Supreme Court on crediting house arrest to the sentence term: one day cannot be counted twice

On July 16, 2026, the First Judicial Panel of the Cassation Criminal Court within the Supreme Court considered case No. 750/645/24 concerning a person convicted of fraud and, in particular, reviewed the correctness of crediting periods of pre-trial detention and 24-hour house arrest to the sentence term.

Case circumstances

In November 2023, an unidentified person called the victim, claiming to be a doctor from Moscow, and informed him that his daughter had allegedly been in a car accident and that for her immediate treatment it was necessary to transfer 20,000 USD through a hospital representative.

On the same day, the accused arrived at the victim’s apartment, introduced himself as a representative of the doctor, and received from him 5,000 UAH and 1,500 USD. The total amount of money that he, in prior conspiracy with another person, obtained by deception amounted to 59,652 UAH.

The Desniansky District Court of Chernihiv found the man guilty under Part 2 of Article 190 of the Criminal Code and sentenced him to three years of restriction of liberty, releasing him from serving the sentence with probation.

After cassation review and a new appellate hearing, the Chernihiv Court of Appeal annulled the verdict in terms of the sentence and imposed two years of restriction of liberty without applying Article 75 of the Criminal Code.

At the same time, the appellate court credited to the sentence term the detention from November 30 to December 2, 2023, and 24-hour house arrest from December 2, 2023, to June 5, 2024, indicating a total result of 368 days of restriction of liberty.

The prosecutor appealed this calculation, indicating that the appellate court excessively credited the sentence term. The defense, in turn, insisted on the excessive severity of the sentence and the possibility of releasing the convicted person from serving it with probation.

Supreme Court’s position

The court noted that the term "manifestly unfair punishment" does not mean any possible difference in assessing the type and size of the punishment from the court’s perspective, but a difference of a fundamental nature in such assessment.

This provision points to a significant disproportion, inadequacy between the type and size of punishment determined by the court, even within the relevant article’s sanction, and the type and size of punishment that should have been imposed considering the circumstances subject to proof, including those to be taken into account when sentencing.

Thus, the legislator defined that manifestly unfair punishment due to leniency or severity can be specifically by type or size. According to the panel of judges, the defense’s position stated in the cassation appeal regarding the severity of the sentence imposed on the convicted person is unfounded.

The Supreme Court indicated that according to subparagraph "b" of paragraph 1 of part 1 of Article 72 of the Criminal Code, one day of imprisonment corresponds to two days of restriction of liberty.

Since March 28, 2024, the Law of Ukraine dated August 23, 2023, No. 3342-IX came into force, which supplemented Article 72 of the Criminal Code with part 7, according to which the court credits house arrest to the sentence term according to the rules provided in part 1 of this article, in the ratio of three days of 24-hour house arrest corresponding to one day of imprisonment.

The court also reminded that according to part 1 of Article 5 of the Criminal Code, a criminal law that abolishes the criminal illegality of an act, mitigates criminal liability, or otherwise improves the position of a person has retroactive effect.

The Supreme Court established that 24-hour house arrest was applied to the accused on December 2, 2023. After the local court’s verdict became final on June 5, 2024, following the first appellate hearing, this preventive measure ceased and was no longer applied, even after the Supreme Court annulled the corresponding appellate court ruling.

The court noted that the appellate court, when issuing the verdict after the new hearing, correctly determined the need to credit the detention period and the 24-hour house arrest period, but made a mistake in the calculation, indicating a total term of 368 days of restriction of liberty.

The Supreme Court found justified the crediting of three days of detention — November 30, December 1 and 2, 2023 — calculated as one day of imprisonment corresponding to two days of restriction of liberty. Thus, this period amounts to six days of restriction of liberty.

At the same time, the Supreme Court drew attention to the fact that the prosecutor in his calculation credited December 2, 2023, both to the detention period and to the house arrest period.

The court stated that the same day was credited twice, which is not provided for by the current provisions of Article 72 of the Criminal Code.

Meanwhile, the Cassation Criminal Court of the Supreme Court in its decisions emphasized the need to apply criminal law provisions in a manner more favorable to the person.

Therefore, the Supreme Court noted that December 2, 2023, should be credited according to the provisions of subparagraph "b" of part 1 of Article 72 of the Criminal Code, since crediting this day according to this norm is a more favorable way for the convicted person to credit the sentence term than the method provided by part 7 of Article 72 of the Criminal Code.

Thus, the Supreme Court defined the period of 24-hour house arrest from December 3, 2023, to June 5, 2024.

The Supreme Court indicated that three days of 24-hour house arrest correspond to two days of restriction of liberty, which amounts to 124 days of restriction of liberty: in total 186 days of house arrest / 3 = 62 days of imprisonment, or 62 × 2 = 124 days of restriction of liberty, but certainly not 368 days.

The Supreme Court also agreed on the possibility to correct such a mistaken calculation without sending the case for a new hearing.

The court noted that by not taking into account the relevant criminal law provisions and not conducting a proper calculation with reasoning in the verdict, the appellate court committed a significant violation of the requirements of the criminal procedural law and, as a result, incorrectly applied part 7 of Article 72 of the Criminal Code.

Regarding the defense’s arguments about the possibility of applying Article 75 of the Criminal Code, the Supreme Court agreed with the appellate court’s conclusion about the lack of sufficient grounds for this. The court took into account that it was a mercenary minor crime, the appropriation of 59,652 UAH, and deprivation of funds from an elderly victim.

The Supreme Court noted that even the presence of a positive character reference and several mitigating circumstances cannot be recognized as sufficient grounds for applying Article 75 of the Criminal Code and releasing the accused from serving the imposed sentence.

Thus, the Supreme Court partially satisfied the prosecutor’s cassation appeal and changed the appellate court’s verdict. The sentence term credited to the convicted person includes pre-trial detention from November 30 to December 2, 2023, as six days of restriction of liberty and 24-hour house arrest from December 3, 2023, to June 5, 2024, as 124 days of restriction of liberty.

The key practical significance of the ruling lies in the approach to applying parts 1 and 7 of Article 72 of the Criminal Code: one calendar day cannot be credited twice to the sentence term under different rules. If different recalculation rules potentially apply to such a day, the Supreme Court proceeds from the necessity to apply the criminal law in a manner more favorable to the person.

The court left the defense counsel’s cassation appeal unsatisfied, partially satisfied the prosecutor’s cassation appeal, who participated in the appellate court hearing, and left the appellate court’s verdict unchanged in other parts.

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