On January 21, 2025, a bill titled “On Amendments to Article 45 of the Criminal Code of Ukraine Regarding the Conditions for Exemption from Criminal Liability in Connection with Sincere Repentance” (No. 12432) was registered in the Verkhovna Rada. Is this initiative relevant?
Yes, the authors propose amending Article 45 of the Criminal Code and adding Part 2 to this article in the following wording:
“A person may not be exempted from criminal liability on the grounds of effective repentance if they have committed two criminal offenses that were separated by a certain period of time and constituted a real aggregate offense.”
In the opinion of the authors of the bill, the need to make these amendments to the legislation on exemption from criminal liability inin connection with effective repentance stems from the fact that courts, when considering cases and rendering decisions, fail to take into account the circumstances that preclude exemption on the basis of Article 45 of the Criminal Code of Ukraine.
According to Article 45 of the Criminal Code, one of the main conditions for applying this provision is that the criminal offense or negligent minor offense must have been committed for the first time. However, as the authors of the bill point out, this provision does not address the issue of exemption from criminal liability due to effective repentance in cases of repeat offenses, concurrent offenses, or recidivism.
Thus, in Case No. 761/1571/23, the Criminal Court of Cassation concluded that the appellate court had misapplied Ukrainian criminal law when rendering its decision.
The appellate court applied the provisions of Article 45 of the Criminal Code, which were not applicable because the materials of the criminal proceedings indicated that the pretrial investigation authority had charged the individual with committing two criminal offenses that were separated by a certain period of time and constituted a “real concurrence,” which precludes the possibility of exempting the individual from criminal liability under Article 45 of the Criminal Code.
It was precisely the conclusions of this Supreme Court ruling that formed the basis for justifying the need to amend Article 45 of the Criminal Code, since the court also defined the concept of a “real” concurrence, namely:
“A ‘real’ aggregate occurs in cases where a person, through separate acts committed at different times, commits two or more criminal offenses that have different elements and are classified separately, or in a situation where one criminal offense is a prerequisite for the commission of another.”
As of today, courts of first instance, appellate courts, and courts of cassation widely apply the provisions of Article 45 of the Criminal Code and exempt individuals from criminal liability on the grounds of effective repentance when the circumstances provided for in the article are present, namely:
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the commission of a misdemeanor or a negligent non-serious crime for the first time;
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sincere repentance;
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active cooperation in solving the criminal offense;
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remedy of the harm caused.
For example, in Case No. 761/23218/21, the courts at all levels were unanimous in concluding that, despite the prosecutor’s arguments that the application of Article 45 of the Criminal Code was unfounded, all legal grounds existed to exempt the individual from criminal liability on the basis of genuine repentance (see the decisions of the court of first instance, the appellate court, and the court of cassation).
Therefore, despite the drafters’ desire to lend relevance and novelty to this issue, the need to amend Article 45 of the Criminal Code is questionable. After all, as early as 2005, the Plenum of the Supreme Court of Ukraine issued Resolution No. 12 dated December 23, 2005, “On the Practice of Application by Ukrainian Courts of Legislation on Exemption from Criminal Liability.”
Paragraph 3 of this resolution states: “A person who has committed a crime for the first time is one who has not previously committed any crimes or has previously committed a crime that has already lost its legal significance. The commission of a continuing or repeated crime, or two or more minor offenses that constitute a combination of offenses (with the exception of a “real” combination), shall not preclude the application of Article 45 of the Criminal Code of Ukraine.”
In addition, the Supreme Court has repeatedly defined the concept of “actual” concurrence in its rulings when considering cases regarding the exemption of individuals from criminal liability.
Thus, the Supreme Court’s ruling of August 12, 2020, in Case No. 127/31068/19, states:
“A ‘real’ concurrence of offenses occurs when a person, at different times, commits two or more crimes through several distinct and separate acts. Each of the crimes constituting the concurrence is classified separately under the relevant article (or part of an article) of the Criminal Code.”
Thus, judicial practice regarding the interpretation of the concept of “actual” concurrence in the context of determining whether a person may be exempted from criminal liability is well-established and well-defined, and the relevance of the aforementioned draft law is questionable.
Author: Barrister Vadim Kolokolnikov
Source: https://zib.com.ua/ua/165742-udoskonalennya_proceduri_zvilnennya_vid_kriminalnoi_vidpovid.html?fbclid=IwY2xjawIr4-VleHRuA2FlbQIxMAABHbIRLQdpqMSzd7FqA-D36SBTqUlQsxFpJNIFtJYDnh-Agz1-J6DzaorCZg_aem_p8PHHJ9GwYC6-edSOwKLuQ