The Grand Chamber of the Supreme Court departed from the 2016 position as for Article 69-1 of the Criminal Code: sincere repentance is not enough

The issue of applying Article 69-1 of the Criminal Code of Ukraine has sparked discussions in judicial practice, especially in cases where the criminal offense did not actually cause damage or harm to a specific victim.

Recall that earlier "Judicial and Legal Newspaper" reported on the transfer of case No. 214/2983/24 to the Grand Chamber of the Supreme Court for consideration to resolve the issue of departing from the conclusion of the Supreme Court of Ukraine regarding the application of Article 69-1 of the Criminal Code of Ukraine in cases where the crime did not cause damage or harm.

In the ruling dated May 27, 2026, in case No. 214/2983/24, the Grand Chamber of the Supreme Court examined the conditions for applying this provision and formulated a binding conclusion for law enforcement.

The court also departed from the conclusion of the Supreme Court of Ukraine set out in the ruling dated April 14, 2016, in case No. 5-23кс(15)16.

Circumstances of the case

The local court found the defendant guilty of illegal acquisition, storage, and transportation for sale of psychotropic substances and precursors, as well as illegal acquisition and storage of precursors. He was sentenced to nine years imprisonment with confiscation of property.

During sentencing, the court recognized sincere repentance as a mitigating circumstance, did not establish aggravating circumstances, but did not apply the provisions of Article 69-1 of the Criminal Code of Ukraine.

The appellate court agreed with this approach. Subsequently, the prosecutor filed a cassation appeal, arguing that in the presence of sincere repentance, admission of guilt, and absence of aggravating circumstances, the courts should have applied the special sentencing rules provided by Article 69-1 of the Criminal Code of Ukraine.

Position of the Grand Chamber of the Supreme Court

The court emphasized that according to part one of Article 69-1 of the Criminal Code of Ukraine, when there are mitigating circumstances provided by points 1 and 2 of part one of Article 66 of this Code, absence of aggravating circumstances, and admission of guilt by the accused, the term or size of the sentence cannot exceed two-thirds of the maximum term or size of the most severe type of punishment provided by the relevant sanction of the article (part of the article) of the Special Part of this Code.

The Grand Chamber noted that analysis of part one of Article 69-1 of the Criminal Code of Ukraine indicates that the basis for its application is a combination of the following conditions: 1) presence of mitigating circumstances provided by points 1 and 2 of part one of Article 66 of this Code; 2) absence of aggravating circumstances; 3) admission of guilt by the accused.

The wording of point 1 of part one of Article 66 of the Criminal Code of Ukraine, using a comma and the conjunction "or," indicates that it provides for three independent circumstances that mitigate the imposed punishment: 1) appearance with confession; 2) sincere repentance; 3) active assistance in solving the criminal offense.

The presence of at least one of these circumstances in the context of Article 66 of the Criminal Code of Ukraine is sufficient grounds to be taken into account by the court when sentencing.

The court also noted that according to point 2 of part one of Article 66 of the Criminal Code of Ukraine, mitigating circumstances when sentencing include voluntary compensation for damage caused or elimination of the harm caused.

That is, the wording of this point of part one of Article 66 of the Criminal Code of Ukraine, using the conjunction "or," indicates that it provides for two independent circumstances that mitigate the imposed punishment: 1) voluntary compensation for damage caused; 2) voluntary elimination of harm caused.

The Grand Chamber pointed out that unlike points 1 and 2 of part one of Article 66 of the Criminal Code of Ukraine, where commas or the conjunction "or" are used to denote mitigating circumstances, part one of Article 69-1 of this Code uses the conjunction "and", which according to legislative drafting rules is used to combine separate components/features/conditions that only in their totality provide grounds for applying the relevant legal provision.

Also, the title and part one of Article 69-1 of the Criminal Code of Ukraine speak about the imposition of punishment in the presence of circumstances (plural) that mitigate punishment, not a circumstance (singular) that mitigates punishment.

According to the Grand Chamber, point 2 of part one of Article 66 of the Criminal Code of Ukraine covers actually caused harm and damage to the victim as a result of a criminally unlawful act, not "harm" which consists only in the fact of violating a criminal law prohibition.

Thus, sentencing considering the provisions of part one of Article 69-1 of the Criminal Code of Ukraine can be carried out only if there is at least one circumstance provided by point 1 (appearance with confession, sincere repentance, or active assistance in solving the crime) and point 2 (voluntary compensation for damage caused or elimination of harm caused) of part one of Article 66 of the Criminal Code of Ukraine, as well as admission of guilt by the accused and absence of aggravating circumstances.

The absence of at least one of these components excludes the application of part one of Article 69-1 of the Criminal Code of Ukraine.

That is, regardless of the construction of the criminal offense (material, formal, truncated), the court is obliged to establish whether there are factual grounds for applying the mitigating circumstance provided by point 2 of part one of Article 66 of the Criminal Code of Ukraine.

This means that the case materials must contain evidence that harm (material or non-material) existed and was eliminated. If harm was not caused, then the condition of point 2 of part one of Article 66 of the Criminal Code of Ukraine is not met, and therefore there are no grounds for applying Article 69-1 of the Criminal Code of Ukraine.

At the same time, in the ruling dated April 14, 2016, in case No. 5-23кс(15)16, the Supreme Court of Ukraine concluded that Article 69-1 of the Criminal Code of Ukraine may be applied in the presence of sincere repentance and absence of aggravating circumstances even when the crime did not cause damage or harm.

This approach was justified by the court by the fact that the degree of social danger of crimes without causing harm is lower. However, the Grand Chamber noted that these reasons are indisputable when it comes to criminal offenses with a material composition, where the basis of criminalization is precisely causing socially dangerous consequences.

At the same time, Article 68 of the Criminal Code of Ukraine, in order to implement the principle of differentiation and individualization of criminal liability, establishes special sentencing rules for an unfinished criminal offense when it was not completed for reasons beyond the control of the guilty person, including cases where socially dangerous consequences provided by the disposition of the article of the Special Part of the Criminal Code of Ukraine did not occur.

Thus, this does not exclude the possibility of applying the provisions of Article 69-1 of the Criminal Code of Ukraine in cases of criminal offenses with formal or truncated compositions.

However, in such cases, it is also necessary to establish the fact of causing and eliminating harm or compensating for damage.

The Grand Chamber emphasized that the application of Article 69-1 of the Criminal Code of Ukraine requires establishing and confirming by evidence the fact of compensation for damage or elimination of harm caused.

In this regard, the court departed from the conclusion of the Supreme Court of Ukraine set out in the ruling dated April 14, 2016, in case No. 5-23кс(15)16, according to which when sentencing with the application of Article 69-1 of the Criminal Code of Ukraine, voluntary compensation for damage caused or elimination of harm is not taken into account if such damage or harm was not caused in the criminal proceedings.

Based on the above, the Grand Chamber of the Supreme Court left unchanged the decisions of the lower courts and denied the prosecutor's cassation appeal.

This decision by the Grand Chamber of the Supreme Court effectively formed a new approach to the application of Article 69-1 of the Criminal Code of Ukraine, which will be significant for further sentencing practice in criminal proceedings.

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