Voluntary compensation for harm or elimination of damage caused as a circumstance that mitigates the punishment: on the question of scope

Abstract

The article is devoted to the study of one of the mitigating circumstances provided for in Point 2 of Part 1 of Article 66 of the Criminal Code of Ukraine, – voluntary compensation for harm or elimination of damage caused. It is noted that many issues related to this circumstance have been researched by scholars and generally accepted positions have been formulated regarding them. at the same time, the question of the amount of compensation for the harm caused or elimination of the damage caused is ambiguous, since it is not clear whether their partial compensation or elimination is allowed, or, on the contrary, only full compensation or elimination is required. The author, applying different ways of interpreting the text of the criminal law, presented a number of arguments in favor of the fact that such compensation or elimination should only be full, otherwise they cannot be taken into account as a circumstance mitigating the punishment. The opinion is provided that if it is assumed that partial compensation for the harm caused or elimination of the damage caused is as well allowed, then this will lead to problems in law enforcement, since it is impossible to justify compensation or elimination of which part of the harm or damage can be considered sufficient to mitigate the punishment. Another question arises in the context of the provisions of Part 2 of Article 66 of the Criminal Code of Ukraine on the ground of inexhaustibility of the list of mitigating circumstances, in particular, can partial compensation for the harm or elimination of the damage be taken into account as a mitigating circumstance? A negative answer is offered to this question, because it is stated that Part 2 of Article 66 of the Criminal Code of Ukraine refers to circumstances mitigating punishment other than those already provided for by the criminal law. Therefore, the recognition of partial compensation for the harm caused or elimination of the damage caused as a mitigating circumstance will nullify the significance of the circumstance provided for in Point 2 of Part 1 of Article 66 of the Criminal Code of Ukraine, and in general will create prerequisites for a too broad interpretation of other circumstances provided for by law.