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GENERALIZATION OF THE SUPREME COURT OF UKRAINE

of February 1, 2013

Practice of review by the Supreme Court of Ukraine of judgments on criminal cases on the bases provided by Art. 400-12 of the Code of penal procedure of Ukraine

Acceptance by the Verkhovna Rada of Ukraine on July 7, 2010 of the new Law of Ukraine "About judicial system and the status of judges" caused essential change of powers of the Supreme Court of Ukraine as degree of jurisdiction on review of judgments, in particular, on criminal cases.

So, according to p.1 Art. 400-12 of the Code of penal procedure of Ukraine (further - the Code of Criminal Procedure) the Supreme Court of Ukraine reviews judgments on criminal cases on the bases:

1) unequal application of cassation instance of the same regulations of the penal statute of rather similar socially dangerous acts by court (except questions of assignment of punishment, release from punishment and from criminal liability) that led to adoption of judgments, different in content;

2) establishments by the international legal agency which jurisdiction is acknowledged as Ukraine, violations of the international obligations by Ukraine in case of the solution of case by court.

According to the p. 2 of Art. 400-12 of the Code of Criminal Procedure review of judgments on the basis provided by item 2 p.1 of this Article for the purpose of application of the law on more serious crime to increase amount of accusation or on other bases to worsen situation of the convict, and also the verdict of not guilty, determination or the resolution on solution of the case is not allowed.

According to statistical data of the Supreme specialized court of Ukraine on consideration of civil and criminal cases (further - VSSU) in the I half-year 2012 in this legal agency 144 statements for review of judgments on the bases, stipulated in Item 1 p.1 of Art. 400-12 of the Code of Criminal Procedure arrived. From them 15 applications were submitted by prosecutors, and 129 - other persons whose circle is determined in Art. 384 of the Code of Criminal Procedure.

33 applications, from them are returned: one - in connection with withdrawal of the statement, 28 - because applicants did not eliminate defects during fixed term, one - because the application is submitted by person who had no such right; three more applications are returned because the application is submitted on behalf of person who had on that no appropriate authority.

Six statements are left without consideration; by results of consideration of 52 statements the decision on refusal in the admission to production in the Supreme Court of Ukraine is made.

Criminal cases by results of consideration of 18 statements are allowed to production; in two cases production in VSSU in connection with non-compliance with regulations of procedural law is open.

The remaining balance for the end reporting the period constituted 49 statements, from them 17 - in connection with provision to applicants of term on remedial action.

Also within the I half-year 2012 in VSSU 12 statements for review of judgments on the basis provided by item 2 p.1 Art. 400-12 of the Code of Criminal Procedure arrived. From them four statements are returned with provision of term on remedial action applications; production by results of consideration of 10 statements, including with reclamation of nine criminal cases is open. The remaining balance constituted one statement in connection with provision of term on remedial action.

The corresponding indicators in 2011 are distributed thus. So, during the specified accounting period in VSSU 180 statements for review of judgments on the bases provided by Art. 400-12 of the Code of Criminal Procedure including on the bases provided by item 1 p.1 Art. 400-12 of the Code of Criminal Procedure - 157 statements arrived; on the bases provided by item 2 p.1 Art. 400-12 of the Code of Criminal Procedure - 23 statements. 29 applications were submitted by prosecutors, the others, 151 statements, persons whose circle is determined in Art. 384 of the Code of Criminal Procedure.

On the different bases 62 applications were returned (57 - according to item 1 p.1 Art. 400-12 of the Code of Criminal Procedure; 5 - according to item 2 p.1 Art. 400-12 of the Code of Criminal Procedure). 31 determinations about the admission of criminal cases to production in the Supreme Court of Ukraine are decided (23 - according to item 1 p.1 Art. 400-12 of the Code of Criminal Procedure; eight - according to item 2 p.1 Art. 400-12 of the Code of Criminal Procedure); according to 56 statements - the admission to production it is refused (51 - according to item 1 p.1 Art. 400-12 of the Code of Criminal Procedure; five - according to item 2 p.1 Art. 400-12 of the Code of Criminal Procedure).

According to statistical data from coming into force of the Law of July 7, 2010 No. 2453-VI "About judicial system and the status of judges" on August 31, 2010 and to corresponding changes in the Code of Criminal Procedure, that is during the period from 2011 to the I half-year 2012 the Supreme Court of Ukraine reviewed judgments on 39 criminal cases on the bases provided by Items 1 and 2 of Art. 400-12 of the Code of Criminal Procedure. So, in 2011 such quantity made 25 considered cases; in the I half-year 2012 - 14 criminal cases.

From them in 2011 it was refused allowance of the application about review of judgments on 10 cases, 14 more cases were considered with complete or partial cancellation of judgments. One case was closed in connection with withdrawal of the statement.

On the bases of unequal application of the legislation judgments on seven criminal cases were cancelled; the same number of case is reconsidered with cancellation of judgments on the basis provided by item 2 p.1 Art. 400-12 of the Code of Criminal Procedure.

The corresponding indicators of work of the Supreme Court of Ukraine on review of judgments on criminal cases in the I half-year 2012 look thus.

Within half-year were considered only 14 cases from which: seven - in allowance of the application it is refused; in six - judgments are cancelled and one case is closed by production.

Unequal application of regulations of the substantive right became the basis of cancellation of judgments in five cases; judgments even in one criminal case are cancelled on the basis, stipulated in Item 2 p.1 by Art. 400-12 of the Code of Criminal Procedure.

The solution of the questions connected with the admission of case to production in the Supreme Court of Ukraine

It is necessary to pay attention that according to Art. 400-16 of the Code of Criminal Procedure the application for review of judgments is submitted to the Supreme Court of Ukraine through VSSU which checks it regarding compliance to requirements of articles 400-15 and 400-16 Codes of Criminal Procedure and by results of such check decides determination about the admission of case to production or refusal in such admission. Therefore, the possibility of review by the Supreme Court of Ukraine of judgments on criminal cases depends on the solution of VSSU of question of the admission of case to production in the Supreme Court of Ukraine.

Requirements to the statement

Article 400-15 Code of Criminal Procedure provides requirements concerning contents of the statement for review of judgments for the bases provided by Art. 400-12 of the Code of Criminal Procedure.

So, in the statement it shall be specified:

1) the name of court to which the application is submitted;

2) persons this relatively which submits the application;

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