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The Proportionality of Criminal Liability for Some Criminal Offences Under Martial Law

Year: 2024
Type: article
Abstract: The article examines the issue of proportionality of criminal responsibility for some criminal offenses under martial law. Taking into account the analysis of the text of the law on the introduction of relevant amendments, the explanatory note to the corresponding draft law and the practice of the Supreme Court of Ukraine, it was found that the aggravating circumstance "using the conditions of martial law or a state of emergency " under point 11, part 1 of Article 67 of the Criminal Code of Ukraine and the qualifying circumstance "in conditions of war or state of emergency" of sanction in Part 4 of Article 185, Part 4 of Article 186, Part 4 of Article 187 part 4 of Article 189, Part 4 of Article 191 of the Criminal Code of Ukraine have the same legal nature. On the basis of the judicial practice of the Supreme Court of Ukraine, it was established that the qualification of theft under martial law in any amount (in particular, in the minimum amount) according to part 4 of Article 185 of the Criminal Code of Ukraine is a disproportionate means of influence Martial law conditions exist throughout Ukraine until the end of the war. But this does not mean the leveling of the main corpus delicty and other qualifying features of the corpus delicty. It is proposed to clarify the editing of the article, in particular, using the conditions of war or a state of emergency, using the helpless state of residents or other conditions created by military actions that facilitate the commission of criminal offenses to a degree that is significantly different from the circumstances of ordinary life. It is established that measures to respond to military criminal offenses must be proportionate and proportionate to other criminal offences. Restrictions on the possibility of applying the exemption from criminal responsibility seem inappropriate and contrary to the Constitution. Gradually, it will be possible to add all criminal offenses to this list of restrictions, based on countermeasure trends. This nullifies the existence of the institution of exemption from criminal responsibility as such and violates the principles of criminal law.
Language: English
Open Access status: diamond
OpenAlex ID: W4403516963
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