Information regarding the regulatory resolution of the Constitutional Court
(№31 of 3 October 2023)
The Constitutional Court considered a citizen's application to verify the constitutionality of a note in Article 214 of the Criminal Code (hereinafter – the CC).
According to the note of the Article, a person who has committed for the first time an act envisaged by part one of this Article shall be exempted from criminal liability in case of voluntary reparation of damage.
The subject of the appeal was criminally prosecuted for illegal entrepreneurship committed by exchanging unsecured digital assets (cryptocurrencies) with large-scale income and, in his opinion, the contested note of the article does not comply with the Constitution, as it cannot be applied to persons whose criminal cases do not involve damage and whose acts involve the extraction of income on a large scale, which puts them in an unequal position with perpetrators who have caused damage and voluntarily compensated for it.
The Constitutional Court considers that the introduction of notes in the articles of the Criminal Code is aimed at clarifying certain concepts, establishing the scope and amount of harm, damage or determining the conditions for exemption from criminal liability in relation to a particular article. The commission of unlawful acts involving the extraction of income on a large scale or the production, storage, transport or sale of excisable goods on a significant scale, even if committed for the first time, do not fall under the rules of the note to Article 214 of the Criminal Code and do not contravene the principle of equality of all before the law, as the application of the said note does not depend on who committed the criminal offence causing major damage, liability for which is provided for by the said article. At the same time, the disposition of Article 214 of the CC emphasises the legislator's attention to its further legislative improvement. It is unnecessarily cluttered with several alternative acts related to illegal entrepreneurial activity, banking activity (banking operations), microfinance and collection activities, which can be differentiated in separate norms of the Criminal Code.
The Constitutional Court has recognised the note of Article 214 of the Criminal Code as being in conformity with the Constitution and recommended that the Government consider amending and supplementing the Criminal Code and other laws.