Illegal logging or illegal transportation, storage, sale of forest: criminal and legal characteristics of the environmental offense

Abstract

The article is devoted to the criminal and legal characterization of illegal logging or illegal transportation, storage, and sale of forest. The author identifies distinct features of the subject matter of the crime, such as: the integrity of trees and shrubs, their virginity, and the absence of age restriction criteria for felled trees and shrubs. The author formulates the criteria for attributing certain territories to the crime scene. The author emphasizes that the understanding of deforestation only as separation of a tree from the root leads to a narrowing of the scope of criminal law prohibition, since such actions as damage, uprooting, causing significant damage to the environment remain outside the scope of criminal liability. It is proposed to give a clear explanation of the meaning of the concept of “deforestation” in the note to Article 246 of the Criminal Code of Ukraine. The author emphasizes the critical remarks on the legislator’s expansion of the objective party, namely, the inclusion in the disposition of Part 1 of Article 246 of the Criminal Code of Ukraine, in addition to felling, of such actions as transportation, storage, sale of illegally felled trees or shrubs that caused significant damage. The author establishes that the legislative approach to the formulation of the material elements of a crime which are characterized by the above actions creates a number of problems in the process of qualifying an act. The author provides arguments that it is inexpedient to decriminalize transportation, storage, and sale of illegally felled trees or shrubs which caused significant damage, since such actions do not lose their public danger, especially in the context of the environmental situation complicated by the war. At the same time, the author does not support the view that it is expedient to establish administrative liability for transportation and storage of illegally felled trees and shrubs. It is proposed to differentiate criminal liability in this regard. Transportation, storage, and sale of illegally felled trees or shrubs should be provided for as a criminal offense with a formal composition (Part 1 of Article 246 of the Criminal Code of Ukraine), while excluding transportation and storage of illegally felled trees or shrubs from the disposition of Part 1 of Article 65 of the Code of Administrative Offenses as administratively punishable actions. Liability for illegal felling of trees or shrubs in forests, protective and other forest plantations which caused significant damage should be provided for in Part 2 of Article 246 of the Criminal Code of Ukraine (as a crime with material composition). It is found that the most common motives for this crime are mercenary motives.