In connection with the full-scale invasion of the Russian Federation on the territory of Ukraine, the attention of practitioners and scientists is focused on committed war crimes and crimes against the foundations of the national security of our state. The issue of the need to amend the Criminal Code of Ukraine to strengthen criminal liability for certain criminally punishable acts committed during martial law is being discussed. These are primarily sections of the Special Part of the Criminal Code of Ukraine: “Crimes against the foundations of the national security of Ukraine” (Chapter I), “Criminal offenses against property” (Chapter VI), “Criminal offenses in the sphere of economic activity” (Chapter VII), ” Criminal offenses against peace, human security and international legal order” (Chapter XX), etc.
The judges of the Supreme Court devoted their attention to these and other issues during the scientific and practical conference “Modern criminal law of Ukraine: constitutional, international legal and comparative legal dimensions”.
Judge of the Supreme Court in the Criminal Court of Cassation Oleksandra Yanovska spoke about the constitutional principles of individualization of criminal responsibility for crimes against the foundations of national security of Ukraine.
According to the speaker, since 2014, the number of threats to the constitutional order, sovereignty, territorial integrity and inviolability of Ukraine has increased. And this question became especially relevant in connection with the full-scale invasion of the Russian Federation into Ukraine. Currently, the issue is being discussed in scientific circles that in order to effectively counter such threats, it is necessary to improve the criminal legislation in the sphere of protection of the foundations of the national security of Ukraine.
Speaking about the individualization of punishment, Oleksandra Yanovska reminded that in Art. 61 of the Constitution of Ukraine states that a person’s legal responsibility has an individual character.
In addition, in the Decision dated June 15, 2022 (No. 4-r(II)/2022), the Constitutional Court of Ukraine once again emphasized that the constitutional principle of individualization of legal responsibility The establishment in acts of public legislation of absolutely defined and (or) non-alternative sanctions should be combined in a balanced way with giving the subject of imposing an administrative fine or criminal penalty discretion in the matter of determining the type and size of the fine or punishment, taking into account the nature of the committed illegal act, the form of guilt, the characteristics of the person, guilty of committing an offense, the possibility of compensation for the damage caused, the presence of circumstances mitigating or aggravating responsibility.
In addition, the Decision of the Supreme Court of Ukraine dated July 21, 2021 (No. 3-р(II)/2021 ) states that the principle of the rule of law, in particular its requirement such as the principle of proportionality, are interconnected fundamental principles of the functioning of the entire legal system of Ukraine. Therefore, specific sanctions must be fair and correspond to the principle of appropriateness, that is, the legislator must determine penalties taking into account their justification and need to achieve a legitimate goal, taking into account the requirements of the adequacy of the consequences caused by such sanctions (including, for the person to whom they are are applied), the damage that occurs as a result of the offense.
Also in this Decision, the KSU emphasized that the fair imposition of punishment in criminal proceedings, taking into account the intensity and danger of its negative impact on the fundamental rights and freedoms of a person, is a mandatory condition for the protection of a person from arbitrariness in a state where the principle of the rule of law operates.
Oleksandra Yanovska drew attention to the fact that according to ch. 2 Art. 65 of the Criminal Code of Ukraine, a person who has committed a criminal offense must be given a punishment that is necessary and sufficient for his correction and prevention of new criminal offenses.
In the context of the concept of punitive justice and restorative justice, certain types of crimes against the foundations of national security require punitive justice, some require restorative justice.
So, the more common is the commission of a crime, the more restorative justice should be (probation supervision is not applied in parts 1, 3 of Art. 111-1 (“Collaborative activity”) of the Criminal Code of Ukraine, although the amendments to this Code, which will enter into force on March 28, 2024, in particular in Article 436 (“Propaganda of war”), ch. 1 Art. 436-2 (“Justification, recognition as legitimate, denial of armed aggression of the Russian Federation against Ukraine, glorification of its participants”), ch. 2 Art. 442 (“Public calls for genocide”) of the Criminal Code of Ukraine provides for a new type of punishment in the form of probation supervision). At the same time, since the crime is less common and more serious, the approach should be more punitive (increased sanctions have already been applied: for the commission of crimes provided for in Part 2 Art. 111 (“Treason”), ch. 2 Art. 113 (“Sabotage”) of the Criminal Code of Ukraine, punishable, in particular, in the form of life imprisonment).
Therefore, in order to individualize the punishment, it is necessary to take into account the purpose of the punishment, the gravity of the offense, the personality of the criminal, the legislator’s idea of the system of criminal sanctions and any other relevant circumstances.
Nataliya Antoniuk, deputy head of the Criminal Court of Cassation as part of the Supreme Court, delivered a report “Criminal law: assessment of the critical need for changes during martial law.”
The speaker drew attention to three blocks of problematic issues related to the introduction of changes to the Criminal Code of Ukraine. The first block concerns amendments to Sec. I “Crimes against the foundations of the national security of Ukraine” of the Special Part of the Criminal Code of Ukraine, the second – amendments to other sections regarding criminal offenses against property, in the field of economic activity, etc. And the third block – regarding the expediency of making changes to the section of the Criminal Code of Ukraine that deals with war crimes (Chapter XX “Criminal offenses against peace, human security and international legal order”).
According to Nataliya Antonyuk, the problem of distinguishing, defining the relationship, qualifying such crimes as treason (Article 111 of the Criminal Code of Ukraine), collaborative activity (Article 111-1 of the Criminal Code of Ukraine), aiding the aggressor state (Article 111- 2 of the Criminal Code of Ukraine). Therefore, it is now important for scientists and practitioners to accumulate their efforts together, to find as many points of contact as possible in this matter, so that most positions are perceived equally by both scientists and practitioners. Scientists need to formulate a clear guideline for the law enforcement officer regarding the qualification of certain acts.
In addition, the deputy head of the CCS of the Supreme Court spoke about the fact that such a change as the appearance of a qualifying feature in criminal offenses against property – their commission in martial law conditions – is currently being actively discussed in the media. Any theft, robbery, robbery committed now, i.e. under martial law, is qualified under part 4 of the corresponding article of the Criminal Code of Ukraine (185, 186, 187). The sanction provided for in part. 4, is much stricter than in the previous parts.
According to the speaker, scientists are debating what the legislator had in mind: the use of martial law conditions by a person or whether it was generally about the martial law imposed on the territory of Ukraine. This issue will soon be the subject of consideration by the joint chamber of the Central Committee of the Supreme Court.
Nataliya Antoniuk also focused on such a problematic issue as the ratio of components of criminal offenses provided for in part. 1 Art. 111-1 of the Criminal Code of Ukraine (“Collaborative activity”) and Art. 436-2 (“Justification, recognition as legitimate, denial of the armed aggression of the Russian Federation against Ukraine, glorification of its participants”). The speaker argued how such actions should be qualified.
The speaker also focused on the fact that today the scientific community and international partners are actively discussing the feasibility, possible risks and consequences of making changes to Art. 438 of the Criminal Code of Ukraine regarding the specification of the forms of committing such a crime as violation of the laws and customs of war.
Nataliya Antonyuk summarized that now it is important for judges and law enforcement officers to see a conceptually common opinion of scientists regarding problematic issues related to crimes against the foundations of national security of Ukraine, war crimes, other criminal offenses related to war, and together find a way to solve the outlined problematic issues .
The scientific and practical conference took place within the framework of the IV Yatsenko readings, dedicated to the memory of the judge of the Constitutional Court of Ukraine (1996–2001), a corresponding member of the National Academy of Legal Sciences of Ukraine, Professor Stanislav Serhiyovych Yatsenko (1936–2014).
The organizers of the 4th Yatsenko Readings are the Department of Criminal and Legal Policy and Criminal Law of the Educational and Scientific Institute of Law of Taras Shevchenko Kyiv National University in partnership with the public organization “UA Experts”.