Next results of the unsystematic «renovation» of the criminal legislation of Ukraine

Abstract

The article is devoted to the problematic issues of applying such a type of punishment as deprivation of the right to occupy certain positions or engage in certain activities. These problems arose both in theory and in judicial practice in connection with the amendments to the Criminal Code of Ukraine and controversial judgments regarding their interpretation and application.
 Traditionally and in full accordance with the provisions of the General part of the Criminal Code, such a punishment as deprivation of the right to occupy certain positions or engage in certain activities was prescribed only for those guilty persons who committed a criminal offense that was connected with their use of their official position for a professional or other special purpose activities or with a negligent attitude to its usage. So, only a person with the characteristics of a special subject could commit such a criminal offense.
 But recently, this type of punishment has been included in the sanctions and such articles, according to which a criminal offense can be committed and/or by a general subject. Because of this in the practice of the courts, including the Supreme Court, there have been rare cases when the right to occupy certain positions or to engage in certain activities is deprived of persons who either did not possess this right at all, or the positions they occupy, or the activity they engaged in was in no way connected with the committed criminal offense.
 The article provides a critical analysis of both the relevant legislative novelties and the litigation based on them.
 In particular, it is noted, firstly, that a person cannot be deprived of those rights that do not belong to him, because he is not endowed with them.
 Secondly, attention is drawn to the fact that depriving a person of rights that he does not possess does not exclude the possibility of him committing the same criminal offense for which he was convicted in the future. Therefore, such a punishment in these cases cannot provide either a punitive and educational or, even more so, a preventive effects.
 Thirdly, it is noted that the application of this punishment to persons who do not possess a certain right deprives the court of those guidelines on which it should rely when determining the legal prohibition in the sentence.
 Fourthly, it is indicated that the absence of such guidelines may lead to the imposition of this type of punishment as an additional punishment for committing any criminal offense with a ban, in addition, to occupy any positions and engage in any activities that were in no way related to a criminal offense committed by a person. But this practice can lead to legal disorder, as it unnecessarily expands the boundaries of judicial discretion and violates the principle of legal certainty.
 Finally, it is noted that the application of punishment in the form of deprivation of a certain right on the basis of such sanctions violates the requirements of the general principles of punishment (paragraph 2, part 1 of Article 65 of the Criminal Code), as it contradicts the provisions of Article 55 of the Criminal Code.
 The article suggests ways to overcome both erroneous legislative decisions and litigation based on them.
 Legislation and litigation used in the article as of May 15, 2023.