Reconciliation as one of the conditions for release from criminal liability based on Art. 46 of the Criminal Code is the final result of all previous conciliation procedures and agreements between the guilty party and the victim, which consists, on the one hand, in the voluntary manifestation of the victim's will, which is manifested in his request (petition) for the release of the guilty party from criminal liability on the basis of Art. 46 of the Criminal Code or in the absence of objections to such release, and on the other hand in the absence of objections to such release by the suspect, the accused.
The fact of reconciliation must be confirmed by the victim in court. If this fact was not confirmed, then exemption from criminal liability based on Art. 46 of the Criminal Code is not allowed. This was emphasized by the Supreme Court by the panel of judges of the First Judicial Chamber of the Criminal Court of Cassation when considering case No. 715/2106/20 .
Thus, a person who for the first time committed a crime of minor gravity or a careless crime of medium gravity, except for corruption crimes, is released from criminal responsibility if he reconciled with the victim and compensated for the damage caused by him or removed the damage caused.
Therefore, in order for the court to make a decision to release the accused from criminal liability in connection with the reconciliation of the guilty party with the victim, a set of the following conditions is necessary:
- committing a crime for the first time;
- the committed act belongs to crimes of minor gravity or careless crimes of medium gravity, except for corruption crimes;
- reconciliation of the person who committed such a crime with the victim;
- compensation for damages caused by it or elimination of the damage caused.
At the same time, according to the established judicial practice, the reconciliation of the guilty person with the victim (victims) should be understood as an act of forgiveness by him (them) as a result of a free expression of will, which excludes any undue influence, regardless of which of the parties was the initiator and of which motives (clause 4 of the resolution of the Plenum of the Supreme Court of Ukraine No. 12 of December 23, 2005 "On the practice of application by the courts of Ukraine of the legislation on the release of a person from criminal responsibility").
In addition, in accordance with Part 3 of Art. 285 of the Criminal Procedure Code, in the event that the suspect or accused, for whom exemption from criminal responsibility is provided, objects to this, the pre-trial investigation and court proceedings shall be conducted in full in the general manner.
In other words, under reconciliation as one of the conditions for the release of the person who committed the crime from criminal liability based on Art. 46 of the Criminal Code, reconciliation should be understood as the final result of all previous reconciliation procedures and agreements between the perpetrator and the victim, which consists, on the one hand, in the victim's voluntary expression of will, which is manifested in his request (petition) for the release of the perpetrator from criminal liability on the basis of Art. 46 of the Criminal Code or in the absence of objections to such dismissal, and on the other hand – in the absence of objections to such dismissal from the suspect, the accused himself.
At the same time, taking into account the provisions of Art. 46 of the Criminal Code and part 2 and part 3 of Art. 288 of the Criminal Procedure Code in their relationship, in order to establish the fact of such reconciliation, it is mandatory for the victim to confirm his position in court, which serves as an important procedural guarantee of ensuring the voluntariness of his expression of will.
Based on the above normative provisions, the panel of judges came to the conclusion that a mandatory procedural condition for establishing such grounds for exemption from criminal liability as "reconciliation of the person who committed the crime with the victim" (Article 46 of the Criminal Code) during the consideration of the relevant issue in the court there is confirmation of the fact of the reconciliation of the guilty party with the victim, in particular, during the clarification of the victim's opinion regarding the possibility of releasing the accused from criminal responsibility on this basis.