The Supreme Court overturned the verdict against a man who took a phone for a 1,000 UAH debt — his actions were seen as robbery

In case No. 333/11141/23, the Supreme Court, composed of judges of the Third Judicial Panel of the Cassation Criminal Court, overturned the appellate court's decision in a case where a man, threatening with a pistol, took a mobile phone from the victim allegedly as collateral for a debt. However, the accused was convicted not of robbery, but of coercion to fulfill a civil-law obligation. The court emphasized that the seizure of another's property to secure debt repayment is not covered by Article 355 of the Criminal Code of Ukraine and requires proper legal assessment.

What is known from the case materials

The incident occurred on the evening of October 17, 2023, when the accused met with the victim at the request of his acquaintance, who said the victim owed 1,000 UAH for sold mobile phones. Approaching the victim from behind, he grabbed him by the neck, took out a starter pistol, which the victim perceived as a real firearm, pressed it to his chest, and began demanding money. When the victim denied the debt, the accused fired a shot upwards.

The Komunarsky District Court of Zaporizhzhia found the accused guilty not of robbery, as charged, but requalified his actions from Part 4 of Article 187 of the Criminal Code of Ukraine (robbery) to Part 1 of Article 355 of the Criminal Code of Ukraine (coercion to fulfill a civil-law obligation). The court sentenced him to one year of restriction of liberty and released him from serving the sentence with probation. The Zaporizhzhia Court of Appeal agreed with these conclusions and left the verdict unchanged.

The prosecutor appealed this decision, stating that the accused's actions were aimed precisely at seizing another's property by means of a robbery attack. He also emphasized that the appellate court did not properly verify whether a civil-law obligation existed between the parties, did not assess the victim's testimony and other evidence, and unjustifiably refused to re-examine the evidence.

The Supreme Court supported the prosecutor's arguments

The Supreme Court reminded that the appellate court is obliged not only to verify the legality and validity of the verdict but also to provide exhaustive answers to all arguments presented in the appeal. A formal review of the case without proper evaluation of the parties' arguments does not meet the requirements of the Criminal Procedure Code of Ukraine.

The court noted that the prosecutor in the appeal claimed an incorrect legal assessment of the accused's actions. In his opinion, the local court unjustifiably requalified the charge from robbery (Part 4 of Article 187 of the Criminal Code of Ukraine) to coercion to fulfill a civil-law obligation (Part 1 of Article 355 of the Criminal Code of Ukraine), although, according to the prosecution, the man's actions were aimed at seizing the victim's mobile phone by means of a robbery attack.

At the same time, the Supreme Court noted that the appellate court did not properly verify these arguments and essentially only agreed with the conclusions of the first-instance court without clarifying all the circumstances of the criminal proceedings.

The court reminded that criminal liability under Article 355 of the Criminal Code of Ukraine arises only when a person is coerced to perform or not perform an already existing civil-law obligation that arose on lawful grounds. Coercion consists of two interrelated actions: a demand to perform or not perform a civil-law obligation and a threat of violence or damage or destruction of property.

The Supreme Court has repeatedly emphasized that when distinguishing the criminal offense under Article 355 of the Criminal Code of Ukraine from other crimes, it should be understood that in coercion to perform or not perform civil-law obligations, the offender does not encroach on another's property or rights to it, nor demands from the victim other property-related actions that the latter is not obliged to perform. He forces the victim to fulfill his legal duty arising from civil-law obligations. In committing this crime, there is no encroachment on property; moreover, the offender by coercion may seek to restore violated property relations caused by the victim.

As the Supreme Court noted, Article 355 of the Criminal Code of Ukraine does not provide for such a method of coercion as seizure and retention of another's property to ensure fulfillment of a civil-law obligation. However, in this case, the courts established that the accused, holding the victim by the neck and threatening with an object resembling a pistol, which the victim perceived as a real weapon, obtained the mobile phone from him. Thus, active actions to seize another's property were actually established. In addition, a contradiction arose between the factual circumstances established by the courts and their legal assessment, which is unacceptable.

Furthermore, the court noted that the prosecutor also referred to the victim's testimony, who stated that an unknown man, threatening with a pistol, demanded payment of a non-existent debt and then seized his mobile phone. However, the appellate court did not properly assess these arguments and did not explain why it rejected them.

The Supreme Court added that the appellate court mistakenly considered itself unable to re-examine the evidence due to the absence of a corresponding motion from the prosecutor. The Cassation Court emphasized that if the appeal contains arguments about incorrect application of criminal law or inconsistency of the court's conclusions with the factual circumstances of the case, the appellate court has the right to re-examine the evidence even without a separate motion from the party.

Thus, the appellate court's ruling is subject to cancellation based on points 1 and 2 of Part 1 of Article 438 of the Criminal Procedure Code of Ukraine, and the criminal proceedings are to be referred for a new trial in the appellate court.

Regarding the prosecutor's arguments about the leniency of the sentence imposed on the accused, the Supreme Court emphasized that due to the cancellation of the appealed ruling, in particular on the grounds provided by point 2 of Part 1 of Article 438 of the Criminal Procedure Code of Ukraine, the cassation court is deprived of the opportunity to express an opinion on them.

Also, during the new trial in the appellate court, it is necessary to take into account the above, investigate circumstances of legal significance, thoroughly verify the prosecutor's appeal arguments, assess the evidence in terms of relevance, admissibility, and reliability, and their totality in terms of sufficiency and interconnection, after which to make a lawful, reasoned, and properly motivated court decision.

In view of this, the Supreme Court partially satisfied the cassation appeal. The appellate court's decision was overturned and a new trial was scheduled in the appellate court.

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