of Solomensky district court of Kiev of 06.04.2012 is repealed and specifying about application to O.K. of additional collection in the form of confiscation of the made products is withdrawn from the specified resolution.

In reasons for the decision the Appeal Court noted that O.K. actually enabled only the realization of perfumery and cosmetic products of the known brands without any allowing documents in this connection these goods have other legal nature and cannot be confiscated in that understanding as it is provided by the sanction p.1 Art. 164 the Administrative Code.

In production of Shevchenkovsky district court of Kiev there were 66 cases on adminpravonarusheniye of the specified category, in 58 of which decisions on imposing of collection in the form of penalty were made, production in 8 cases is closed, 1 - it is returned for dooformleniye.

So, V.D. is found by the court order of 28.12.2012 guilty of making of the administrative offense provided p.1 by Art. 164 the Administrative Code and penalty in the form of penalty in the amount of 8 tax-free minima of the income of citizens (136 UAH) is imposed on it.

The court order in appeal procedure was not disputed.

At the same time such judgment does not meet the requirements of the law as the sanction p.1 of Art. 164 the Administrative Code provides collection in the form of penalty in the amount of 20 to 100 tax-free minima with confiscation of the made products, instruments of production, raw materials and money received as a result of making of this administrative offense or without that.

To the five of courts - the five

In production of the Darnytsia district court of Kiev there were 35 cases on administrative offenses of the specified category, in 22 of which decisions on imposing of collection in the form of penalty were made, production in 13 cases is closed.

In production of the Dnieper district court of Kiev there were 107 cases on adminpravonarusheniye of the specified category, in 70 of which decisions on imposing of collection in the form of penalty were made, production in 15 cases is closed, 22 - are returned for dooformleniye.

In production of the Obolon district court of Kiev there were 77 cases on administrative offenses of the specified category, in 46 of which decisions on imposing of collection in the form of penalty were made, production in 3 cases is closed.

In production of the Podolsk district court of Kiev there were 49 cases on administrative offenses of the specified category, in 37 of which decisions on imposing of collection in the form of penalty were made, production in 6 cases is closed, 6 - are returned for dooformleniye.

In production of Svyatoshinsky district court of Kiev there were 78 cases on adminpravonarusheniye of the specified category, in 53 of which decisions on imposing of collection in the form of penalty were made, production in 15 cases is closed, 7 - are returned for dooformleniye.

The matters of argument concerning purpose of penalties taking into account changes brought according to the law by consideration by these courts of cases on administrative offenses of the specified category did not arise.

Appeal consideration

In production of Appeal Court of Kiev in 2012 there were 32 criminal cases concerning crimes of the specified category.

By results of appeal consideration of such cases by Appeal Court of the capital the resolution of the Trial Court in 17 cases is cancelled, in 3 - it is changed, in 12 - it is left without changes.

Only in two cases cancellation of resolution of the Trial Court on the bases wrong application of regulations of the penal statute, with the changes made according to requirements of the law took place. The corresponding examples are given together with statistical data of rather district courts of Kiev.

Except such examples, it should be noted that the sentence of Appeal Court of Kiev of 09.04.2012 cancels sentence of Goloseevsky district court of Kiev of 09.12.2011 concerning A.Sh. condemned according to the p. 3 of Art. 212 of UK regarding purpose of additional punishment.

According to the p. 3 of Art. 212 of UK A.Sh. additional punishment in the form of deprivation of the right to be engaged in business activity for a period of 2 years is imposed. Based on Art. 75 of UK A.Sh. it is exempted from serving of the primary punishment imposed under sentence of district court in the form of 5 years of imprisonment.

The Appeal Court motivated the decision with the fact that, imposing A.Sh. penalty, the Trial Court did not apply to it the obligatory additional punishment prescribed by the sanction of the p. 3 of Art. 212 of UK.

Also the sentence of Appeal Court of Kiev of 17.12.2012 cancels sentence of Solomensky district court of Kiev of 20.12.2012 concerning O.Z. condemned according to p.1 Art. 203-2 of UK in connection with violation of requirements of Art. 65 of UK by Trial Court in case of assignment of punishment. The new sentence by which O.Z. according to p.1 Art. 203-2 of UK is imposed mulctary punishment in the amount of 10000 tax-free minima of the income of citizens and applies to it additional punishment in the form of confiscation of the gambling equipment as according to the sanction p.1 of Art. 203-2 of UK it is obligatory is decided.

In other cases of resolution of the Trial Court changed or cancelled not in connection with the wrong application of regulations of UK, with the changes made according to requirements of the law, and on other bases.

In production of court there were only 15 cases on administrative offenses of the specified category, in 11 of which decisions on cancellation of resolutions and closing of production were made, in 2 cases of resolution of the Trial Court are left without changes.

Only in one case change of resolution of the Trial Court on the bases wrong application of regulations the Administrative Code, with the changes made according to requirements of the above-mentioned law took place.

So, the resolution of Appeal Court of Kiev of 04.05.2012 repeals the resolution of Solomensky district court of Kiev of 06.04.2012 and specifying about application to O.K. of additional collection - confiscation of the made products is withdrawn from the specified resolution.

In reasons for the decision the Appeal Court noted that O.K. actually enabled only the realization of perfumery and cosmetic products of the known brands without any allowing documents in this connection these goods have other legal nature and cannot be confiscated in that understanding as it is provided by the sanction p.1 Art. 164 the Administrative Code.

In other cases of resolution of the Trial Court changed or repealed not in connection with the wrong application of regulations the Administrative Code, with the changes made according to requirements of the law, and on other bases.

In production of district courts of Kiev there were no cases on accusation of persons in making of the crimes provided by the Art. of Art. 209-1, 219, 223-2, 224, of 227, of 229, of 231, of 232-2, 233 UK and also cases on the administrative offenses provided by the Art. of Art. 135-1, 155-2, 162-3, 163-7, 164-15, 166-8, 166-14, 166-18, 167, 171-2, 189-3 Administrative Code.

Isolated case

On analysis results of the materials of cases and data provided by district courts of Kiev concerning practice of assignment of punishment in connection with entry into force of the law it is revealed that only in one case release of person from criminal liability in connection with withdrawal of Art. 203 of UK and decriminalization of criminal action under the specified Article took place, namely:

- the resolution of Shevchenkovsky district court of Kiev of 05.12.2012 criminal case on O.E. and O.K.'s accusation that they were engaged in economic activity which under the law "About Prohibition of Gaming in Ukraine" of 15.05.2009 No. 1334-VI is not permitted, namely: performed the organization and carrying out gamblings on computers in virtual (electronic) casino, that is in crime execution, UK provided by the p. 2 of the Art. 28, p.1 Art. 203, it is closed based on item 2 p.1 by Art. 6 of the Code of Criminal Procedure of 1960 due to the lack in their act of actus reus.

Outstanding sentences

During consideration of criminal cases by district courts in case of purpose of measure of punishment in each case courts generally adhered to general bases and the principles of punishment, considered severity of the committed crimes, the identity of the defendant, circumstance who mitigate or burden responsibility, and in general correctly applied regulations of the criminal procedure and criminal law for the purpose of protection of the rights and legitimate interests of persons, penalties were imposed within sanctions of articles of the Criminal Code taking into account the made changes according to the law.

At the same time in practice of courts shortcomings and mistakes still take place. Some courts in case of assignment of punishment on this category of cases allow the wrong application of the penal statute, but in the absence of appeals of participants of legal procedure sentences of district courts are left without changes. In the presence of the corresponding appeal such shortcomings and errors are corrected by courts of higher level.

Besides, according to data of district courts of Kiev the given problems are connected with complications of accomplishment of sentence and payment of the awarded penalty for benefit of the state.

So, in case of criminal prosecution according to Art. 205 of UK of persons who provided the passport and identification number of the taxpayer for the purpose of dummy entrepreneurship for small remuneration such persons often belong to lower-income strata and even with payment by installments of payment of penalty which is established by the p. 4 of Art. 53 of UK which is not able it to pay.

Determination of alternative measure of punishment in the sanction of the specified Article, for example, in the form of corrective works, would allow to provide real accomplishment of sentence and the penalty imposed by it.

As it is seen from the analyzed information, the sentences decided by courts according to section VII of UK "Crimes in the field of Economic Activity" as maximum punishment in the form of penalty can reach 50 thousand tax-free minima (for example in the p. 2 of Art. 203-2) most often are not carried out.

Under article 53 Code of Criminal Procedure in case of failure to carry out of sentence which to the condemned person applies mulctary punishment the court has the right to replace outstanding amount of penalty with punishment in the form of social jobs, corrective works, imprisonment and so forth.

Among other things by Art. 410 of the Code of Criminal Procedure of 1960 it is accurately not determined in what procedure and how the court shall resolve issue of replacement of mulctary punishment with other type of punishment by whom the question of punishment replacement shall be initiated. At the same time terms of the solution of question of replacement of mulctary punishment with other type of punishment are determined only by the Penitentiary code.

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