CRIMINAL LEGAL POLICY: ACCURACY OF CRIMINALIZATION AND CRIMINAL PENALTIES
First of all, the problem of the social function of criminal-law policy raises the question of the expediency of criminal and legal protection of certain public relations, benefits and interests, and hence the scope of the criminal prohibition.
For criminal legal policy is a matter of criminalization and decriminalization of the relevant acts, penalization and depenalization. However, limiting the problem of expediency would only be wrong. At the level of law enforcement expediency determines the use of the appropriate type of punishment, its volume, the issue of release from punishment and its execution, etc.
The feasibility at the encyclopedic level is consistent with the purpose, practical utility, reasonableness, and rationality. At the same time, the goal is a real or ideal end-result of the conscious or unconscious desire of the subject, his activities.
The feasibility of criminal law (as a social function of criminal legal policy) should be considered from two angles of view: from the point of view of lawmaking and in terms of enforcement.
Considering the issue of feasibility from the point of view of lawmaking, first of all, it is necessary to focus on the issue of the scope of criminalization, that is, the feasibility of the adoption of criminal or legal protection of certain objects (the criminalization of the corresponding types of socially harmful behavior that cause or may cause them harm). The feasibility of this aspect is determined by several criteria.
The political and ideological criterion is determined by the correspondence of the forms and levels of political and ideological goals set by the social group in authority, the goals that are recognized by the majority of citizens of the country, legal and moral norms, common sense. It should be emphasized that this criterion often deforms the nature of criminal law policy, and hence the criminal law, allows it to be used in favor of the authorities, which may be anti-democratic, totalitarian. Evidence of such use of the criminal law as in the history of human civilization, and in the history of our country is numerous. Suffice it to mention only the criminal law of the times of the "dictatorship of the proletariat", the Stalinist dictatorship or "stagnation" when it expressed the interests of the narrow circle of the party economic nomenclature. In a democratic country, the political and ideological criterion of feasibility in the criminal-law policy should be understood as the correspondence of the criminalization and penalization scope of the goal of maximizing the protection of the most important social relations, benefits and interests that are determined by society.
Analyzing the feasibility of the current criminal law from this angle, it should be noted that the criminal legal policy which is being implemented in Ukraine today is far from fully in line with the goals and requirements that a majority of society puts forward in criminal law.
The economic criterion is determined by the achievement of the maximum level of protection with the application of minimal material costs, facilities and time. Extremely often, when establishing criminal liability, this criterion is not considered, because of which the costs of criminal prosecution (pre-trial investigation, trial, expenses for the implementation of the punishment imposed, etc.) exceed (and then many times) the damage caused by the crime. This makes the criminalization inappropriate. Today, the scope of the current Criminal Code has doubled from its original version. Has the criminal-law protection of the most important social relations, benefits and interests of the individual and society improved from this? It is believed that no. Many criminal law norms remain unclaimed, dead. And it should not be argued that this is a consequence of the preventive potential of these norms. It is well known that fear of punishment, as a precautionary factor, is in the top ten among such factors. The Criminal Code of Ukraine during its action was supplemented by the norms that provided for criminal liability for acts the public danger of which is quite doubtful. As an example, the Law of Ukraine of November 17, 2005, which added the Criminal Code of Ukraine, was supplemented by Article 212-1 "Evasion of Insurance Contributions to Mandatory State Pension Insurance". Such actions should be assessed as an administrative delict and, first of all, penalties imposed. In practice, losses from conducting pre-trial investigations, court cases, and enforcement of a court decision, which are usually not reimbursed and fall on the shoulders of taxpayers, are added to the losses caused by such actions. In addition, the Criminal Code, as already mentioned, is formulated in a way that provides opportunities for the actual avoidance of responsibility creates opportunities for abuse of the law.
The discrepancy of the criminal law with the criterion of the effectiveness of feasibility can be illustrated by an example of strengthening penalization without realizing the damage caused. Thus, during the validity of the current Criminal Code, Article 259 "A knowingly false declaration on the threat to citizens' safety, destruction or damage to property" has been subject to changes twice in the context of the strengthening of punishment. In the final, for today, its sanctions provide for punishment only for imprisonment. It doesn`t consider the fact that the criminal actions envisaged by this article entail significant economic costs associated with the attraction of human resources, technical means, which often lead to cancellation of transport flights and other negative economic consequences. However, the criminal law does not provide for reimbursement of losses and from this perspective doubt its feasibility. The civil legal mechanism for the recovery of actual damages in this case will be ineffective, as the defendant will be in places of deprivation of liberty and will not have a real opportunity to reimburse him. It is necessary to emphasize that, as a rule, there is not enough of their own property in such persons.
The technical and legal criterion is determined by the need to ensure protection by means of a criminal act, and not by the norms of other branches of law, the rules of the formulation of a criminal law, etc. Today, this issue is extremely urgent relating to the development of legislation on criminal offenses. The views expressed on the inappropriateness of transferring into the Criminal Code of Ukraine the norms of the Code of Administrative Offenses of Ukraine, which provide for liability for delicts having jurisdiction, are a vivid confirmation of the violation by supporters of the approach of transferring the expediency criterion. The need to increase the feasibility of criminal legal policy and criminal law protection the reduction of the Criminal Code as a general path. In this case, it would be optimal to create a separate Code of Criminal Offenses and to transfer to it, according to the agreed criterion, the acts that belong to the category of crimes and to include administrative delicts with judicial jurisdiction in it. But this is a rather long way, and the solution should be fast enough. That is why it is seen that it is necessary to go along the way and at the first stage to allocate, according to the agreed criterion, the group of acts that are to be translated into the category of criminal offenses, while simultaneously regulating the institutions that determine them (stages, complicity, plurality, etc.). Only after the second stage start building an independent Code of Criminal Offenses.
Relating to the issue of the allocation of criminal offenses and their regulatory attachment, the proposal put forward by the Lviv Criminal Justice Forum on the establishment of an independent Code of Public Offenses, which would include all public offenses, ranging from local and ending to crimes, cannot be kept aloof, which are stipulated by the norms of all branches of law today. At first glance, such an idea is utopian. However, a more in-depth analysis gives reason to think and recognize its promise, including from the point of view of expediency. However, you cannot agree with all the ideas of the authors, but the basis for discussion, of course, exists.
The technical and legal criterion also defines the internal structure of the Criminal Code, the structure of the article and norms, the use of the relevant terminological characteristics of the act, etc.
An important aspect of this criterion is the variability of criminal legislation. The latest data on this subject are simply shocking. Thus, as of January 1, 2016, the Criminal Code of Ukraine changed 726 times. Of the 339 articles, changes were made in 322 articles. To the general part of the change was introduced 110 times, to a special - 616 times. A special part was supplemented by a new article 71. There have been cases when changes to the same article were made within two days. At the same time, the act was initially decriminalized at all, and after a day it was again recognized as a crime. But that's not all. According to I. B. Meditskyi, for today there are more than 100 bills, which provide for amendments to the Criminal Code in the Verkhovna Rada of Ukraine. These bills provide for amendments and additions to the 226 articles of the Criminal Code of Ukraine. The question arises about the feasibility of such changes? The legislator probably forgot that the law was created, first, for the ordinary citizen, who should manage it in everyday life. But can the average citizen governed by law from such stress it is difficult to be possessed of even experts in the field of criminal law?
Expanding the scope of the criminal prohibition in the history of domestic criminal law to achieve "higher goals" (falsity) led exclusively to unjustified repression, the formation of a cult of person. This was largely contributed by the Institute for the analogy of the criminal law, which was widely used in practice, the violation of the principle of reversal of the criminal law in time (see, for example, the case "Faybyshenko and Rokotov"), the use of punishment without guilt, but only based on "social danger "of a person (for example, responsibility of" family members of the traitors of the motherland"), etc.
It should be noted that falsity can take place not only in the criminalization of acts, but also in the implementation of decriminalization. We all remember the changes to the article. 365 of the Criminal Code of Ukraine to release the former Prime Minister of Ukraine Yulia Tymoshenko. The fact that after these changes from criminal responsibility were released hundreds of other criminals, the legislator was not interested.
These, as well as other violations, justified by so-called expediency (in its understanding by the social group that was in power), led to the violation of the basic principle of criminal law - nullum crimen nulla poena sine lege.
The same can be said about the expediency of solving penalization issues. The rate for the maximum punishment in the form of deprivation of liberty, which took place in the USSR (in some years, the percentage of convicted persons until actual deprivation of liberty reached 60-62%), was not only inappropriate, but rather inappropriate, leading to actual criminalization of the population of the country is an increase in the percentage of convicted persons.
Significant changes in this did not happen during Ukraine's independence. The reason for this is, first, that the new bourgeoisie, the oligarch, who rooted in the class of the Soviet nomenklatura with the inherent "rules of the game" (relations), came to power in Ukraine. In fact, today in our country there are two societies, namely, a young civil society that has not yet sufficient strength to come to power, and an old, experienced society, which in essence is a "criminal society" and is independent and self-sufficient, the criminal ideology of a large community, which is united not only by ideology, but also based on criminal substance, politics, manipulation of legislation, abuse of law, usurpation of control systems, budgeting, financing, fiscal and law enforcement, and even in a certain way, culture.
The economic feasibility criterion is also related to the dynamics of changes to the Criminal Code of Ukraine, which are discussed below. Here we only note that the instability of legislation has a significant impact on the cost-effectiveness of its application, which is well-known.
The current state of criminal law protection (the amount of criminalization) carried out by the norms of the Criminal Code of Ukraine clearly indicates its non-compliance with certain criteria, that is, it is inappropriate. The legislator criminalizes acts, without considering the feasibility criteria, seeking to capture the maximum range of types of behavior with prohibitions and criminal responsibility. The above data on the changes made to the Criminal Code during the years of its existence clearly confirms this. Attempts to justify criminalization with the expediency of strengthening protection, strengthening responsibility (without considering its objective criteria) may lead to the formation of a police regime, and not to the development of democracy.
Quite important is the question of the appropriateness of enforcement, which should be considered from two points: from the point of application (non-application) of the criminal law and from the point of view of the use of punishment and release from punishment and his serving.
It is believed that the question of the possibility (impossibility) of application (non-application) of a criminal law, based on its expediency in a democratic country, cannot be raised at all. At the heart of this constant is the principle dura lex, sed lex, formulated by ancient Roman lawyers. Under the conditions of a democratic criminal law built on the criteria of expediency, the law must be applied always, everywhere and in relation to all those who violated it. There can be no selective application of the law. None expediency it cannot be justified. Unfortunately, modern enforcement makes it possible to argue that this provision is not always applied. The important issue pointed out is another aspect: the application of a criminal law on grounds of expediency in cases where it should not be applied (that is, in the absence of evidence of a crime in a person's actions). Prior to that, approximately and application on the grounds of expediency not the law that should be applied in a case. At the same time, officially it is never mentioned that this is done precisely to achieve expediency, although "between lines" read the same way. Unfortunately, such cases are fixed in our modern judicial and investigative practice.
Political confrontation between civil and criminal societies also have a corresponding effect on criminal law, determine its expediency.
"Criminal" and civil society are professing different ideologies and differently determine the vectors of criminal-law policy. It depends on the community's sense of justice, on ideology. It can be the legal consciousness of most of society or based on group legal consciousness. In this case, the social group can be both with a positive sense of justice, and with one that conflicts with the legal consciousness of most of society. In the second case, the state criminal legal policy will not express the interests of the majority, which is inherent in democratic countries, and its expediency will be minimal, as it will express the interests of only a separate group that is in power. In this case, such a policy will be contrary to the general social interests and, of course, will not be expedient, will not perform its function. The latter, unfortunately, is inherent in our society.
The ideology of civil society is liberal-democratic, while the ideology of a "criminal society" is based on the ideals of Soviet-type conservatism, and criminal legal policy is in the hands of authoritarian leaders with arms against man. The vector of criminal legal policy today is directed, first of all, to protect the interests of the minority, not the majority.
However, changing the social request, the expectation of civil society "the wind of change" cannot but affect the criminal legal policy. Its humanization (return to the person) and democratization (return to society) are the only way out of an almost "hopeless" situation, when in the new conditions of development of society and civic activity the obsolete mechanisms of inappropriate use of criminal liability and punishment are used.
Pavlo Lvovych Fris
Head of the Department of Criminal Law at the Vasyl Stefanyk Precarpathian National University, Doctor of Law, Professor
