The Supreme Court acquitted a police officer who used a gas spray on a man filming an arrest

The panel of judges of the Cassation Criminal Court of the Supreme Court, reviewing case No. 754/13191/16-k, concluded that the use of a special coercive measure by a police officer on the grounds and in the manner prescribed by law does not constitute a crime under Article 365 of the Criminal Code of Ukraine, even if such actions caused bodily injuries to the victim.

Circumstances of the case and decisions of previous courts

According to the case data, in December 2015, patrol police officers were inspecting a vehicle with a trailer used for selling coffee, which lacked a license plate. The vehicle owner could not provide documents and began to resist during further communication and attempts to take him to the police station.

His acquaintance arrived at the scene, started recording the events on a mobile phone, and demanded explanations from the law enforcement officers. According to the prosecution's version, the police officer unjustifiably sprayed gas from a canister twice into his face, causing minor bodily injuries.

The prosecution qualified these actions as an abuse of official powers by a law enforcement officer (part 2 of Article 365 of the Criminal Code of Ukraine).

The Desniansky District Court of Kyiv acquitted the police officer due to the absence of a criminal offense in his actions. The Kyiv Court of Appeal agreed with this conclusion and left the verdict unchanged.

Supreme Court decision

The Supreme Court noted that during cassation review it does not re-evaluate evidence or establish new factual circumstances but checks the correct application of substantive and procedural law by the courts.

Considering the prosecutor's cassation appeal, the Supreme Court emphasized that the key issue was not whether the victim sustained injuries but whether the police officer exceeded his authority.

The court stressed that causing minor bodily injuries during the lawful use of police coercive measures does not in itself constitute a crime.

The panel of judges reminded that under the presumption of innocence principle, the burden of proof lies with the prosecution. The court noted that according to the Law "On the National Police," police officers have the right to use special means, including handcuffs and devices equipped with tear and irritant substances. At the same time, the type and intensity of coercion must be proportional to the specific situation.

The court agreed with the conclusions of the lower courts that during the detention, the police acted within their official powers, wore uniforms, identified themselves as police officers, and issued a lawful demand not to interfere with their activities. However, this demand was ignored. The court emphasized that causing minor bodily injuries during the lawful use of police coercive measures does not in itself constitute the objective side of the crime under part two of Article 365 of the Criminal Code of Ukraine.

The panel of judges stressed that to qualify actions under this article, it is necessary to establish that the law enforcement officer clearly exceeded the rights or powers granted to him and was aware of the unlawfulness of his actions. Instead, the courts concluded that the prosecution did not provide evidence beyond reasonable doubt confirming the presence of a criminal offense in the police officer's actions.

Since the prosecution cannot be based on assumptions, and all doubts regarding the proof of guilt are interpreted in favor of the accused, the appellate court agreed with the local court's verdict, which made a lawful and reasoned decision to acquit the police officer due to the absence of a criminal offense under part two of Article 365 of the Criminal Code.

The Supreme Court concluded that the appellate court properly examined the prosecutor's arguments, evaluated them, and provided sufficient reasons for leaving the acquittal verdict unchanged.

This decision clarifies the limits of using special means by police officers during the performance of official duties. The court emphasized that lawful police demands are mandatory for compliance, and ignoring them may have consequences for citizens.

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