MEASURES OF THE CRIMINAL LAW AIMED AT LEGAL PERSONS FOR COMMISSION OF TERRORIST CRIMES: INNOVATIONS ANALYSIS

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Problem setting. On May 23rd, 2013, the Verkhovna Rada of Ukraine passed the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine to Implement the Action Plan for the European Union Liberalization of the Visa Regime for Ukraine, Regarding Liability of Legal Entities” (hereinafter called the Law on Liability of Legal Entities). This Law was adopted pursuant to the European Union – Ukraine Visa Dialogue, which required the reform of Ukrainian anticorruption legislation as a part of the action plan on liberalization of the EU visa regime for Ukraine [5]. Moreover, it was caused by commitment of Ukraine to a number of international acts, including the UN Convention against Transnational Organized Crime and Corruption, Criminal Law Convention on Corruption of the Council of Europe, Convention on Combating Terrorism of the Council of Europe and others [7].

This law was the third and finally successful attempt to establish criminal liability for legal persons: the first was a suggestion made back in 1993 – 1997 in one of two projects of the Criminal Code of Ukraine (hereinafter called the CCU), and the second was supposed to be implemented in 2010 – 2011 along with a package of new anti-corruption laws. In early 2013, the Verkhovna Rada of Ukraine was filed by a similar bill, which was rejected in April, and then on May 14th, 2013, deputies of different parliamentary factions introduced compromissory bill that was consequently adopted by the parliament.

Law on Liability of Legal Entities will come in force on September 1st, 2014, and therefore the problem of criminal liability of legal persons in general is particularly topical. Furthermore, of a special interest is the application of measures of criminal law for committing of crimes, stipulated in Art. 258 – 258-5 of the CCU (hereinafter called the terrorist crimes).

Last scientific researches and publications analysis. Such prominent Ukrainian and Russian scientists researched the issue of bringing legal person to criminal liability: Tagantsev N., Emelyanov V., Kraynyk G., Poznyshev S. and others. However, has not been done comprehensive research of measures of criminal law aimed at legal entities for commission of terrorism offences in the context of changes in the Ukrainian criminal law.

Formulation of the article’s purpose. The task of this research is to provide a detailed analysis of the appropriateness of criminal liability of legal entities in general and evaluation of innovations in Ukrainian criminal law concerning the liability of legal entities particularly.

The statement of basic material of investigation. As it is known, according to the current CCU, criminal, notably of the terrorist crimes, can only be a sane person who committed the crime at the age when he can face criminal responsibility due to the law (Art. 18 of the CCU). For a long period of time Ukrainian legal paradigm of understanding of criminal liability did not recognize legal entities as criminals, since this would be a contradiction to the principle of personal responsibility [6, P. 212]. On the contrary, the vast majority of states have long been successfully applying institution of criminal liability of legal entities for committing different crimes. Moreover, these states belong both to the Anglo-Saxon system of law
(the USA, Canada, the UK) [7], and to the Romance-Germanic (Denmark, Lithuania, France, the Netherlands etc.) [8].

Among European countries only Bulgaria, Italy, Germany, Ukraine and Russia are using administrative sanctions against legal entities. However, Bulgaria is currently in the process of drafting new legislation that will provide the criminal liability of corporations [8]. Significant changes, the contents of which are discussed below, are also expected in Ukrainian criminal legislature.

Russian scientists in the field of criminal law characterize legal persons as impossible to apply the appropriate criminal penalties to. They reckon that the reason for that is the legal nature of legal entities: they are intrinsically fictitious, and thus they lack the will, an integral part of the guilt – to commit an action in general, and socially dangerous one in particular. Considering this, it is impossible to prove the guilt – a mandatory feature of the subjective side of the each crime – of the legal entity. They also states that such measures of criminal coercion can hide the real criminals who are guilty of committing crimes that the legal entity will face criminal liability for [6, P. 213 – 215].

However, such statements seem to be doubtful and hopelessly outdated. Solution for these problems has been found long ago: supporters of the criminal liability of legal entities indicate that the objectification of the will can only be found in purposeful action (inaction), the act of both physical and legal person, and that is the only form in which will can be expressed. In addition, it is claimed that the principle of individualization of punishment creates the problem of a technical nature only, namely the problem of burden-sharing of criminal responsibility, since the liability of legal persons does not exclude the criminal liability of individuals [8]. All represented above has influenced principles of the Law on the Liability of Legal Entities, which this article is devoted to.

Mentioned law amends the General Part of the CCU, which is supplemented by Section XIV-1 Measures of criminal law aimed at legal entities. Thus, according to p. 1 of the Art. 96-3 of this Section, the grounds for the application of measures of criminal law to legal entities are:

  • commission of any of the crimes specified in Art. 209, 306, first and second parts of Art. 368-3, first and second parts of Art. 368-4, Art. 369, 369-2 of the CCU on behalf of and in interest of the legal entity;
  • commission of any of the crimes specified in Art. 258 – 258-5 of the CCU by an authorized person on behalf of the legal entity [6].

The object of research of this paper is analysis of the last point, namely grounds of liability of legal persons on whose behalf terrorist crimes are committed. Furthermore, the p. 1 of the Art. 96-9 of this Law envisages the types of measures of criminal law for committing terrorist crimes: the basic one is elimination and additional is confiscation of property.

Thus, it is believed that the adoption of the discussed law is ​​a significant step forward in the process of fighting against crimes in general and terrorist crimes in particular. Moreover, these innovations cannot be regarded as groundless since international treaties, ratified by the Verkhovna Rada of Ukraine, and national legislation, determined its foundation.

Proof of this is that pursuant to Art. 10 of the Council of Europe Convention on the Prevention of Terrorism, each Party shall adopt such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal entities for participation in the offences set forth in Articles 5 to 7 and 9 of this Convention. Additionally, it is noted that such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offences [1]. The latter statement is reflected in amendments to the Criminal Procedure Code of Ukraine, caused by adoption of the Law on Liability of Legal Entities. These changes, complemented by the p. 8 of the Art. 214 imply that information about the legal entity, whom the measures of criminal law can be applied against, is registered in the Unified register of pre-trial investigation by the investigator or prosecutor immediately after person has received notice of being suspected for commission of any of the crimes above on behalf or in interest of the legal person. A legal proceeding against the person is done simultaneously with the criminal proceedings in which the person is informed about suspicion [6].

Furthermore, according to Art. 24 of the Law of Ukraine “On Combating Terrorism”, the organization, that is responsible for the commission of the terrorist act and declared a terrorist by the court, must be eliminated and its property be confiscated [3]. Currently, there is no legislation that explains, how to implement the procedures, described in those legislative provisions. However, it is obvious that the elucidation of the facts and circumstances of the committing of actions, which constitute the objective side of the crime, should occur in criminal proceedings. Ukraine is moving along the path that has already been passed by most of the world by recognizing the possibility of prosecution of legal entities in accordance with the principles of criminal law [8].

It should, however, be taken into consideration, that the Law on Liability of Legal Entities establishes not criminal, but quasi-criminal liability of legal persons, eliminating the necessity to amend the provisions of the CCU on questions of the perpetrator, the grounds of liability and subjective side of the crime. Therefore, under the provisions of the law mentioned above, measures of criminal law, but not a punishment, are applied to legal entities. This approach is not unique Ukrainian experience, since similar solutions of the problem is practiced by Sweden, Poland, Slovakia and Azerbaijan [8].

Conclusion. Innovation in Ukrainian criminal law on the liability of legal persons is a step forward in the theory and practice of combating crimes in general and terrorist crimes in particular.

 

REFERENCES

  1. Конвенція Ради Європи // Офіційний вісник України. – 2007. – № 65. – Ст. 2536.
  2. Кримінальний кодекс України від 5 квітня 2001 р. // Відомості Верховної Ради України. – 2001. – № 25-26. – Ст. 131.
  3. Про боротьбу з тероризмом: Закон України від 20 березня 2003 р. // Відомості Верховної Ради України. – 2003. – № 25. – Ст. 180.
  4. Про внесення змін до деяких законодавчих актів України щодо виконання Плану дій щодо лібералізації Європейським Союзом візового режиму для України стосовно відповідальності юридичних осіб : Закон України від 23 травня 2013 р. // Офіційний вісник України. – 2013. – № 47. – Ст. 1686.
  5. Ukraine: Criminal Responsibility for Legal Entities Introduced : [Електронний ресурс]. – Режим доступу : http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205403620_text
  6. Емельянов В. П. Терроризм и преступления с признаками терроризирования: уголовно-правовое исследование. – СПб.: Юридический центр Пресс, 2002. – 291 с.
  7. Крайник Г. С. Теоретичний і практичний аспект визнання юридичної особи суб’єктом злочину / Г. С. Крайник / : [Електронний ресурс]. – Режим доступу : http://nauka.jur‑academy.kharkov.ua/download/el_zbirnik/1.2013/Krainik.pdf
  8. Рябошапка Р. Г. Закон про відповідальність юридичних осіб / Р. Г. Рябошапка / Бюлетень Міністерства юстиції України. – 2013. – № 11. : [Електронний ресурс]. Режим доступу : http://tiukraine.org/system/files/docs/news/quo_vadis.pdf

 

У статті розглянуті особливості змін українського кримінального законодавства стосовно відповідальності юридичних осіб. Зокрема, досліджено питання застосування до них заходів кримінально-правового характеру.

Ключові слова: юридична особа, суб’єкт злочину, заходи кримінально-правового характеру.

 

The article describes the features of changes in Ukrainian criminal legislation concerning liability of legal entities. In particular, the questions about application of measures of the criminal law to legal persons were researched.

Key words: legal entity, subject of crime, measures of the criminal law.

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