Human infection with an infectious disease agent: analysis of constructive objective features of criminal offences

Abstract

With a view to confirming the hypothesis that the ineffectiveness of criminal law provisions under Articles 130, 131, 133 of the Criminal Code of Ukraine is due to the shortcomings of their legislative design, the author analyses the definitions used by the legislator to determine the constructive objective features of criminal offences under Articles 130, 131, 133 of the Criminal Code of Ukraine. The author establishes that they are inconsistent with the terminology of healthcare regulations which should be used when qualifying encroachments on biological safety manifested in infection of a person (persons) with infectious disease agents. The article states that current legislation does not contain any lists of incurable and venereal diseases. On this basis, it is concluded that the qualification of the relevant criminal offences is not based on the provisions of legislation, but on the previous court practice, common sense of law enforcement officers and the level of their legal awareness. The view is supported that the indication of a virus as an instrument of criminal offences (Articles 130, 131 of the Criminal Code of Ukraine) significantly limits the criminalisation of encroachments on biological security in the form of spread of infectious diseases. Attention is drawn to the discrepancy between the constructions of the objective side of the corpus delicti of criminal offences under Articles 130 and 133 of the Criminal Code of Ukraine, which provide for an identical mechanism of causing harm to the victim. It is established that the absence of any references in the disposition of Article 133 of the Criminal Code of Ukraine to the means of infection (live pathogen) unjustifiably delays the moment of termination of this criminal offence until the victim develops clinical manifestations of the disease. Finally, the conclusion is made that the gradual widening of the gap between the substantive criminal law and medical law makes it increasingly difficult to qualify the infection of another person with dangerous infectious diseases and creates problems in delimiting related corpus delicti of criminal offences. The editorial wording of the unified basic elements of a criminal offence consisting in infecting a person with a pathogen which is dangerous to his/her life is proposed.