Novelization of the provisions of the Criminal Code on circumstances that exclude a criminal offense under martial law

Abstract

The article is devoted to the analysis of lawful behavior of civilians, who during and in order to protect Ukraine cause harm to the aggressor state. Relevant amendments to the Criminal Code of Ukraine (Articles 43-1 and 22 of the Final and Transitional Provisions), which were introduced during the large-scale war with Russia, have been studied. It has been established that both of these legal norms provide for a subjective right, but not a legal obligation, of an individual (not a combatant) to harm the lives of soldiers and government officials of the aggressor state, property interests of the aggressor state, etc. The basis for a person to exercise this subjective right has been determined. The signs that the lawful behavior of a person defending Ukraine from foreign aggression should correspond to are established. In particular, it is established that such conduct must be directed exclusively against the interests of the aggressor state and may not harm anyone else's interests. The lawful infliction of harm is possible at any time from the imposition of martial law to its termination. The purpose of the lawful establishment of the school is solely to protect Ukraine from foreign aggression. The limits of lawful infliction of harm to the aggressor are separately analyzed and it is concluded that the current criminal legislation of Ukraine allows the possibility of inflicting any kind and amount of harm to the aggressor. On this basis, it was concluded that it is impossible to exceed the limits of lawful harm to the aggressor, and hence – the impossibility of criminal liability for exceeding such limits. A number of recommendations for courts and pre-trial investigation bodies on the practical application of Art. 43-1 and paragraph 22 of the Final and Transitional Provisions of the Criminal Code. Separately formulated and substantiated proposals for amendments to the Criminal Code of Ukraine aimed at improving the analyzed norms.