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.
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