Certain aspects of reconciliation between the offender and the victim in case of committing criminal offences against public order and morality

Abstract

Reconciliation between the offender and the victim of the criminal offence is grounds for discharge from criminal liability and considered as a more humane method of achieving the objective of criminal justice. The institution of reconciliation under the law on criminal liability differs from the institution of agreements provided in accordance with the criminal procedural legislation. The correlation of these two institutions, in particular, is considered in view of the victim determination and the moment victim status acquired.

The reassessment of the consequences of the victim’s status under the law on criminal liability led to the formation of a law enforcement practice that made reconciliation in the criminal sense impossible in case of committing of certain types of criminal offenses (e.g. mugging). Taking into account absence of any restrictions in the law regarding the reconciliation application in criminal offences against public order and morality the impossibility of applying Article 46 of the Criminal code of Ukraine does not ensure legal certainty and respect for human rights and freedoms.

The article offers possible amendments to the provisions of Article 46 of the Criminal code of Ukraine by supplementing the law with the new condition (prohibition) for the application of reconciliation as grounds for discharge from criminal liability if the identification of all victims of the criminal offence is impossible.

Particular attention is focused on insufficiency of the amendments through determination of the “public interest” since its application may be problematic in practice. The issue is based on the variety of approaches to defining the category “public interest”. Furthermore, case law interprets this concept in view of the definition of the “private interest”.