Voluntary compensation for damage or elimination of damage caused in the process of restorative justice as a mitigating circumstance

The article analyzes the concept of circumstances that mitigate the responsibility of the guilty person and are taken into account by the court during the implementation of the restorative justice procedure. The content of the circumstance that mitigates the responsibility of the guilty person has been clarified, namely compensation for the damage caused and the damage caused, which in the process of releasing a person from criminal responsibility is the main prerequisite for the release provided for in Art. 46 of the Criminal Code of Ukraine. It was established that the voluntary action of the guilty party is related to the compensation of the damage caused and the damage caused is not only a circumstance that mitigates the punishment, but also a prerequisite for release from criminal liability in the order of reconciliation between the guilty party and the victim. A comparative legal analysis of national and foreign criminal legislation was carried out, which regulates the application of circumstances mitigating punishment and responsibility, which made it possible to identify the common and distinctive features of the consideration of mitigating circumstances by the court, both in the case of exemption from punishment and exemption from criminal responsibility. The author’s approach is proposed to take into account such a circumstance that mitigates the punishment, such as voluntary compensation for the damage caused or elimination of the damage caused when applying to the convicted person exemption from punishment in accordance with Art. 81 and 82 of the Criminal Code of Ukraine. At the same time, it is emphasized that the Criminal Code of Ukraine does not contain an exhaustive list of circumstances mitigating and aggravating criminal responsibility, it is considered necessary to make a clear distinction between mitigating and aggravating circumstances, which are used to individualize punishment and differentiate criminal responsibility. It has been established that by their legal nature, mitigating and aggravating circumstances must be distinguished from the same (similar) main, privileged and qualified elements of a criminal offense provided for by the Special Part of the Criminal Code of Ukraine.