The Court of Appeal explained why family relationships cannot be taken into account twice when sentencing for domestic violence

Domestic violence belongs to criminal offenses for which the law provides not only punishment but also special measures of influence on the offender. At the same time, when imposing a sentence, courts must comply with the legal requirements regarding the correct consideration of circumstances that mitigate or aggravate responsibility. The same circumstance, if it is already a mandatory element of the criminal offense, cannot be taken into account again as an aggravating factor. The Kherson Court of Appeal drew attention to this after reviewing the verdict in case No. 766/16057/25 concerning domestic violence.

Circumstances of the case and arguments of the appeal

The panel of judges considered the prosecutor's appeal against the verdict of the local court, which found the person guilty of committing domestic violence under Article 126-1 of the Criminal Code of Ukraine and imposed a sentence in the form of community service.

The court of first instance established that the accused systematically committed psychological violence against the victim, with whom he was in a family relationship. Such actions caused psychological suffering, negative psycho-emotional changes, and deterioration in the victim's quality of life. In addition to the punishment, a restrictive measure was applied to the convicted person – referral to undergo a program for offenders in accordance with paragraph 5 of part one of Article 91-1 of the Criminal Code of Ukraine.

The prosecutor did not dispute the proven guilt of the person or the imposed punishment but requested to change the verdict in terms of reasoning. In particular, the appellant noted that the court of first instance unjustifiably recognized as an aggravating circumstance the commission of a criminal offense against a person with whom the offender is in family or close relationships, as provided by paragraph 6-1 of part one of Article 67 of the Criminal Code of Ukraine.

Position of the Court of Appeal

The Court of Appeal agreed with these arguments. The panel of judges noted that according to part four of Article 67 of the Criminal Code of Ukraine, if a certain circumstance is already provided for in the Special Part of the Criminal Code of Ukraine as a feature of a criminal offense and affects its qualification, the court cannot take it into account again when imposing a sentence as an aggravating factor.

Since the offender's and victim's family relationship is a mandatory element of the criminal offense under Article 126-1 of the Criminal Code of Ukraine, this same circumstance cannot additionally be recognized as aggravating. This approach corresponds to the general principle of inadmissibility of double consideration of the same circumstance in the criminal-legal assessment of the act and sentencing.

The Court of Appeal also noted that according to Article 370 of the Criminal Procedure Code of Ukraine, a court decision must be lawful, justified, and reasoned, and according to part three of Article 374 of the Criminal Procedure Code, the reasoning part of the verdict must correctly indicate the circumstances that mitigate or aggravate the punishment.

Decision

Moreover, the appellate court acted within the limits of the appeal in accordance with part one of Article 404 of the Criminal Procedure Code and took into account that changing the verdict does not worsen the position of the accused, which is consistent with paragraph 4 of part one of Article 408 of the Criminal Procedure Code. Incorrect application of the law of Ukraine on criminal liability, according to paragraph 2 of part one of Article 413 of the Criminal Procedure Code, is grounds for changing the court decision.

As a result of the appellate review, the Kherson Court of Appeal satisfied the prosecutor's appeal, changed the verdict of the Kherson City Court of Kherson Region dated 02.02.2026 – the reference to the aggravating circumstance provided by paragraph 6-1 of part one of Article 67 of the Criminal Code of Ukraine was excluded from its reasoning part. In other respects, the verdict remains unchanged.

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