Legal Opinion of the SC Grand Chamber as for Discharge from Liability Due to Reconciliation between Offender and Victim

Right to reconciliation pursuant to Article 46 of the Criminal Code of Ukraine is a personal right of victim. It may not be assumed by anybody and may not be delegated to anybody. Such a right is natural right of an individual; it is intrinsically linked to the individual and results from other human rights, particularly, the right to life. Application of right to reconciliation by other individuals (including those, who are recognized as victims of a criminal offence in criminal procedure aspect) is impossible, since such right is closely linked to an individual, who directly suffered from the commitment of a criminal offence as for him/her. While the reconciliation only the victim may express his/her will, but not his/her representatives or legal successor.

By ruling of court of the first instance confirmed by ruling of appeal court, the accused was discharged from criminal liability for commitment of criminal offence provided by Part 2 of Article 140 of the Criminal Code of Ukraine, due to reconciliation between the guilty and the victim, and the criminal proceeding was closed.

It was found that the accused, while holding a post of anesthesiologist, being on duty in anesthesia-emergency department of the hospital, provided a child with specialized medical aid. As a result of improper performance of professional duties and because of careless attitude, herewith, having sufficient qualification, he did not apply these knowledge and skills while providing with adequate medical aid, contrary to conventional technique of catheterization of subclavian vessels he carelessly conducted medical manipulation – paracentesis of left subclavian vena by hypodermic needle to install a catheter, which caused serious consequences – death of the victim.

Since the analysis of the case law of the application of Article 46 of the Criminal Code of Ukraine in cases, when a victim’s death is caused by the offence, indicates that it is not uniform, the case contains an exclusive legal issue, the solution of which is necessary for ensuring the development of law and formation of unified law-enforcement practice.

The Grand Chamber of the Supreme Court considers that the concept “victim”, noted in Article 46 of the Criminal Code of Ukraine, is applied in its criminal-legal sense but not in criminal-procedure one. I.e. the victim is an individual, who suffers from physical, moral and/or material damage directly caused by criminal offence (or there is a direct threat of its commitment). The victim may express his/her will regarding forgiveness of the guilty, on the grounds of which a court may issue a judgment on closing criminal proceedings and discharging the individual from criminal liability, pursuant to Article 46 of the Criminal Code of Ukraine.

If the commitment of criminal offence lead to the victim’s death, no one else may express his/her will while solving the issues on the compensation of damage in the form of death as grounds for the discharge from criminal liability, pursuant to Article 46 of the Criminal Code of Ukraine.

Thus, the death, as the termination of the existence of one of full legal subjects of criminal-legal relations on the reconciliation between the guilty and the victim in terms of Article 46 of the Criminal Code of Ukraine, makes it impossible to perform such reconciliation.

The damage caused by criminal offence, in terms of Article 46 of the Criminal Code of Ukraine, shall correspond to that one, which, by its nature, may be refundable (eliminated). The deprivation of human life is an irreversible consequence. Therefore, the damage in the form of death shall not be refunded or eliminated in terms of Article 46 of the Criminal Code of Ukraine.

At the same time, such interpretation of victim in Article 46 of the Criminal Code of Ukraine does not exclude the application of norm of criminal procedure law, which provides the possibility of recognition of close relatives of family members as victims, instead of the deceased (part 6 of Article 55 of the Criminal Procedure Code of Ukraine). The non-recognition of victim’s – participant’s of criminal process right to reconciliation in the context of Article 46 of the Criminal Code of Ukraine shall not mean the loss of his/her right to the compensation of caused damages. Any damage caused by criminal offence may and shall be timely and completely refunded irrespectively on the fact, whether the reconciliation took place; this situation may have impact on further criminal-legal consequences while the imposition of punishment, and on terms of its serving, including with exempt from its serving.

The SC Grand Chamber concluded that in case of causing damage by criminal offence in the form of victim’s death, the discharge from criminal liability due to the reconciliation between the guilty and the victim is impossible in the context of Article 46 of the Criminal Code of Ukraine.

Follow the link http://www.reyestr.court.gov.ua/Review/79298600 to see the full text of the Resolution of the Grand Chamber of the Supreme Court in the case No. 439/397/17 (proceedings No. 13-66кс18).