Here is a detailed analysis of this court decision:
1. The subject of the dispute was the legality of the failure by lower courts to apply the provisions of Article 69-1 of the Criminal Code of Ukraine (imposition of a more lenient sentence) to an individual convicted of crimes in the sphere of illicit drug trafficking, given the presence of only one mitigating circumstance (sincere remorse).
2. The Grand Chamber of the Supreme Court concluded that for the application of Article 69-1 of the Criminal Code of Ukraine, a combination of conditions is required: the presence of mitigating circumstances provided for by both point 1 (e.g., sincere remorse) and point 2 (compensation for damages or remediation of harm) of the first part of Article 66 of the Criminal Code of Ukraine. The Court formally departed from the legal position of the Supreme Court of Ukraine set forth in the resolution of April 14, 2016 (case No. 5-23ks16), which allowed for the application of these special sentencing rules even in the absence of harm that could be remedied. The Grand Chamber emphasized that the legislator used the conjunction “and” in Article 69-1 of the Criminal Code of Ukraine, which requires the presence of both groups of mitigating circumstances. The Court stressed that even in crimes with a formal composition (where there is no direct victim), it is necessary to establish the existence of harm that a person could have remedied. Since only one mitigating circumstance (sincere remorse) was established in the case of PERSON_22, there were no grounds for applying the preferential sentencing procedure. Thus, the lower courts correctly did not apply Article 69-1 of the Criminal Code of Ukraine.
3. The Grand Chamber of the Supreme Court upheld the verdict of the court of first instance and the ruling of the appellate court, and dismissed the prosecutor’s cassation appeal.
