Issues related to qualification of the crime, provided for by Art. 166 of the Criminal Code of Ukraine, in decisions of the court of cassation

Abstract

The paper is devoted to the issues related to qualification of a malicious failure to take care of a child or a person in respect of whom guardianship or custody is established (Art. 166 of the Criminal Code of Ukraine). Children have a right to a special care and assistance, a child needs to grow up in a family environment, in an atmosphere of happiness, love and understanding for his/her full and harmonious personality development. A duty of their care is imposed on their parents or persons in loco parentis, guardians (custodians). Commission of a crime of non-fulfillment of these duties is a quite common phenomenon in Ukraine. In order to determine the elements of this crime it is necessary to determine the maliciousness of the act and availability of severe consequences, which are caused by any omission of parents or persons in loco parentis. However, no specific types of consequences are prescribed by law; their availability or absence shall be established by the investigator, prosecutor and court in each specific case. This has led to different approaches in law enforcement practices that is accompanied by essential errors in qualification both at the beginning of criminal proceedings and during subsequent investigation.
 The paper contains a critical comprehension of the legal opinions, contained in the decisions of the court of cassation (the Highest Specialized Court of Ukraine for Civil and Criminal cases, the Supreme Court of Ukraine, the Supreme Court) with regard to qualification of a malicious failure to take care of a child or a person in respect of whom guardianship or custody is established. Subject to the criminal law doctrine and law enforcement practices the author’s vision of the reasonableness of these findings and their importance in the criminal legal qualification of this crime is given.