Criminal consequences of the introduction of martial law in Ukraine

Abstract

The article is devoted to the study of the criminal consequences of the introduction of martial law in Ukraine. Based on a systematic analysis of the provisions of the current criminal law, other laws of Ukraine, and a critical assessment of the achievements of Ukrainian criminal law science, the author identifies and analyzes seven criminal legal consequences.

First, attention is drawn to the fact that the Criminal Code of Ukraine establishes criminal-law consequences solely for cases of imposition of martial law and does not determine them for cases of wartime. Secondly, the author has determined the exact time limits for the existence of martial law, certain moments of its introduction and termination. Thirdly, it was concluded that the lawful restriction of human rights or freedoms, committed in accordance with the law on martial law, is a circumstance precluding the criminality of the act. This circumstance is not provided for by the Criminal Code of Ukraine and has its own grounds and characteristics, determined by special laws. Fourthly, the place of such a sign as the commission of a crime “in the conditions of martial law” in the system of signs of corpus delicti is established. In contrast to the judgment expressed in the literature, it has been proved that this feature relates to time, and not to the setting of a crime. Fifth, certain qualifications of continuing and ongoing crimes are partly committed during, and partly not during martial law. It has been established that a continuing crime can be qualified as committed during martial law, when it was started during martial law, and continued as when the last of the acts that constitute it were committed during martial law. Sixth, certain features of exemption from criminal responsibility in connection with the introduction and cancellation of martial law. In particular, the prerequisites and grounds for exemption from criminal liability for transferring to the side of the enemy in martial law conditions (part 2 of article 111 of the Criminal Code) are defined and cases where the termination of martial law may indicate a loss of public danger (article 48 of the Criminal Code) . Seventh, rules are formulated to account for the commission of a crime using martial law conditions as an aggravating circumstance. Cases when courts can and cases when it is forbidden to courts to consider this circumstance as such, aggravating punishment are defined.

Based on the study, recommendations on the practice of applying certain provisions of the criminal law during martial law were formulated, and it was concluded that considering such practices would give impetus to the continuation of scientific research in this area. Separately set out proposals for the legislator to improve the provisions of the Criminal Code of Ukraine, should be applied during martial law.