Change of situation as a basis for exemption from criminal responsibility for illegal felling, transportation, storage, sale of forest (Article 246 of the Criminal Code of Ukraine): problems of judicial practice

Abstract

The article carried out a critical analysis of the judicial practice of exemption from criminal liability in connection with the change in the situation of persons who have committed a criminal offense provided for in Art. 246 of the Criminal Code of Ukraine, as a result of which existing problems in this area were identified and scientifically based ways of overcoming them were proposed. In particular, it was proven that the most common mistake made by domestic courts when acquitting persons who have committed a crime, provided for in Art. 246 of the Criminal Code of Ukraine, there is the fact that the application of Art. 48 of the Criminal Code of Ukraine is permanently justified by compensation for the damages and circumstances that should actually be considered only in the context of the individualization of criminal responsibility (such as the absence of a criminal record, sincere remorse). It is concluded that such a practice clearly does not stimulate law-abiding behavior, since in the worst case, the one who committed illegal logging «is threatened» with only full compensation for the damage caused, without serving any punishment for what he did. It is also stated that the appropriate approach is based on ignoring the obvious fact that the change of situation as a relatively objective type of exemption from criminal responsibility does not depend on the willpower and post-criminal behavior of the subject of the criminal offense. Arguments are given in favor of supporting the position of those courts that, demonstrating a principled position, instead of the usual formal approach, carefully study the existence of grounds for satisfying the relevant requests and, in particular, note that all the above-mentioned circumstances are not sufficient by themselves and cannot convincingly testify about a change in the situation and a person’s loss of social danger to such an extent that it makes it impossible for him to commit another criminal offense. Key words: criminal responsibility; exemption from criminal liability; punishment; change of situation; illegal felling, transportation, storage, sale of forest; contrition; post-criminal behavior; losses; compensation for damages; public danger.