Violation of laws and customs of war (Article 438 of the Criminal Code of Ukraine), committed on behalf of and in the interests of the Russian Federation: problems of criminal legal response

Abstract

The article is devoted to clarifying the question of whether criminal measures can be applied to legal entities in the event of an authorized person committing a crime on behalf of and in the interests of a legal entity under Article 438 of the Criminal Code of Ukraine. Based on the interpretation of the norms provided for by paragraph 4 of part 1 of Article 96-3 and part 2 of Article 96-4 of this Code, a legal conflict has been identified, which consists in the presence of a declarative norm on the possibility of applying such measures in this case (paragraph 4 of part 1 of Article 96-3 of the Criminal Code of Ukraine) and a norm that excludes such a possibility (part 2 of Article 96-4 of this Code). It offers the basis of application of measures of criminal and legal nature in relation to legal entities to consider through the prism of a set of three conditions (components), namely: 1) commission by an authorized person of criminal offenses provided for in a specific paragraph of part 1 of Art. 96-3; 2) committing these criminal offenses on behalf of and/or in the interests of a legal entity (depending on its wording in the relevant paragraph); 3) belonging of legal entities to the type provided for in Art. 96-4 of the Criminal Code of Ukraine. It is established that, in view of the legal status of combatants who are involved by the State in armed conflicts of an international or non-international nature and take part in hostilities on the side of the relevant belligerent party in the composition of regular and irregular troops, are representatives of this party, that is, they act on behalf of and in the interests of the relevant governments, the State that involved them in hostilities. Such combatants, accordingly, act on behalf of and in the interests not only of the state, but also of the relevant state formation, including military ones. At the same time, in case of committing such unlawful acts by an authorized person of the state or a legal entity under the effective control of the state or a subject of state property, it bears exclusively civil responsibility for the benefit received and the damage caused (part 2 of Article 96-4 of the Criminal Code of Ukraine). It is proposed to eliminate such a conflict by excluding from paragraph 4 of Part 1 of Article 96-3 of the Criminal Code of Ukraine an indication of Article 438 of this Code.