A woman in Odesa region avoided punishment for fraud but received one year of restriction of liberty for evading corrective labor

The Supreme Court, composed of a panel of judges from the Second Judicial Chamber of the Cassation Criminal Court, made a decision in case No. 946/1898/23. The defense side attempted to appeal the verdict for evading community service, citing the subsequent release of the convicted person from this punishment due to changes in legislation.

The case materials state that in 2022, the Izmail City District Court of Odesa region found the accused guilty under Part 1 of Article 190 of the Criminal Code of Ukraine and sentenced her to 200 hours of community service.

After the verdict came into legal force, as established by the courts, the convicted person, having been duly informed about the procedure and conditions of serving the sentence and warned about criminal liability, deliberately evaded its execution.

For this, she was held liable under Part 2 of Article 389 of the Criminal Code of Ukraine. The court of first instance sentenced her to 1 year of restriction of liberty with a probation period, but the appellate court took a stricter stance: it canceled the probation release and imposed a real sentence — 1 year of restriction of liberty. Additionally, the court joined the unserved part of the sentence from the previous verdict and finally set the punishment for the totality of sentences at 1 year and 25 days of restriction of liberty.

In the cassation appeal, the defense emphasized that the situation changed after the previous decisions, since in 2024 the convicted person was released from serving community service due to the decriminalization of the act for which she was initially convicted.

Based on this, the defense argued that releasing the convicted person from community service due to the decriminalization of the act excludes the possibility of holding her criminally liable for evading the execution of this punishment.

Supreme Court Decision

However, the Supreme Court did not agree with the defense's arguments that the subsequent release of the convicted person from punishment due to the decriminalization of the act automatically excludes liability for evading its execution.

The panel of judges noted that a guilty verdict that has come into legal force is mandatory to execute, and evasion of the imposed punishment entails criminal liability under Article 389 of the Criminal Code of Ukraine. The court emphasized that the composition of this criminal offense is formal and is considered complete from the moment actions aimed at evading the execution of the punishment are committed.

The Supreme Court stated that the legislative changes that came into force in 2024 and removed the criminality of the act for which the person was convicted under Part 1 of Article 190 of the Criminal Code of Ukraine did not make the previous verdict illegal and did not cancel the obligation to serve it during the period before release from punishment. Therefore, the subsequent release from community service does not eliminate criminal liability for evading its execution committed before such release.

At the same time, the Court emphasized that according to Part 1 of Article 71 of the Criminal Code of Ukraine, if the convicted person commits a new criminal offense after the verdict but before fully serving the sentence, the court fully or partially joins the unserved part of the previous sentence to the punishment imposed by the new verdict.

Since at the time of the appellate court's decision the convicted person had already been released from the punishment imposed by the previous verdict, the unserved part was absent. Under these circumstances, the application of Articles 71 and 72 of the Criminal Code of Ukraine was unfounded.

In conclusion, the Supreme Court partially satisfied the defense's cassation appeal. The court changed the verdict of the Odesa Appellate Court regarding the punishment and excluded the application of rules on the totality of sentences considering the previous verdict of the Izmail City District Court of Odesa region dated October 14, 2022.

The Supreme Court also upheld the finding of guilt under Part 2 of Article 389 of the Criminal Code of Ukraine and sentenced her to 1 year of restriction of liberty. The other parts of the court decisions remained unchanged.

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