ВІДПОВІДАЛЬНІСТЬ ЗА ПОСОБНИЦТВО ДЕРЖАВІ-АГРЕСОРУ: ПРОБЛЕМИ КВАЛІФІКАЦІЇ ТА ВДОСКОНАЛЕННЯ КРИМІНАЛЬНОГО ЗАКОНУ

Abstract

From the moment of the open attack by the Russian Federation, the issues of criminal law response to encroachments on the foundations of Ukraine’s national security, which have not been resolved since the beginning of the war in 2014, have reemerged. Among the most urgent was the question of whether provisions of criminal law in force as of February 24, 2022 ensured the possibility of providing a proper assessment of the actions of persons who in various forms assist the aggressor state. The first decision made in order to solve this issue was the introduction of Article 111-1 «Collaborative activity» to the Criminal Code of Ukraine. Due to the belief of the People’s Deputies of Ukraine in the inadequacy of such a legislative step, another criminal law prohibition has appeared – Art. 111-2 «Assistance to the aggressor state». The purpose of the research is in critical understanding of the debatable aspects of the criminal law novel about aiding the aggressor state, based on the results of which scientifically based recommendations should be developed in order to improve relevant provisions of the current criminal law and practice of its application. It has been proven that, despite the noble intentions of the parliamentarians, the inclusion of Art. 111-2 «Assistance to the aggressor state» has increased both the conflicting nature of the domestic criminal law and the legal uncertainty partially inherent in it, and also forces us to once again talk about excessive criminalization. Among the achievements of the legislative work related to the construction of the criminal law prohibition dedicated to aiding the aggressor state, one can only include the non-use in the current wording of Art. 111-2 of the Criminal Code of unjustifiably abstract phrases «other voluntary interaction with representatives of the aggressor state» and «any cooperation with representatives of the aggressor state». Based on the example of criminal law assessment of such manifestations of assistance to the aggressor state, such as the transfer of material resources to the armed formations of the aggressor state and the implementation or support of the decisions and/or actions of the aggressor state, armed formations and/or the occupation administration of the aggressor state, the problematic nature of differing analyzed crime from collaborative activity, treason and justification, recognition as legitimate, denial of armed aggression of the Russian Federation against Ukraine, glorification of its participants has been demonstrated. The problem, which has risen as a result of the partially inappropriate duplication of legislative material, is proposed to be solved in one of three ways to optimize the articles of the Criminal Code on liability for treason, collaborative activity and assistance to the aggressor state.