If Several Crimes Are In One Proceeding, Reconciliation with the Victim Will Not Help — Supreme Court

The Supreme Court, by a panel of judges of the Third Judicial Chamber of the Cassation Criminal Court, in the composition following the consideration of case No. 371/111/25, annulled the decisions of the courts of first and appellate instances that released two defendants from criminal liability for illegal entry into a dwelling due to reconciliation with the victim. The Court concluded that the application of Article 46 of the Criminal Code is impossible if a person is charged with a real combination of several criminal offenses in one criminal proceeding.

According to the case materials, two men were accused of illegal entry into a dwelling committed by a group of persons by prior conspiracy (Part 2 of Article 28, Part 1 of Article 162 of the Criminal Code of Ukraine), as well as intentional minor bodily injury (Part 1 of Article 125 of the Criminal Code of Ukraine).

Decisions of the courts of first and appellate instances

The Myronivka District Court of Kyiv region released both defendants from criminal liability for the episode of illegal entry into the dwelling under Article 46 of the Criminal Code of Ukraine due to reconciliation with the victim and closed the proceedings in this part.

At the same time, the consideration of the charge under Part 1 of Article 125 of the Criminal Code of Ukraine was continued. The Kyiv Court of Appeal left this decision unchanged.

The prosecutor, in the cassation appeal, indicated that releasing the defendants from criminal liability was an incorrect application of Ukrainian criminal law, since this norm can be applied to a person who committed a criminal offense or negligent minor crime for the first time. However, the defendants were charged with committing two criminal offenses with signs of their real combination, committed at different times, with different objects of encroachment and different victims, which, according to the prosecutor, makes the application of Article 46 of the Criminal Code of Ukraine impossible.

Position of the Supreme Court

The Supreme Court recognized the prosecutor's arguments that the courts of first and appellate instances unjustifiably released the defendants from criminal liability under Part 2 of Article 28, Part 1 of Article 162 of the Criminal Code of Ukraine based on Article 46 of the Criminal Code of Ukraine.

The Court noted that Article 46 of the Criminal Code of Ukraine provides for the possibility of release from criminal liability only if certain conditions prescribed by law are met, one of which is that the person committed a criminal offense or negligent minor crime for the first time.

At the same time, the Supreme Court drew attention to the fact that when applying Articles 46, 33, and 35 of the Criminal Code of Ukraine, the principle of presumption of innocence must be taken into account, according to which the guilt of a person can only be established by a guilty verdict of the court.

The Court also noted that it is necessary to distinguish the peculiarities of applying Article 46 of the Criminal Code of Ukraine in cases when a person is charged with several independent criminal offenses in one criminal proceeding and when such offenses are the subject of different criminal proceedings.

If at the time of deciding on the application of Article 46 of the Criminal Code of Ukraine other acts of the person are being investigated or considered in another criminal proceeding and there is no guilty verdict regarding them, the court may consider the act that is the subject of the specific proceeding as committed for the first time. Otherwise, the court would effectively give a legal assessment of acts that are not the subject of consideration, which would contradict the principle of presumption of innocence. This approach corresponds to the legal conclusion of the United Chamber of the Cassation Criminal Court of the Supreme Court set out in the ruling dated September 14, 2020, in case No. 591/4366/18.

At the same time, if several criminal offenses are considered in one criminal proceeding, the presence of signs of a real combination makes the application of Article 46 of the Criminal Code of Ukraine impossible.

Also, the Supreme Court emphasized that the mere fact of committing a criminal offense for the first time does not create grounds for release from criminal liability due to reconciliation with the victim if another independent criminal offense is charged against the person in the same criminal proceeding.

In this case, as established by the Supreme Court, according to the indictment, on November 9, 2024, at about 20:45, the defendants illegally entered a dwelling, and about five minutes later at the same address caused minor bodily injuries to two victims. These separate acts were qualified under Part 2 of Article 28, Part 1 of Article 162, and Part 1 of Article 125 of the Criminal Code of Ukraine and constituted a real combination of criminal offenses within the meaning of Article 33 of the Criminal Code of Ukraine.

The Court stressed that according to Article 35 of the Criminal Code of Ukraine, the combination of criminal offenses is taken into account not only during qualification and sentencing but also when deciding on the possibility of releasing a person from criminal liability.

According to the Supreme Court's conclusion, the local court incorrectly applied the provisions of Article 46 of the Criminal Code of Ukraine, which led to the unjustified release of the defendants from criminal liability and the closure of the criminal proceedings in this part. The appellate court, in turn, did not eliminate these violations and mistakenly agreed with the conclusion about the possibility of considering the criminal offense under Part 2 of Article 28, Part 1 of Article 162 of the Criminal Code of Ukraine as committed for the first time only due to the absence of a guilty verdict under Part 1 of Article 125 of the Criminal Code of Ukraine.

The Cassation Criminal Court also emphasized that both charges were considered within one criminal proceeding, and therefore the local court was not authorized to create procedural conditions for applying Article 46 of the Criminal Code of Ukraine by effectively separating individual episodes that formed a real combination of criminal offenses.

In view of this, the Supreme Court concluded that the courts of previous instances incorrectly applied the Ukrainian criminal law and committed a significant violation of the requirements of the criminal procedural law, which became the basis for annulling their decisions and appointing a new trial in the court of first instance.

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