Some Problems of Making a Procedural Decision to Close Criminal Proceedings in Connection with the Release of a Person from Criminal Liability

Abstract

In judicial practice, there are situations when, as of the day of the decision of the appellate court, the statute of limitations for bringing the accused to criminal responsibility has expired, and the defense does not take the initiative to release the person from criminal liability. Accordingly, the court in no way responds to the existence of this circumstance and does not decide on the application (non-application) of the grounds contained in paragraph 1 of Part 2 of Article. 284 of the CPC, or another, to make a procedural decision to close the criminal proceedings. Therefore, the aim is to try to answer the question of which of the procedural decisions, under the described conditions and circumstances, should be made by the court: to close the criminal proceedings in connection with the release of a person from criminal liability or a person should be released in the court of cassation from punishment? Due to the applied formal-logical method and systematic analysis, it was found that Part 2 of Art. 284 of the CPC concerns cases of closing criminal proceedings exclusively by the court. It was stated that in paragraph 1 of this part of the article, among the grounds for closing the criminal proceedings, the legislator provides and “...in connection with the release of a person from criminal liability.” At the same time, it has been proven that the right of a person to be released from criminal liability, if there are grounds for it, judges often do not depend on their own duty to explain to a person such a right so that he can use it. It is established that the responsibilities enshrined in Art. 285 of the CPC apply not only to courts of first instance, but also to appellate instances. Research methods such as sampling, system-structure, induction and deduction have been used to argue that in circumstances where a court conviction has entered into force, a person should be exempt from the court of cassation, this is stated in Part 5 of Art. 74 of the Criminal Code of Ukraine, on the grounds provided for in Art. 49 of the Criminal Code of Ukraine. At the same time, it is proved that the court has hindered the adoption of such a procedural decision by the approach that the legislator laid down in the construction of paragraph 1, part 2 of Art. 284, art. 440 of the CCP.