Life imprisonment proved to be an error

SUPREME COURT OF UKRAINE
RULING
IN THE NAME OF UKRAINE
The Supreme Court of Ukraine, at a joint session of the Judicial Chamber for Criminal Cases and the Military Judicial Collegium,
presided over by the Chairman of the Judicial Chamber for Criminal Cases
M.Ye. Korotkevych,
with the participation of the Deputy Prosecutor General of Ukraine V.V. Kudriavtsev,
having considered on 11 December 2009 in Kyiv the motion of convict R., submitted for review upon the request of five judges, regarding the review in the order of exceptional proceedings of the verdict of the Poltava Regional Court dated 13 November 2000 concerning him,
determined:
by the specified verdict
citizen R., born 22 February 1976, a citizen of Georgia, a native of the city of Sukhumi (Autonomous Republic of Abkhazia), a resident of the city of Kremenchuk, Poltava Region, with no prior convictions,
was convicted for:
- Part 3 of Article 142 of the Criminal Code of Ukraine to 12 years of deprivation of liberty with confiscation of all property belonging to the convict;
- Part 2 of Article 145 of the Criminal Code of Ukraine to 3 years of deprivation of liberty;
- Part 2 of Article 89 of the Criminal Code of Ukraine to 2 years of deprivation of liberty;
- Paragraphs 'a', 'g' of Article 93 of the Criminal Code of Ukraine to life imprisonment with confiscation of all property belonging to the convict.
On the basis of Article 42 of the Criminal Code of Ukraine, based on the totality of crimes, R. was given a final sentence of life imprisonment with confiscation of all property belonging to the convict.
It was ordered to recover from R. in favour of:
- self-supporting housing and maintenance department No. 5 of Kremenchuk: 621 UAH for material damages;
- the expert institution: court costs in the amount of 158 UAH 10 kop.;
- the victim P.: 13,000 UAH for moral damages.
By the same verdict, citizen Z. was also convicted, for whom no motions for the review of court decisions have been received.
According to the court verdict, R. was convicted of the intentional murder of two persons, committed under the following circumstances.
On 4 April 2000, R. and Z., knowing for certain that N. and her son N.M. had received 3,000 US dollars as compensation after exchanging their apartment, decided to take possession of them. To this end, while in a state of alcoholic intoxication, they came to apartment No. ** of building No. ** on Pushkin Boulevard in Kremenchuk, Poltava Region, at approximately 22:00, and when N. opened the door, Z. pushed her inside and entered the apartment. R. followed and locked the door from the inside. N.M. came out of the room at N.'s cries for help. Then Z., as soon as N.M. was in the room, began to strike him numerous blows with his fists and a crystal vase to various parts of his body, from which he lost consciousness. At the same time, R. struck N. with his fists on the head and strangled her with a piece of fabric, demanding the handover of the money. He applied violence until she lost consciousness. After this, R. and Z. began packing the television and other household property belonging to the victims, valued at 1,097 hryvnias, to carry it away.
When N. regained consciousness, R. struck her several times on the head with the crystal vase, causing her to lose consciousness again.
Having not found the money, R. took a knife from the kitchen, and together with Z., they began to threaten N.M. first, and then his mother, forcing them to name the hiding place of the money. The victims denied having any money. Then R., on his own initiative, going beyond the agreement with Z., for mercenary motives, killed the victims. He cut the throats of N. and N.M. with the knife, which led to the damage of major blood vessels and the death of the victims due to the resulting blood loss.
In order to conceal the crime, R. doused the bodies and the furnishings with solvent and set the apartment on fire. As a result of the arson, the convict caused damage amounting to 4,965 UAH. Furthermore, these actions damaged the entrance No. ** of building No. ** on Pushkin Boulevard in the city of Kremenchuk, which caused damage to the state in the amount of 621 UAH.
By the ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of Ukraine dated 21 December 2000, the court verdict regarding R. was left unchanged.
In the motion for the review of court decisions in the order of exceptional proceedings, the convict R. raised the issue of changing the court decisions and sentencing him under paragraphs 'a' and 'g' of Article 93 of the 1960 Criminal Code to 15 years of deprivation of liberty, as he believes that at the time he committed the murder of the victims N. and N.M., the criminal law did not provide for such a type of punishment as life imprisonment.
Upon the motion of five judges of the Judicial Chamber for Criminal Cases of the Supreme Court of Ukraine, the motion of R. was submitted for review in connection with the incorrect application of criminal law by the court.
Having heard the report of Judge of the Supreme Court of Ukraine M.R. Klymenko, the opinion of Deputy Prosecutor General of Ukraine V.V. Kudriavtsev, who believed that the motion should be satisfied, having verified the materials of the case and discussed the arguments of the motion, the judges of the Judicial Chamber for Criminal Cases and the Military Judicial Collegium of the Supreme Court of Ukraine believe that the motion is subject to satisfaction for the following reasons.
In accordance with Article 6 of the 1960 Criminal Code, the criminality and punishability of an act are determined by the law that was in effect at the time of the commission of that act.
A law that eliminates the criminality of an act or mitigates punishment has retroactive effect, meaning it extends from the moment of its entry into force to acts committed prior to its issuance.
The sanction of Article 93 of the 1960 Criminal Code provided for criminal liability for intentional murder under aggravating circumstances and established punishment in the form of deprivation of liberty for a term of 8 to 15 years or the death penalty.
By the decision of the Constitutional Court of Ukraine dated 29 December 1999, in the case concerning the constitutional motion of 51 People's Deputies of Ukraine regarding the compliance with the Constitution of Ukraine of the provisions of Articles 24, 58, 59, 60, 93, and 190-1 of the Criminal Code of Ukraine in the part providing for the death penalty as a type of punishment, the provisions of Article 24 of the General Part and the provisions of the sanctions of the articles of the Special Part of the Criminal Code of Ukraine that provided for the death penalty as a type of punishment were found to be non-compliant with the Constitution of Ukraine (unconstitutional). The provisions of the Criminal Code of Ukraine that were declared unconstitutional lose their force from the day of the adoption of this decision by the Constitutional Court of Ukraine.
In execution of the decision of the Constitutional Court of Ukraine dated 29 December 1999, the Verkhovna Rada of Ukraine adopted the Law of Ukraine dated 22 February 2000 'On Amendments to the Criminal, Criminal Procedure, and Corrective Labour Codes of Ukraine', by which the punishment in the form of the death penalty was replaced by life imprisonment.
According to this law, it was provided to enter into force from the day of its publication, which was carried out in the official publication - in the newspaper 'Uriadovyi Kurier' on 04 April 2000.
According to the meaning of Article 4 of the Criminal Code of Ukraine, a law on criminal liability that provides for entry into legal force from the day of its publication in an official printed edition, takes effect at 00:00 on the day following its publication.
In connection with this, for crimes committed in the period from 29 December 1999 to 24:00 on 04 April 2000 inclusive, for which the Criminal Code of Ukraine provided for punishment in the form of the death penalty, prior to the introduction of the new type of punishment – life imprisonment – on the basis of the aforementioned Law of Ukraine dated 22 February 2000, which entered into force at 00:00 on 05 April 2000, the convict could only be sentenced to a maximum punishment in the form of deprivation of liberty for a term of 15 years.
From the materials of the criminal case, it is evident that R. committed the crime provided for by paragraphs 'a' and 'g' of Article 93 of the 1960 Criminal Code on 04 April 2000 at approximately 22:00, i.e., during a period when the criminal law did not contain the punishment of life imprisonment, and the new law, which established this punishment, had not yet entered into force.
Consequently, the court decisions regarding R. are subject to change due to the incorrect application of criminal law when sentencing him under paragraphs 'a' and 'g' of Article 93 of the Criminal Code, for which he must be sentenced to deprivation of liberty for a term of 15 years.
Guided by Articles 400-4 and 400-10 of the Criminal Procedure Code of Ukraine, the Supreme Court of Ukraine

RULED:

the motion of the convict R. is to be satisfied.
The verdict of the Poltava Regional Court dated 13 November 2000 and the ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of Ukraine dated 21 December 2000 regarding R. are to be changed; he is to be sentenced under paragraphs 'a' and 'g' of Article 93 of the 1960 Criminal Code to punishment in the form of deprivation of liberty for a term of 15 (fifteen) years with confiscation of all property belonging to him.
On the basis of Article 42 of the Criminal Code of Ukraine, based on the totality of crimes provided for by paragraphs 'a' and 'g' of Article 93, Part 3 of Article 142, Part 2 of Article 145, and Part 2 of Article 89 of the 1960 Criminal Code, R. is to be considered sentenced to 15 years of deprivation of liberty with confiscation of all property belonging to him.

Presiding Judge
Reporting Judge

Case No. 5-67pO9 Category: paragraphs 'a', 'g' of Article 93, Part 3 of Article 142.
Part 2 of Article 145, Part 2 of Article 89 of the Criminal Code of Ukraine
Presiding Judge in the first instance Landar
Rapporteur in the cassation instance Klymenko M.R.