Criminal Offenses Research Articles

The victim and the subject as elements of the object of the «abuse of influence» offense

The paper examines the features of the object of the crime provided for by Art. 369-2 of the Criminal Code of Ukraine, such as the victim and the subject of the crime. It has been established that in the course of the commission of this offense, the victim is usually excluded. An exception is only the qualified structure of the crime, which is related to the demand of unlawful benefit (Part 3 of Article 369-2 of the Criminal Code of Ukraine). A natural person becomes a victim when extortion is committed, provided for in Part 3 of Art. 369-2 of the Criminal Code of Ukraine, since, as is known, extortion involves the threat of violence against the victim or his close relatives, restriction of the rights, freedoms or legal interests of these persons, damage or destruction of their property or property in their custody or under protection, or disclosure of information that the victim or his close relatives wish to keep secret. The debatable issue regarding illegal gain as a subject or means of committing a crime, provided for in Art. 369-2 of the Criminal Code of Ukraine, has been researched. It has been argued that unlawful benefit should be recognized as the subject of this criminal offense, since the socially dangerous acts described in this article, which consist in the offer, promise or provision of unlawful benefit, as well as in the acceptance of the offer, promise or receipt of unlawful benefit, are committed for the purpose of unlawful benefit, regarding it, as well as the presence of such a criminal offense as abuse of influence is connected with its properties. At the same time, the unlawful benefit specified in Art. 369-2 of the Criminal Code of Ukraine cannot facilitate the commission of this crime, since the actual actions in relation to it constitute criminal influence. This crime is embodied precisely in the actions regarding the wrongful gain. Without illegal benefit, there will be no act, and therefore there is no reason to talk about ensuring its commission or facilitating it. It has been determined that an unlawful benefit could be the means of committing a criminal offense only if the provision of Art. 369-2 of the Criminal Code of Ukraine covered the actual criminal influence on decision-making by a person authorized to perform the functions of state or local self-government.

Threat of violence as a way to commit «Counteraction to legitimate economic activity»

The article is devoted to one of the ways of committing a criminal offense under Article 206 of the Criminal Code of Ukraine “Counteraction to legitimate economic activity”. In particular, the author examines the concept of threats of violence against the victim or persons close to the victim in the course of counteracting legitimate economic activity. It is determined that the method of committing a criminal offense in the form of a threat of violence against the victim or persons close to him/her is present both in Article 206 of the Criminal Code of Ukraine “Counteraction to Legitimate Economic Activity” and in some other corpus delicti of criminal offenses. The author establishes that in the Criminal Code of Ukraine “threat of violence” appears either as a separate criminal offense or as a method of committing a criminal offense. The study reveals the content of the terms “threat” and “threat of violence” used in the disposition of Article 206 of the Criminal Code of Ukraine. Based on the results of the analysis, the author suggests that a threat of violence should be understood as actions of a person aimed at intimidation without physical contact with the victim, which are intended to influence the psycho-emotional state of the victim with a view to achieving the desired criminal result. For the purpose of recognizing a threat as a method of counteracting legitimate business activity, it does not matter whether the perpetrator actually intended and was actually able to carry out the threat. From the moment the demand combined with the threat is made, this criminal offense is complete. It has been determined that, within the meaning of Article 206 of the Criminal Code of Ukraine, close persons are understood to mean close relatives - parents (foster parents), children (foster children), grandparents and grandchildren. Family members are parents (foster parents), children (foster children), brothers, sisters and their spouses who live together, as well as a spouse who lives together but is not married, and the spouses’ parents. The closeness of persons who are family members is based primarily on marriage (husband, wife) and consanguinity (children, parents, other relatives), and may also arise on other grounds (friendship, love, etc.).

The subjective side of real estate fraud

The article deals with the subjective side of the criminal offense under Article 190 of the Criminal Code of Ukraine, in particular, real estate fraud. The author establishes that the subjective side of a criminal offense is of great importance for characterizing fraud. As is known, the subjective side of a criminal offense is its internal side, namely, the mental activity of a person which reflects his/her attitude to the socially dangerous act which he/she commits and its consequences. It is noted that the content of the subjective side of the criminal offense of real estate fraud includes such features as guilt, motive and mercenary purpose. The author concludes that when committing real estate fraud, a person realizes the socially dangerous nature of the offense which he/she commits. Guilt in committing real estate fraud is characterized by direct intent, the content of which is formed by two aspects – intellectual and volitional. The mercenary purpose in committing real estate fraud is expressed in obtaining personal property benefits and is a necessary subjective feature of this type of fraud; it arises in the mind of the guilty person in the form of the final result of the criminal offense – the achievement of material benefit. The motives for committing real estate fraud are of a mercenary nature. They are manifested as internal motivations that guide the perpetrator in committing real estate fraud and form the structure of criminal mercenary motivation. Real estate fraud is committed by persons who are psychologically prepared to commit a criminal offense, clearly realize the illegal actions aimed at seizing ownership of residential property, clearly realize the illegal actions aimed at seizing ownership of someone else’s real estate (to obtain money in a particularly large amount), and the consequences in the form of harm to the victim. Persons who develop such fraudulent schemes mislead victims about their true criminal intentions or abuse the victim’s trust for material gain. The criminals are certainly guided by a selfish purpose and mercenary motives that are fundamental to their behavior.

The objective side of the criminally punishable violation of legislation on plant protection

The article is devoted to the study of the elements of the objective side of the composition of a criminal misdemeanor, provided for in Art. 247 of the Criminal Code of Ukraine “Violation of legislation on plant protection”. The foreign experience of criminal protection of flora is partially highlighted. It has been established that within the framework of several criminal law prohibitions, in which damage to objects of plant life appears as one of the alternative consequences of encroachment on various spheres (elements) of the environment, the Criminal Code of the Federal Republic of Germany embodies a different from Art. 247 of the Criminal Code of Ukraine approach toward an end-to-end regime for the protection of plant life, which is a manifestation of law-making authenticity. It has been established that a similar approach was reflected in the project of the new Criminal Code of Ukraine. The content of the blanket disposition of Art. 247 of the Criminal Code of Ukraine is detailed; acts of regulatory legislation are listed, on which the law enforcement officer must rely when incriminating this criminal law prohibition; actions that can be regarded as a corresponding socially dangerous action – violation of the legislation on plant protection are specified. Based on the results of the analysis of the text of the criminal law and the limited practice of the corresponding law enforcement, both the justification of the construction of the disposition of the researched prohibition according to the blanket type, and the generally practical problem absence of its proper specification in the way of referring to a number of acts of regulatory legislation have been proven. Considerations regarding the content of severe consequences as an element of the objective side of the composition of the analyzed criminal offense against the environment have been expressed. The expediency of the existing legislative approach has been pointed out, according to which the delimitation of the composition of the criminal offense provided for in Art. 247 of the Criminal Code of Ukraine, from the composition of related administrative offenses has been carried out on the grounds of socially dangerous consequences. It has been established that Art. 247 of the Criminal Code of Ukraine remains among the “dead” prohibitions, the reasons for which must be clarified by criminological science. The opinion has been expressed that the problem of the inevitability of the criminal law response to the most dangerous violations of the legislation on plant protection lies not in the legislative, but in the law-enforcement sphere.

Krivičnopravni značaj afektivnih stanja

The first part of this paper briefly explains the psychological nature of emotions and affective conditions. The second part of the paper deals with emotions in the general and the special part of the criminal law. In the context of motives out of which a crime is committed, emotions can have significance in sentencing. Special attention is dedicated to „base motives“, feelings of hatred and compassion, and to their significance in criminal law. The u7second, lengthier part of the paper is concerned with affective conditions in criminal law. The theoretical analysis of this matter encompasses the view on affective conditions as possible causes of a temporary mental disorder, which is a biological basis of unaccountability/significantly diminished accountability (art. 23 CC) and the legal concepts of the „heat of passion“ and „fright“ that generally correspond to the feeling of anger or the feeling of fear. This is connected to the legal concept of exceeding the limits of lawful defense (art. 19 par. 3 CC), as well as to the criminal offences of murder in a heat of passion (art. 115 CC) and severe bodily injury in a heat of passion (art. 121 par. 5 CC). Other criminal offences also include the affective conditions of the passive subject as a basic or supplemental element. The final, third part of the paper contains conclusions backed up with relevant arguments.

Instrumental and legal nature of early release on parole from serving a sentence

The article is devoted to the study of the peculiarities of the content of early release on parole as a comprehensive criminal law remedy. It is stated that the functional purpose of conditional early release on parole from serving a sentence is to achieve the goals necessary for society. From the point of view of the instrumental theory of law, it is determined that early release on parole from serving a sentence constitutes a specific system of criminal law means by which the goals of criminal law regulation are achieved. According to the information and psychological orientation, such legal means are divided into stimulating and restrictive. It is found that legal facts, subjective rights, legitimate interests, benefits and incentives are the forms of manifestation of legal means-incentives. It is substantiated that legal incentives, directly orienting an individual to achieve beneficial consequences for him/her, are the most powerful incentive factor, and their application in the case of early release on parole from serving a sentence may be associated with both ordinary lawful behavior which does not exceed the general requirements and excessive performance of duties by a convicted person and is expressed in the form of elimination of restrictions determined by the criminal sentence applicable to a convicted person. The article emphasizes that legal remedies-restrictions are associated with unfavorable conditions for realization of interests of subjects, are focused on negative legal motivation and reduction of negative activity of subjects of law, and their forms of manifestation are legal facts, prohibitions, suspensions, legal obligations, penalties, etc. A legal restriction on early release on parole from serving a sentence is a prohibition in the form of a passive legal obligation of a convicted person not to commit any new criminal offense during the unexpired part of the previously imposed sentence. It is generalized that legal means-incentives and legal means-restrictions should be considered in an inseparable interrelation, since they are paired legal categories, i.e., internally dialectically interrelated and mutually supporting each other in the process of criminal law regulation. Thus, the author concludes that the instrumental and legal nature of early release on parole from serving a sentence as a complex criminal law tool is dialectically complex, since it combines directly opposite and at the same time internally unified criminal law means of influencing social relations.

Correlation between the principle of competitiveness and the right of the court to instruct the representative of probation body staff to make a pre-trial report in criminal proceedings

The article highlights the issue of compliance with the general principle of competitiveness of criminal proceedings with the right of the court to instruct a representative of the probation body staff to prepare a pre-trial report on the identity of the accused, which the court implements at the stage of preparatory proceedings, both on its own initiative and at the request of the parties to the criminal legal dispute. It has been found that the principle of competitiveness imposes on the court the obligation, on the one hand, to facilitate the implementation of the procedural rights granted to the parties and not to interfere in the process of proving their own legal position. However, on the other hand, it obliges the court to fully, comprehensively and impartially investigate the circumstances of the commission of a criminal offense to achieve the truth in a criminal case. It has been established that in the case of instructing a representative of the staff of the probation body to prepare a pre-trial report on his own initiative, the court actually goes to the side of the prosecution, since, even before the investigation in the conditions of the trial of any evidence of the person’s guilt, it appoints a pre-trial report with a conclusion on the necessary type and extent punishing the accused for committing an incriminated, but as yet unproven, criminal offense. It was emphasized that the refusal of the court to grant the request of the party to the criminal proceedings regarding the necessity of appointing a pre-trial report is also incompatible with the requirements of the principle of competitiveness, because additional information about the identity of the accused can help the parties defend their legal positions before the court, since they can indicate the presence of circumstances that aggravate or mitigate the defendant’s punishment, or exclude his criminal responsibility. On the basis of the conducted research, a conclusion was formulated, according to which, the resolution on instructing a representative of the probation body staff to prepare a pre-trial report based on the request of a party to a criminal legal dispute will fully comply with the principle of adversarial criminal proceedings, since: 1) it will assist the parties in proving the circumstances before the court, which are included in the subject of proof; 2) will be an additional way to ensure the achievement of the objective truth in a criminal case; 3) will testify to the impartiality and impartiality of the court, which, in the absence of prosecution evidence, will leave to the discretion of the parties the necessity of appointing a pre-trial report with a conclusion on the possibility of correction of the accused without the application of imprisonment or restriction of liberty for a certain period.

Ensuring the reasonableness of criminal proceedings’ terms

It is indicated that the current Criminal Procedure Code of Ukraine dated April 13, 2012 for the first time at the legislative level established such a principle of criminal proceedings as the reasonableness of terms. Yes, in accordance with Article 28 of the Criminal Code of Ukraine during criminal proceedings, each procedural action or procedural decision must be performed or made within a reasonable time. The article is devoted to the analysis of criminal proceedings’ principle “reasonable terms”. During criminal proceedings, each procedural action or procedural decision must be performed or adopted within a reasonable terms. Terms that are objectively necessary for the execution of procedural actions and the adoption of procedural decisions are considered reasonable. Reasonable terms cannot exceed the terms of execution of individual procedural actions or adoption of individual procedural decisions provided for by the CPC of Ukraine. The pre-trial investigation is carried out within a reasonable terms by the prosecutor, the investigating judge (with regard to the time frame for consideration of issues falling within his competence), and the court conducts the court proceedings. The criteria for determining the reasonableness of criminal proceedings terms are: 1) the complexity of criminal proceedings, which is determined taking into account the number of suspects, accused persons and criminal offenses in respect of which the proceedings are being carried out, the volume and specifics of procedural actions necessary for conducting a pre-trial investigation, etc.; 2) behavior of participants in criminal proceedings; 3) the manner in which investigators, prosecutors, and courts exercise their powers. Criminal proceedings against a person in custody, a minor or a criminal offense committed against a minor must be carried out immediately and considered in court as a matter of priority. It is important to ensure the reasonableness of criminal proceedings terms to study this principle not only in science, but also in judicial practice, in particular, the practice of the European Court of Human Rights. Adhering to the reasonableness of the terms of criminal proceedings will contribute to the exercise of a person’s right to judicial protection, will ensure an effective and prompt investigation and trial, and thus will ensure the fulfillment of criminal proceedings’ tasks.

Correlation of certain provisions of the criminal law with the principles of law

The article is devoted to the study of the issue of introduction of absolutely definite sanctions in the law on criminal liability, the reasons and prerequisites which contributed to their emergence, and the correlation of such changes with the principles of law. The Law of Ukraine «On Amendments to the Criminal Code of Ukraine on Strengthening Liability for Crimes Against the Fundamentals of National Security of Ukraine in the Conditions of Martial Law» of March 3, 2022, amended the law on criminal liability and strengthened liability under Articles 111 and 113 of the Criminal Code of Ukraine, which provide for liability for high treason and sabotage by applying absolutely certain sanctions. In the context of the issue raised, the authors also examine the current practice of law enforcement in the form of decisions of the Constitutional Court of Ukraine and the European Court of Human Rights on similar issues through the prism of the principles of law. According to the provisions of the criminal law theory, a sanction is a part of a rule of law which contains instructions on the legal consequences of violation of a rule set forth in a disposition. The purpose of a sanction is to create certain unfavorable consequences for the offender or incentives for the subjects who comply with the governmental order. The types of sanctions include: by the degree of certainty: 1) absolutely certain – clearly define the type and extent of legal liability; 2) relatively certain – the limits of legal liability are determined from minimum to maximum or only to maximum. An absolutely definite sanction is a type of sanction in a criminal law provision that establishes a single type and amount of punishment. With the adoption of the new law on criminal liability in 2001, the legislator completely abandoned this type of sanction, which enabled courts to exercise discretion in passing sentences based on the results of each criminal proceeding. In the article, the authors reflect and substantiate the assertion that in the sanctions of the articles under consideration, alternatives to imposing punishment for the specified criminal offenses in the form of life imprisonment as the most severe punishment currently available in the law can only formally be considered an alternative to imposing a punishment of 15 years of imprisonment. A formal approach to the issue of sentencing a person who has committed a criminal offense not only makes it impossible to individualize responsibility, but also to demonstrate to society the principle of justice in sentencing.

A few remarks on professional and expert activities in criminal proceedings

In criminal proceedings, the establishment of facts beyond reasonable doubt is a cornerstone principle, ensuring that criminal offenses are accurately identified and perpetrators are justly punished while respecting the rights of all parties involved. The proof process is vital, with evidence playing an essential role in determining the outcomes of various procedural stages. Among the types of evidence, expert evidence has become increasingly significant, especially with advances in science and technology broadening the scope of issues requiring specialized knowledge. This paper aims to analyze the roles and impacts of professional and expert activities in criminal procedures. It seeks to highlight the distinctions between expert reports and professional statements, illustrating their respective legal standings and importance in the context of Slovak law. By examining the regulatory framework, specifically Act No. 382/2004 Coll. on experts, interpreters, and translators, and the Criminal Procedure Code (Act No. 301/2005 Coll.), the paper delves into the conditions, rights, and obligations of experts. Additionally, it addresses the significance of expert consultants introduced by the Criminal Procedure Code, who provide advisory services without precluding the involvement of expert witnesses for comprehensive technical assessments. Expert reports, governed by stringent formalities, are pivotal in addressing complex technical issues within criminal cases. These reports must be produced by court-appointed experts and include detailed descriptions of the methods used and the conclusions drawn. Conversely, professional statements, considered documentary evidence, do not carry the same legal weight and lack the formalities required for expert reports. The Criminal Procedure Code also ensures that expert evidence is used appropriately by stipulating when and how expert opinions should be sought. This comprehensive approach ensures that all technical and scientific issues are thoroughly examined, contributing to the fair administration of justice. In conclusion, the integration of expert and professional activities in criminal proceedings enhances the accuracy and reliability of judicial decisions. By leveraging specialized knowledge, the legal system can better fulfill its mandate of delivering justice while upholding the principles of fairness and due process. This paper underscores the necessity of clear regulatory frameworks and the proper application of expert evidence to achieve these aims.

The subject of proof in the criminal process of Ukraine

The article claims that the process of proving is the main content of criminal procedural activity. It is thanks to this process that the tasks of criminal procedure are fulfilled and the objective truth is established in criminal justice. The subject of proof in criminal proceedings is one of the key categories related to the process of proving. Establishing all the circumstances that characterize such a subject contribute to a full pre-trial investigation and trial. A conclusion has been formulated, according to which evidence in a criminal procedure should be understood as the activity of the subjects of criminal justice in relation to the collection, verification and evaluation of evidence and their procedural sources, as well as the formulation of a certain thesis (accusatory or exculpatory) on this basis and the submission of arguments in support of it. This activity is retrospective in nature. The purpose of cognition in criminal proceedings is to establish a certain set of circumstances of a criminal offense, which have been called “the subject of proof in a criminal procedure.” The list of such circumstances is defined in Art. 91 of the Code of Criminal Procedure (CCP) of Ukraine. The subject of proof in a criminal proceeding is the list of circumstances provided for by the Criminal Procedure Law of Ukraine, which must be established in each criminal proceeding and ensure the adoption of a corresponding procedural decision. The list of circumstances to be ascertained in criminal proceedings regarding criminal offenses committed by minors should be considered as a supplementary, clarifying subject of proof in relation to the general subject of proof. Circumstances to be established during criminal proceedings regarding the application of coercive measures of an breeding nature in relation to minors who have not reached the age of criminal responsibility, and regarding the use of coercive measures of a medical nature constitute a separate, independent subject of proof in a criminal process, determined by the characteristics of a person who has committed a socially-dangerous act, and the specifics of the criminal procedural form.

Distinguishing the acceptance of an offer, promise or receipt of an unlawful benefit by an official from related criminal offenses and fraud

One of the foundations of the current anti-corruption policy and institutional reform in the field of fighting corruption is the establishment of criminal liability for criminal offenses in the field of official activities and professional activities related to the provision of public services. The priority area of law enforcement activities in Ukraine is combating corruption offenses committed by public officials, and one of the types is acceptance of an offer, promise or receipt of an unlawful benefit. The article outlines the conceptual aspect of distinguishing acceptance of an offer, promise or receipt of an undue benefit from related corpus delicti of criminal offenses which provide for liability for offenses in the field of official activity and professional activity related to the provision of public services, namely, it contains some similar features to those of related criminal offenses such as illicit enrichment (Article 368-5 of the Criminal Code of Ukraine), abuse of influence (Article 369-2 of the Criminal Code of Ukraine), and conducting of bribery. In addition, attention is drawn to the distinction between acceptance of an offer, promise or receipt of an unlawful benefit and fraud (Article 190 of the Criminal Code of Ukraine). The article focuses on the common and distinctive features of the elements of a criminal offense under Article 368 of the Criminal Code of Ukraine with related elements, namely: bribery of an official of a legal entity of private law regardless of its organizational and legal form (Art. 368-3 of the Criminal Code of Ukraine), bribery of a person providing public services (368-4 of the Criminal Code of Ukraine), illicit enrichment (Article 368-5 of the Criminal Code of Ukraine), abuse of influence (Article 369-2 of the Criminal Code of Ukraine), provocation of bribery (Article 370 of the Criminal Code of Ukraine) and fraud (Article 190 of the Criminal Code of Ukraine). The author emphasizes the criteria of objective and subjective features which allow for the appropriate distinction.

Threat in the context of identifying the victim

It is indicated that an important feature of the injured person, which allows to distinguish him from other persons, is related to the infliction of damage. The etymological and semantic analysis of the term «victim» shows that damage is an integral feature of a victim. The article examines the possibility and expediency of recognizing a person as a victim in the criminal law field in the event of a threat to cause harm to him. Provisions of the current Criminal Code of Ukraine, the project of the new Criminal Code of Ukraine, national judicial practice are taken into account. It is argued that in context of the injured person, term damage is understood in two meanings: 1) narrowly (includes only real damage); 2) in a broad sense (includes both damage and the danger/threat of causing it, as well as the threat). At the same time, attributing the threat as an independent action to a type of harm, as suggested by authors of the draft Criminal Code of Ukraine, seems debatable, because in such a case the term «threat» will denote both an action and a consequence. It is also worth paying attention to whether there is a need to use both the term «threat» and the term «danger» in the draft Criminal Code of Ukraine. It has been established that the term «threat» in the context of the definition of the victim means both actual moral or other types of harm to him, as well as the threat/danger of his task. It has been proven that victim in a certain composition of a criminal offense can be characterized not only by harm in its narrow sense, but also by threat or danger of its occurrence, that is, harm in the broad sense, as well as the threat of harm. The threat in the context of the criminal-legal understanding of victim is important, first of all, if there is no implementation. In case of the implementation of a threat, which is provided as an independent crime and is a stage of a single criminal activity, united by a single intention and aimed at causing damage to the same object, qualification under the article providing for responsibility for the threat is not required, and therefore and there is no need to establish the victim of the threat. If a threat is a way of committing an act, then the victim is determined in the context of act in general, taking into account the threat as a way of committing it.

Comparative Analysis of Bribery as, Criminal Wrongdoing

There is a consensus that bribery, which is explicitly outlawed in the Magna Carta, should be considered a criminal act. Elucidate the criminalisation of bribery may be unexpectedly for those who see harmful actions as the primary criterion for determining what should be made a criminal offence. The predicament faced by these intellectuals is as follows. Bribing sometimes encompasses innocuous misconduct, but the rationale for criminalising it does not stem from any undue damage inherent in bribing itself. The rationale is on the potential damage that may occur if bribery is not penalised, considering the limited efficiency of civil law in reducing its prevalence. According to some theorists, the basis for criminalising activity based on the concept of "remote harm" is considered a secondary and possibly problematic kind of criminalisation. This paper presents a challenge for these theories in elucidating not only the reasons behind bribery but also the reasons behind other significant offences, such as rape, which are often seen as fundamental instances of criminal misconduct. Indeed, criminal law has the lawful authority to include a broad array of harm-related justifications for including action within its boundaries and central principles. One cause for the activity involving inflicting unnecessary injury is the reality itself.

Features of the qualification of crimes in the sphere of intellectual property

The article is devoted to the peculiarities of the qualification of crimes in the field of intellectual property. It is noted that the basis of the criminal-legal qualification process is exclusively the criminal law. Only the Criminal Code of Ukraine provides an exhaustive list of criminal offenses, definitions of acts that are not crimes, and characteristics of post-criminal behavior, which in each specific case have their own criminal-legal significance. That is why, for the correct application of the criminal law, it is necessary to have deep knowledge, a systematic understanding and a clear and unanimous interpretation of all elements of the composition of a criminal offense, acts that are not criminal, as well as certain post-criminal behavior, if they were not disclosed by the legislator in the law itself. That is, the qualification of a criminal offense in the field of intellectual property becomes a logical continuation of the previous criminal-legal qualification only when the result of the latter turns out to be the recognition of a certain act as criminally illegal. In addition, it was established that during the criminal-legal qualification, first of all, it should be determined whether the committed act is provided for in a certain prohibitive article of the Criminal Code of Ukraine. Then it is necessary to establish the conformity of the signs of this actually committed act with all the signs of a criminal offense in the field of intellectual property, which are provided for by the specified article of the criminal law. The author also emphasized the fact that an important aspect of the qualification of criminal offenses in the field of intellectual property is their combination with other criminal acts. That is why the accuracy of the qualification of the investigated criminal offenses must be achieved regardless of whether it will affect the future punishment or in some other way in the future will affect the legal position of the suspect.

Case Study of Supreme Court Decision Number 418 K / Pid / 2016 Against Criminal Perpetrators Participating in Making Fake Letters

The problem that arises with medepleger in the crime of document forgery is that its application is not explicitly regulated in the Criminal Code regarding its punishment. Then a gap emerged between das sollen (the Criminal Code does not explicitly regulate the criminal offense of participating in making fake letters) and das sein (many people who commit crimes taking part in making fake letters), as in Supreme Court Decision Number 418 K/Pid /2016. This research aims to determine the regulation of the criminal act of forgery of letters in the Criminal Code and to determine the imposition of criminal sanctions against perpetrators of criminal acts who participate in the continuous production of fake letters. This research is a type of normative juridical research, with a statutory approach and a case approach. Research data relies on primary data in the form of statutory regulations and binding decisions and secondary data, namely library sources. As for the research results: the legal arrangements for inclusion in the Criminal Code are regulated in 55 paragraph 1 of the Criminal Code. Regulations for the act of falsifying letters are regulated in Chapter Overall, what is at the core of all forms of criminal acts of letter forgery are making fake letters, falsifying letters and using fake letters or forged letters. what is formulated in the Articles on falsification of letters is the action on the object or form of the letter. The imposition of criminal sanctions against perpetrators of criminal acts who participated in making fake letters which is carried out continuously in the Supreme Court Decision Number 418K / PID / 2016 is based on legal facts, whether through witness statements, defendant statements, or evidence, mitigating and aggravating matters. the defendant and based on juridical considerations. In this case the defendant committed the act by means of participation. With the fulfillment of the elements in article 263 paragraph 2 of the Criminal Code jo. Article 55 paragraph 1 of the Criminal Code means that the criminal act charged is legally and convincingly proven according to the law.

Odmeravanje kazne i generalna prevencija

The paper deals with the question of whether it is necessary and justified for general preventive expectations to be the immediate basis for sentencing. General prevention (deterrence) should be achieved primarily if not exclusively when prescribing the punishment. The application of criminal law and punishment should demonstrate that the threat of punishment is serious. However, it is not necessary to determine what measure of punishment is needed in a specific case in order to influence others not to commit criminal acts. It is not even possible to determine exactly, but a general assessment is sufficient, i.e. the court's impression that with a measured punishment, general prevention can be achieved, both negative (traditional) and positive, which consists in expressing social condemnation for a criminal offense, strengthening moral and strengthening the obligation to respect the law. It is sufficient for the court to determine the punishment, as the law says, "taking into account" the purpose of the punishment. In particular, the paper points out the unacceptability of stricter punishment due to the expected general prevention. At the same time, the importance of the positions taken in this respect in his works by Jovan Ćirić, to whom this work is dedicated, is pointed out.

Pripremanje krivičnih djela terorizma Međunarodni standardi i krivično pravo Bosne i Hercegovine

On the basis of several universal and regional international documents, Bosnia and Herzegovina, as well as a number of modern states, foresees the criminal offense of terrorism in several different forms of manifestation, but with identical content, characteristics, elements, legal description, legal nature, that is, forms or types of manifestation. It is an extremely serious, dangerous crime, with an international content, that is, with international basis for prescribing criminal responsibility and punishment. Due to the high degree of social danger of various forms of manifestations of terrorism, all modern criminal legislations move the limit of punishment to the previous stage - to the stage of preparation of criminal offenses, the undertaking of which, through physical or psychological activities, creates the conditions or prerequisites for the perpetration of one of the criminal offenses of terrorism in general, or to a faster, easier, simpler or more efficient way. In the positive law in Bosnia and Herzegovina, numerous preliminary actions that precede the perpetration of criminal offenses of terrorism in general or preliminary actions that contribute to their more efficient, successful or better execution are also provided as independent criminal offenses. The paper investigates and problematizes the system, concept, content, elements and characteristics, and forms of manifestation of the preparation of criminal offenses of terrorism in the criminal legislation of Bosnia and Herzegovina, especially in the context of international standards.

Intentional killing as a result of violation of of the laws and customs of war in the context of ill-treatment of prisoners of war

The creative impetus for conducting scientific research on the topic of the study was a rather underdeveloped layer of activity of pre-trial investigation bodies in documenting a certain category of war crimes. At present, we are talking about violations of the laws and customs of war in the context of studying one of the forms of the objective side of a criminal offense - cruel treatment of prisoners of war combined with premeditated murder. Considering the difficult situation with the release of Azovstal’s defenders into “honorable captivity,” a decision that was made at a high state level and lasted from May 16 to 21, 2022, it should be noted that all expectations regarding the implementation of the humanitarian component in accordance with the norms of International Humanitarian Law have not been met. So far, we have received completely different consequences of the desired rescue of the military, who were actually trapped in an enemy trap. Thus, on the night of July 29, 2022, in the former Volnovakha Penal Colony No. 120, located in the village of Molodizhne of the Olenivka Village Council of the Donetsk region (temporarily occupied territory), Russian occupation forces committed a terrorist act, which, according to official data, killed 53 and wounded more than 130 prisoners of war from among the defenders of Azovstal. According to the Ombudsman Dmytro Lubinets, “This is a public execution of officially confirmed, verified Ukrainian prisoners of war who were taken prisoner. According to the Geneva Convention, they were confirmed through the verification procedure by the International Committee of the Red Cross. They were representatives of one military unit of the National Guard of Ukraine...” Unfortunately, due to the complicated and actually suspended exchange of prisoners of war by the occupation authorities, cases of murder (extrajudicial executions) and torture of our military in captivity have become more frequent. Therefore, one of the main tasks of pre-trial investigation bodies should be to tactically correctly and timely document a war crime that is rather complex in its design – violation of the laws and customs of war in the form of ill-treatment of prisoners of war, if it is combined with intentional murder. The timely and correct qualification of such an act should help improve the tactics and methods of investigation by addressing the practical challenges that arise during the pre-trial investigation. First and foremost, it is necessary to ensure clear interaction between several law enforcement agencies (the National Police of Ukraine and the Security Service of Ukraine), whose activities overlap in the plane of jurisdiction. Law enforcement agencies should not only continue each other’s work, but also initiate pre-trial investigations with a clear understanding of the basic algorithm of coordinated actions to prevent loss of evidence with the possibility of further use of the collected evidence in the International Criminal Court. Judicial practice on this issue is currently being formed, but despite this, it is necessary to create and develop a unified algorithm of actions that should be based on the exclusive legality of the evidence obtained. The scientific research conducted in this under-researched area, reinforced by practical experience, will contribute to a deeper understanding of the issues of peculiarities of criminal law qualification and tactics of certain procedural actions during pre-trial investigation in criminal proceedings on the facts of violation of the laws and customs of war, if they are combined with premeditated murder, where the form of the objective side is cruel treatment of prisoners of war. The provisions proposed in this article are intended to be recommendatory for synergy in the work of specialists of pre-trial investigation units and the prosecutor’s office in formulating an algorithm for proving the above facts.

Peculiarities of forensic characterization in the investigation of criminal offenses committed by judges

The article is devoted to the analysis of the degree of scientific development of the issues of criminalistic characterization. The scientific approaches to determining the essence of the criminalistic characterization of crimes in the structure of the investigation methodology are considered. The importance of this scientific category is emphasized. It is noted that one of the most important components in the structure of the forensic methodology is the forensic characterization of a crime. The author reviews the literature in the field of criminal law, criminal procedure, forensics, and operational and investigative activities related to abuse of power or official position by a judge in the administration of justice, and also their detection and investigation. The author presents different approaches to the concept and structure of forensic characteristics in general and, in particular, to the structure of forensic characteristics of acceptance of an offer, promise or receipt of an unlawful benefit. Based on the results of the analysis of court practice on combating undue advantage in Ukraine in recent years, it is established that a significant share of such encroachments falls on the judiciary. The author analyzes the concept and components of the forensic characterization of criminal offenses committed by judges. It is found that its structure includes the following elements: identity of the offender, identity of the victim, method of commission, object of the offense, setting, time and place of commission, motive and purpose of the criminal offense, typical traces of the crime (“trace pattern”). The existence of interrelations between the elements of forensic characterization makes it possible to use a systematic approach in the study of this issue. It is stated that the subject of criminal encroachment is an unlawful remuneration; the author identifies the ways of committing and concealing a crime; the author proposes to divide the ways of direct receipt of unlawful benefit into certain types; the elements of the “trace picture” are revealed; it is emphasized that the most typical places of giving and receiving unlawful benefit by judges are the office, other premises of a particular institution or organization, and public places; the author also emphasizes the characteristic features of the offender and the victim. The analysis of monographs, dissertations and other scientific works on the outlined issues has shown that the fundamentals of the methodology for investigating criminal offenses committed by judges remain undeveloped.