When the court can mitigate punishment under Article 69-1 of the Criminal Code – explanation by the Grand Chamber of the Supreme Court

The presence of at least one of the circumstances specified in paragraphs 1 and 2 of part 1 of Article 66 of the Criminal Code of Ukraine that mitigate punishment, the absence of circumstances that aggravate punishment, and the defendant's admission of guilt are mandatory grounds for imposing a milder punishment under Article 69-1 of the Criminal Code of Ukraine.

Part 1 of Article 69-1 of the Criminal Code of Ukraine is applied only if the following grounds are mandatorily present:

a) the presence of at least one mitigating circumstance from paragraphs 1 and 2 of part 1 of Article 66 of this Code;

b) the absence of circumstances that aggravate punishment;

c) the defendant's admission of guilt.

These conclusions were made by the Grand Chamber of the Supreme Court.

In this case, a citizen of Ukraine was accused under parts 2 and 3 of Article 307, part 2 of Article 311 of the Criminal Code of Ukraine (crimes related to illegal trafficking of narcotic drugs, psychotropic substances, their analogues, and precursors). By the court's verdict, he was convicted and, for the totality of crimes, was sentenced to imprisonment for 9 years with confiscation of property.

The appellate court amended the verdict of the first instance court by excluding the qualification of the defendant's actions under part 2 of Article 307 of the Criminal Code of Ukraine, leaving the final punishment unchanged.

Appealing the decisions of the lower courts, the prosecutor in the cassation appeal argued that the lower courts unjustifiably did not apply the provisions of Article 69-1 of the Criminal Code of Ukraine (imposition of punishment in the presence of mitigating circumstances).

The Grand Chamber of the Supreme Court took into account that, unlike paragraphs 1 and 2 of part 1 of Article 66 of the Criminal Code of Ukraine, where a comma or the conjunction "or" is used to indicate mitigating circumstances, part 1 of Article 69-1 of this Code uses the conjunction "and," which according to legislative drafting rules is used to combine separate components/characteristics/conditions that only collectively provide grounds for applying the relevant legal rule. Moreover, the title and the norm of part 1 of Article 69-1 of the Criminal Code of Ukraine refer to the imposition of punishment in the presence of circumstances (plural) that mitigate punishment, not a circumstance (singular) that mitigates punishment.

Accordingly, the imposition of punishment taking into account the provisions of part 1 of Article 69-1 of the Criminal Code of Ukraine can only be carried out if there is at least one circumstance defined in paragraph 1 (appearance with confession, sincere repentance, or active assistance in solving the crime) and paragraph 2 (voluntary compensation of damage caused or elimination of harm caused) of part 1 of Article 66 of the Criminal Code of Ukraine, as well as the defendant's admission of guilt and the absence of circumstances that aggravate punishment. The absence of at least one of these components makes it impossible to apply part 1 of Article 69-1 of the Criminal Code of Ukraine.

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

Since in this case no other mitigating circumstances besides sincere repentance were established during the pre-trial investigation or court hearing, the Grand Chamber of the Supreme Court dismissed the cassation appeal and left the decisions of the first and appellate courts unchanged.

Resolution of the Grand Chamber of the Supreme Court dated May 27, 2026, in case No. 214/2983/24.

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