The Board of
Judges of the Chamber of Criminal Cases of the Supreme Court of Ukraine specialized
handling civil and criminal cases including:
presiding Slynko SS,
Judges Chuiko OH, OM Litvinova,
with the prosecutor Verhizovoyi LA
considered in
court in Kiev 30 June 2011 a criminal case on the appeal counsel Chernyuk
Yu.V.v interests convicted Chernyuk OY in the District Court sentence
Snigurivs'ka Mykolayiv region of 22 March 2010 and the Court of Appeal decision
of Mykolayiv region of 25 May 2010 on Chernyuk OY
District Court
verdict Snigurivs'ka Mykolayiv region of 22 March 2010 -
Chernyuk OY , S. Maliivka, a citizen of
Ukraine, previously convicted, sentenced for Part 2 of Art. 307 Criminal Code
of Ukraine on 5 years' imprisonment with confiscation of all property which is
his property.
Decision of the
Court of Appeal of Mykolayiv region from May 25, 2010 sentence Chernyuk OY left
unchanged.
Chernyuk OY convicted of what he, in late
August 2009, tore leaves and inflorescences of cannabis plants on the plots in
a place of residence, namely S. Maliivka, Mykolaiv region. dried up, and it
podribnyv thus illegally acquired and produced no less than 3.8 g is
particularly dangerous narcotic drug - cannabis, which unlawfully kept for sale
near his place of residence.
August 25, 2009,
at approximately 20 hours. 00 min., During the operational procurement of drugs
Chernyuk OY the place of residence, acting with selfish motives, intentionally
illegally for 50 USD. zbuv person under the pseudonym OSOBA_3 chopped dry
substance of plant origin - especially dangerous narcotic - cannabis weighing
3.8 g.
In addition, 26
August 2009, at approximately 16 hours. 30 min., During the operational
procurement of drugs, Chernyuk OY the place of residence, acting with selfish
motives, intentionally illegally for $ 100. zbuv person under the pseudonym
OSOBA_4 chopped dry substance of plant origin - especially dangerous narcotic -
cannabis, weighing 10 g.
Defender Chernyuk
J., on behalf of the convicted Chernyuk OY In cassation complaint refers to the
disparity of conclusions court factual circumstances, incompleteness, bias,
bias and pre-trial investigation, a material breach of criminal procedure and
improper application of criminal law. Notes that the pre-trial investigation
and trial was made incomplete, due to which Chernyuk OY was illegally sentenced
for a crime not committed, and prosecution based on evidence obtained
illegally. Also indicates that the pre-trial investigation and trial were
grossly violated prisoners' rights to protection, because there was applied in
the physical and psychological violence, unlawfully been removed counsel during
interrogation of a witness who dopytuvavsya in accordance with Art. 303 of the
CPC of Ukraine, court proceedings are not recorded by technical means in full
violation of the detention, violations of human speech, convicted of the
latest, a violation of rights of prisoners to use their native language. Notes
that the appeals court said in ruling eyewitness testimony that were not
examined in court and made a false indication of the lack of comments on the
protocol of the trial. Requests to cancel court decisions and proceedings
against Chernyuk OY close failing in his actions a crime.
Having heard the
report of the judge, according to the prosecutor, who objected to the appeals
of convicts, checking the case file and discussed the arguments of the
cassation appeal, the panel of judges considers that the complaint is subject
to partial satisfaction of the following grounds.
As required by Art. 303 of the CPC of
Ukraine to ensure safety of the witness, subject to interrogation, the court
(judge) on its own initiative or at the request of the prosecutor, the lawyer
of the witness or his counsel invited take a reasoned decision of the
examination of a witness using technical means on the other premises, including
those outside the court premises and the right to listen to those involved in
his testimony, ask questions and hear answers. Where there is a risk of
identification witness's voice, may be accompanied by acoustic disturbance. If
you examine a witness using technical means impossible, the court (judge)
interrogates him in the absence of the defendant. Questioned a witness is
removed from the courtroom. After returning the defendant to the courtroom, the
presiding acquaints him with the testimony of a witness and give him the
opportunity to explain about this. The defendant and the trial participants are
entitled to question the witness. Witness answers questions in the absence of
the defendant.
As ubachayetsya of the file specified
requirements of procedural law the court of first instance have been violated.
According to
court records dated 16 March 2010, when questioning a witness Voronin
(Kravchenko) trial took place without the defendant and his counsel, involving
only the prosecutor, defense counsel was thereby deprived of the opportunity to
ask the witness questions, receive answers to them. It was secured in violation
of Art. 261 CPC of Ukraine equality rights of the parties in court to file,
research and evidence convincing evidence. In addition, violated the right to
protection Chernyuk OY by restricting the set of points 6, 7 Part 2 of Art. 48
Ukraine PDA rights defender sentenced.
According to Art.
377 Code of Ukraine, in the Court of Appeal decision should be referred to the
essence of the appeal and the detailed reasons for the decision. In case of
abandonment of appeal without satisfaction of the Court of Appeal decision
should be referred to the grounds through which the appeal is found ungrounded.
However, the
Appeal Court Procedure Act, these requirements are not properly performed,
compelling reasons of the decision on appeal counsel had failed and said the
grounds on which acknowledged the arguments of substantial violation of
criminal procedural law in the trial court of first instance, unsubstantiated.
Infringement, criminal - procedural law is grounds for cancellation of the
Court of Appeal ruling.
Given the
foregoing, the sentence the trial court and Court of Appeal decision is subject
to cancellation and the right assignment for a new trial.
At the new trial,
if guilty Chernyuk OY alleged to have committed his crime is proved, and
qualification of his actions is confirmed, the court must fully and
comprehensively test the arguments set forth counsel in cassation appeal and
depending on the specific legal and take an informed decision.
Following
centuries 394-396 Code of Ukraine, the panel of judges,
adopted:
appeal counsel
Chernyuk Yu.V.zadovolnyty part.
Sentence
Snigurivs'ka District Court Mykolayiv region of 22 March 2010 and the Court of
Appeal decision of Mykolayiv region of 25 May 2010 on Chernyuk OY - Delete and
send the case to a new trial.
Referee: SS Slynko OH Chuiko AM Litvinov
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