The indictment and calculation of the monetary threshold

Positions of the trial and appellate courts: the lower courts found the defendants guilty and convicted one under Article 27(3), (4) and (5), read with Article 187(4), of the Criminal Code; another under Article 27(4) and (5), Article 187(4) and Article 263(1); and the other defendants under Article 187(4). In the same judgment, the court found them not guilty under Article 257 of the Criminal Code and acquitted them because the elements of that offence had not been proved.

In the cassation appeal, defence counsel disputed the classification under Article 187(4) insofar as it concerned taking money in an especially large amount, arguing that the prosecution had not established the relevant value during the appellate hearing.

Position of the Criminal Cassation Court: the appellate ruling was upheld.

Reasoning of the Criminal Cassation Court: the panel stated that the indictment classified the defendants’ conduct, including under Article 187(4), as an attack aimed at taking another person’s property, involving violence dangerous to the victim’s life and health and a threat of such violence, committed by a group by prior agreement and directed at taking an especially large sum of money: UAH 1,424,500.

The charge therefore identified both the relevant qualifying element—an offence aimed at taking property in an especially large amount—and the specific sum of UAH 1,424,500. The indictment made clear that the prosecution treated that sum as especially large. Article 291 does not require a separate arithmetic calculation of the monetary threshold for that qualifying element in the indictment.

Under paragraph 4 of the note to Article 185 of the Criminal Code, in the version applicable at the time of the offence, offences under Articles 185–187, 189–191 and 194 were considered to involve an especially large amount where a person or group committed the offence for a sum at least 600 times the non-taxable minimum income of citizens at the time.

Under paragraph 5 of Subsection 1 of Section XX of the Tax Code, for classifying offences the non-taxable minimum income was set at the level of the social tax allowance defined in subparagraph 169.1.1 of Article 169(1), Section IV. That allowance equalled 50 per cent of the statutory subsistence minimum for an able-bodied person on 1 January of the relevant year.

Under Article 7 of the Law on the State Budget of Ukraine for 2019, the subsistence minimum for an able-bodied person on 1 January 2019 was UAH 1,921. The social tax allowance used to determine the monetary threshold was therefore UAH 960.50 (UAH 1,921 × 50%).

Accordingly, the minimum threshold for an especially large amount at the time of the alleged offence was UAH 576,300 (UAH 960.50 × 600). The sum of UAH 1,424,500 was therefore more than twice that minimum threshold.

The amount of money that the pre-trial investigation authority established as the target of the convicted persons’ conduct therefore met the statutory qualifying element of an especially large amount.