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05.09.2019

Concerning the Harmonization of Criminal Legislation with International Law

HEAD OF THE PROCEDURAL PROTECTION DEPARTMENT IN KODEX, LAWYER

On March 12, 2019, a draft Law of Ukraine No. 9438 "On Amendments to Certain Legislative Acts Concerning the Harmonization of Criminal Legislation with International Law" was submitted to the Verkhovna Rada for consideration.

The draft law proposes to amend the Criminal Code of Ukraine in the part of crimes acts that are recognized as crimes under international law, in particular: genocide, aggression, crimes against humanity and war crimes.

What is the cause of such a criminalization and is it a positive trend?

Since 2013, significant social and political events have begun in our country: Euromaidan, aggression of the Russian Federation, anti-terrorist operation on the territory of the Donbas, temporary occupation of certain territories of Ukraine. These events caused an increase in crime in spheres that were unusual for these area before these events.

In addition, the purpose of the adoption of this bill is to ensure the implementation of international obligations to prevent the impunity of these crimes.

Today in our country there exist a tendency to further criminalization of various actions and increase legal responsibility in various spheres. For example, recently been adopted the law, which has criminalized such act as sexual abuse.

Interestingly, the changes also create more stringent conditions for prosecution. For example, for committing such acts as: aggression, torture, genocide, it is proposed to dismiss such circumstances for exemption from criminal liability as repugnant repentance, reconciliation of parties, transfer of bail, change of circumstances. This position of the legislator is quite reasonable, since is serious crimes.

However, the question arises whether the criminalization of acts and the strengthening of punishment will help bring the perpetrators to justice and, above all, prevent the commission of crimes itself.

For example, in 2016, the fines for drunk driving were increased. However, increased fines do not frighten drivers, the number of cases in court for drunk driving only increases each year. Looking at the statistical data, it is impossible to ignore the ratio of the total number of cases and the number of persons actually been brought to justice. Only 51% of people for whom the case for drunk driving was opened was punished.

All this only confirms the well-known fact, that not the severity of punishment determines its effectiveness in preventing crime but its inevitability.

All changes in the strengthening of penalties and criminalization of acts can lead to a positive result only when each person who committed a crime will be prosecuted. Only this will prevent the commission of crimes. Unfortunately, the corruption in the judicial and law-enforcement system hinders the implementation of any positive changes in our country.

The fact that not all the amendments provided for by the draft Law of Ukraine No. 9438 contain a clear definition.

For example, it is proposed to define the war crime the statement such as "there will be no mercy" in contest of international armed conflict or an armed conflict of a non-international nature.

Given that the legislator seeks to criminalize the crimes against humanity, this seems logical consistency. However, it cannot be recognized as a criminal offense, if there is no clear sign of social danger. The objective side of the crime needs to be clarified.

The analysis of the project provides an opportunity to see some inconsistencies with definition of international law practice. For example, under the term «torture», law suggested to define cruel, inhuman or degrading treatment of another person, which involves deliberately causing him severe physical or mental suffering or pain.

However, the European Court of Human Rights in Ireland v. The United Kingdom dated January 18, 1978 noted that such methods as of violence as sleep deprivation, restrictions on food and water, covering the head with a bag, noise exposure, standing face to wall for a long time the interval of time defined as inhuman treatment, since it did not result in the suffering of special force and cruelty, which is characteristic of the concept of "torture" 1. In the case of Miller v. Ukraine dated 28.03.2006, the ECtHR defined the detention of a prisoner in a overcrowded cell, inappropriate medical treatment and unsatisfactory sanitary conditions, not as torture but as a degrading treatment.

As we see, international judicial practice distinguishes the concept of torture and inhumane treatment, moreover, sees as an obligatory component of torture the existence of a goal.

In general, the proposed amendments to the Criminal Code of Ukraine are relevant and opportune.

1. The decision of the ECtHR in the case of Ireland v. The United Kingdom. [Electronic resource]. - Resource access: https://hudoc.echr.coe.int

2. The decision of the ECtHR in the case of Melnik v. Ukraine. [Electronic resource]. - Resource access: https://zakon.rada.gov.ua/laws/show/974_049