Discharge from criminal liability in view of reconciliation of the offender and the victim (Art. 46 of the CC of Ukraine): analysis of legal positions of the Supreme Court

The article analyzes the positions of the Supreme Court regarding discharge from criminal liability in view of reconciliation of the offender and the victim. It is noted that the interpretation of the conditions of the discharge, namely the commission of a first-time minor offence or reckless minor crime, is not controversial and the judicial practice in this case is unanimous. Instead, it is stated that the interpretation of the grounds for the specified type of discharge in judicial practice contains contradictions, and there are also issues that are still unresolved. It is stated that the legal positions regarding the understanding of the concept of «reconciliation» are consistent. It is noted that the death of the victim excludes the possibility of reconciliation, however, the issue of the possible expression of the will to reconcile by a minor, juvenile, incapacitated or limitedly capable victim remains unresolved. Decisions of the Supreme Court in cases of discharge from criminal liability under Art. 46 of the Criminal Code of Ukraine for an offender who has committed a criminal offence against public order are mentioned. It is noted that there is no unambiguous answer as to whether this type of discharge is possible in criminal offenses that cause or pose a real threat of causing significant harm not only to individuals, but also to the public interest, nevertheless, the possibility of applying this type of discharge in such cases has not been denied. It is concluded that in cases where the criminal offence has not caused harm or damages, application of Art. 46 of the Criminal Code of Ukraine is possible without establishing the specified ground for discharge. It is specified that reimbursement of damages or elimination of harm may be incomplete upon agreement with the victim. It is noted that the issues of the victim’s ability to refuse compensation, as well as to reach an agreement on reimbursement in the future, remain unresolved. The authors also mention the positions of the Supreme Court stating that discharge from criminal liability in view of reconciliation of the offender and the victim is a mandatory type of discharge.