Abstract
The article is devoted to the analysis of the problems which may arise at the stage of review by the Supreme Court of criminal proceedings in case of simultaneous existence of two legal facts which are the grounds for closing criminal proceedings: the expiration of the law which established the criminal unlawfulness of an act (clause 41, part 1, Article 284 of the Criminal Code of Ukraine) and the death of a convicted person, but whose close relatives insisted on the deceased’s rehabilitation (clause 5, part 1, Article 284 of the CPC of Ukraine). To achieve the purpose of this study, the author, using the systematic, generalising, comparative and analysis methods, has identified the common and distinctive features of both grounds for closing criminal proceedings provided for in clauses 41, 5 of Part 1 of Article 284 of the Criminal Code of Ukraine. The common features include the fact that they are non-rehabilitating in terms of the consequences for the convicted person; they are related to the occurrence of a legal fact: 1) adoption or amendment of the law of Ukraine on criminal liability and 2) death of the convicted person at the stage of cassation proceedings. The author identifies the will of a particular person to implement the principle of presumption of innocence as distinctive. In particular, for the court to make a decision based on clause 41 of Part 1 of Article 284 of the Criminal Code of Ukraine, active (volitional) behaviour of the convict is required, while for the application of clauses 5 of Part 1 of Article 284 of the Criminal Code of Ukraine, passive (conclusive) behaviour of the deceased convict’s close persons is sufficient. It is due to this difference that the author states that the Supreme Court has no right to close the proceedings based on clause 41 of Part 1 of Article 284 of the Criminal Code of Ukraine without the consent of the convicted person. The article also examines the powers of the Supreme Court to continue the trial of proceedings aimed at rehabilitation of a deceased convict. The author emphasises that the cassation court cannot refuse to consider the application of the deceased’s relatives for rehabilitation only on the grounds that the act for which he/she was convicted was decriminalised by the legislator. In this regard, the author proposes appropriate amendments to the Criminal Code of Ukraine. In addition, the author examined the existing limits of cassation proceedings within which the cassation court may conduct a criminal investigation and make decisions with a view to rehabilitating a convicted person.
Published Version
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