On August 8, the HACC Appeals Chamber overturned the acquittal of ex-MP Dmytro Koliesnikov and returned his case to the first instance of the court.
Earlier, the NABU and the SAPO accused Dmytro Koliesnikov of having two apartments in Kyiv and unreasonably applying for compensation for the cost of a hotel room, which he used from 2014 to 2018. Law enforcement officers qualified such actions under Article 364, part 2 of the Criminal Code of Ukraine, that is, abuse of power, which caused damage in the amount of UAH 758,000.
However, in September 2022, the first instance of the HACC acquitted Koliesnikov, since there were no signs of abuse of power in his actions. The court came to this conclusion, assessing the imperfect procedure for assigning housing cost payments to MPs: no one checked the information in these applications, and the compensation itself was carried out on the basis of the decision of the specialized committee of the Verkhovna Rada, and not the statement of the MP.
In turn, Judge Nohachevskyi agreed with his colleagues that there was no abuse of power in the actions of the ex-MP, but there was abuse of office.
Interestingly, the HACC not only recognized the MP as innocent. The court additionally indicated that there were signs of fraud in his actions, committed on an especially large scale (Art. 190, part 4 of the Criminal Code of Ukraine). Since this crime is more serious than the one incriminated, Koliesnikov could be convicted for it.
In the end, both the prosecution and the defense filed appeals — the former did not agree with the acquittal of the MP, and the latter — with the conclusion of fraud on the part of Koliesnikov. The prosecution asked to sentence Koliesnikov to 4 years in prison with deprivation of the right to hold office for 3 years, as well as a fine of UAH 17,000. The defense, in turn, asked to exclude the court’s indication on fraud from the text of the verdict.
After 10 months of consideration in the appellate instance, the case again returns to the first instance, and, according to the panel of judges of the HACC Appeals Chamber, the reason for this was a significant violation of the criminal law. Namely, the court, making an acquittal of a crime under Art. 364 of the Criminal Code of Ukraine (abuse of power and official position), cannot draw conclusions about a person being guilty of committing a crime under Art. 190 of the Criminal Code of Ukraine (fraud).
Not the whole panel agreed with this conclusion; Serhii Bodnar, the judge of the panel, came out with a separate opinion. It was not announced at the hearing.
Thus, the Appeals Chamber added another ruling to the “collection” of cases on housing compensation payments to MPs. This ruling is an additional confirmation that the judicial practice in cases of housing compensation to MPs remains ambiguous.
The Joint Chamber of the Criminal Cassation Court can put the matter to rest, which has considered a similar case of ex-MP Ruslan Solvar since July 18, whom the first instance of the HACC acquitted, whereas the appellate instance, under the chairmanship of HACC AC Judge Serhii Bodnar, convicted the MP.
The shortcomings of the procedure for crediting compensation to MPs and the ambiguous interpretation of Article 364 of the Criminal Code of Ukraine led to the adoption of various decisions by the HACC on the cases of MPs, which we mentioned here.