Qualification of child sexting, sextorsion and online grooming

Some characteristics of actus reus of Art. 3011 and of Art. 1561 of the Criminal Code of Ukraine are analyzed. The characteristics of sexting and sextorsion, the subject matter of which is child pornography, and online grooming are revealed. If the participant in the child sexting is an adult who received from the child through a means of communication its image in a sexually explicit manner, his actions must be assessed as the production of child pornography (part 3 of Art. 3011 of the Criminal Code) and its storage (part 1 or 2 of Art. 3011 of the Criminal Code depending on the absence or presence of the purpose of selling or distribution). In this case, the adult participant in the sexting uses a child who photographs or shoots himself in a sexually explicit manner as a «tool» for the production of child pornography. If the participant in the child sexting is a minor (who has reached the age of 16), the responsibility for such acts arises only if he has the purpose of selling or distribution child pornography. If an adult participant in sexting has the purpose to obtain an image of a child in a sexually explicit manner and then threatens to sell or distribute it in order to obtain new such images, then there is a sextorsion that should be qualified as the production of child pornography (part 3 of Art. 3011 of the Criminal Code), the storage of child pornography with the purpose of selling or distribution (part 2 of Art. 3011 of the Criminal Code) and forcing a minor under-18s or under-14s to participate in the creation of child pornography (part 3 or 4 of Art. 3011 of the Criminal Code). If the purpose of the sextorsion is to meet with the child online or in real life to commit any sexual or lewd acts with him or to involve the child in the production of child pornography, such sextorsion should be qualified as the production of child pornography (part 3 of Art. 3011 of the Criminal Code), the storage of child pornography with the purpose of selling or distribution (part 2 of Art. 3011 of the Criminal Code) and depending on the stage of the sextorsion: or as preparation for harassment of a child for sexual purposes, or as an attempt to commit a criminal offense, or as a completed harassment (Art. 1561 of the Criminal Code). Building a trusting relationship by adult with a child on the Internet for a future meeting with the purpose to committing any sexual or lewd acts against him or involving him in the production of child pornography constitutes online grooming and should qualify as preparation for harassment of a child for sexual purposes. Key words: child pornography, sexting, sextorsion, online grooming.

Violence against the person - criminal offenses against human dignity

The article proves the need to determine human dignity as a generic object of violence against a person. The article describes the state of the description of criminal offenses against human dignity under the Criminal Code of 2001 (as of 2021). According to the author, the author considers the presence of violence against a person to be an act of "crime against dignity" in the actions of the group "crime against dignity". The article proves the need to determine human dignity as a generic object of violence against a person. The article describes the state of the description of criminal offenses against human dignity under the Criminal Code of 2001 (as of 2021). According to the author, the author considers the presence of violence against a person to be an act of "crime against dignity" in the actions of the group "crime against dignity". In the content of the article, the author argues that crimes against human dignity include: all forms of domestic violence, discrimination, bullying and stalking. Under these conditions, the main unprecedented objects of these acts is the dignity of man in its psychological sense. It is this dignity that suffers in the case of abusive actions against the individual. The author, however, does not combine the understanding of mental safety and human dignity, because he considers these phenomena not identical. This approach is due to the understanding of the understanding of human dignity as a unity of components: self-assessment of their own qualities, abilities, worldview, their behavior and social significance. The text of the article provides proposals for the prospects of correct inclusion of such acts in the draft Criminal Code in the process of developing Section 4.5. "Crimes against personal freedom and human dignity."

About system legislative viruses and social foundations of creating a new system of the Criminal Code of Ukraine

The article contains critical remarks about the draft of the new system of the Criminal Code of Ukraine, which is presented for discussion by its developers and is characterized by the presence of many new provisions. It is established that this system has significant shortcomings, which are associated with the incorrect reflection in the content of criminal law norms of the essential social features of crimes. To identify such shortcomings in the system of criminal law, the concept of "system legislative viruses" is highlighted and the need to have protection against such viruses in the system is substantiated. The necessity to distinguish between the legislative virus, the negative consequences of which in the form of human rights violations are local in nature, and the system legislative virus, the negative consequences of which are large-scale, is substantiated. Legislative viruses that result in violation of the principle of proportionality between punishment and social characteristics of acts are analyzed. Proposals for improving the system of the Criminal Code of Ukraine have been formulated. In particular, they concern the use of the category "public danger", which must perform a human rights function in the system of the Criminal Code of Ukraine. It is proposed to classify crimes using the social values ​​they encroach on and the extent of the damage that has been or may be caused. Emphasis is placed on the need to allocate at the law enforcement level the severity (danger) of the crime: 1) with particularly mitigating circumstances, 2) with mitigating circumstances, 3) without mitigating and aggravating circumstances, 4) with aggravating circumstances and 6) with especially aggravating circumstances. The court must impose penalties based on these degrees and the legal restrictions associated with them. The necessity of providing legal certainty on the social basis of criminal liability and restriction of rights for committing a crime, as well as on the legislative assessment of cases of simultaneous commission of several crimes and the rules of their qualification is substantiated. It is proposed to supplement the Criminal Code of Ukraine with Article 2-1 "Rule of Law", which will ensure justice in cases of errors made by the legislator and in other cases where there is a discrepancy between formal legal requirements and social characteristics of the crime.

General rules of qualification of a criminal offense taking into account its stages

The conceptual apparatus which is a starting point for qualification of a criminal offense taking into account its stages is considered. General rules for qualifying a criminal offense, taking into account its stages, are proposed.

Public calls for criminal offenses in post-Soviet countries (comparative analysis)

The article provides a comparative analysis of the criminal legislation of post-Soviet countries in terms of criminalization of public calls to commit criminal offenses. The criminal codes of the following countries have been studied: Azerbaijan, Belarus, Armenia, Georgia, Estonia, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, the Russian Federation, Tajikistan, Turkmenistan and Uzbekistan. Common features of criminalization of public appeals in the named post-Soviet countries are established. Their distinctive features in comparison with the Ukrainian variant of regulation are defined. The list of subsequent crimes in the studied codes is not the same, but there are those whose public appeals are typical of the criminal codes of the vast majority of countries, namely – to: a) aggressive war, b) terrorist crimes, c) encroachments on the constitutional order and territorial integrity, d) mass riots. Unlike many European countries, the criminal codes of post-Soviet countries do not provide for universal types of public appeals (ie appeals to crime in general). The maximum of universalization here is calls only for crimes of a certain kind, for example, calls for terrorist crimes or crimes against the state. That is, it is mostly a case-by-case approach to the criminalization of public appeals – responsibility is established for public appeals to certain actions. In addition, the article draws attention to the following: a) the degree of punishment of public calls, that is, the penalties contained in sanctions (unqualified or «simple» public calls are mostly punishable by up to 3 years in prison or up to 5 years), b) the differentiation of responsibilities (aggravating circumstances), c) system and placement of special types of public calls in the structure of special parts of criminal codes.

Prohibition to approach a certain distance and / or to certain persons, to be in a certain place as a measure of a criminal nature (on the example of the Penal Code of the Republic of Poland)

The article analyzes the provisions of the Polish Penal Code in terms of establishing a ban on being in certain environments or places, contact with certain people, approaching certain persons or leaving a special place of residence without the consent of the court, as a kind of criminal measure. Sais about prohibitions to hold a specific position, engage in a certain profession or carry out certain types of economic activity. In the Polish Penal Code, the analyzed prohibitions apply to the perpetrator in the case of an intentional crime combined with violence, and are binding from the entry into force of the court decision in the criminal case. It is known that in Ukraine there are special measures to combat domestic violence in the form of an urgent injunction against the offender and a restrictive injunction against the offender. In its legal positions, the Supreme Court revealed the essence (legal nature) of the restrictive order as a temporary measure of restraint, which is not a measure of punishment for a person. The Supreme Court also justified the legitimacy of the restraining order in the form of a temporary prohibition on the offender to stay and approach real estate, even if he is its co-owner, because he committed domestic violence against relatives. Measures in the restrictive order in relation to the offender are taken to decide on the qualification of his actions and the decision on him in criminal proceedings. However, the danger of continuing or re-committing domestic violence, the occurrence of serious consequences for the victim remains after the case in court. Therefore, prohibitions to approach the victim at a certain distance, to be in a place of residence should not lose their force and relevance, and in turn, begin to play a preventive role as a measure of criminal law. The author proved the importance of expanding the list of «other measures of a criminal nature» by including a ban on approaching a certain distance and / or to certain persons, a ban on being in a certain place in Section XIV of the General Part of the Criminal Code of Ukraine.

Problem of criminal legal qualification of domestic violence in law enforcement practice

Domestic violence is a phenomenon that can take the form of a socially dangerous act and be qualified as a crime under Art. 126-1 of the Criminal Code of Ukraine and other articles of the Criminal Code of Ukraine. It is the correctness of the criminal legal qualification of domestic violence that became the subject of our study. The lack of systematic interpretation of Art. 126-1 of the Criminal Code of Ukraine leads in practice to the fact that the courts decide completely differently on the qualification of actions of a person. After all, domestic violence can be a manifestation of both an administrative offense and a criminally punishable act. That makes it impossible to further apply the restrictive measures of a criminal legal nature, enshrined in Art. 91-1 of the Criminal Code of Ukraine. Such situation has already become the basis for resolution in the order of review by higher courts and formation of a position on the most problematic aspects by the Supreme Court of Ukraine. In particular, in order to avoid the prohibited double conviction or punishment, the proceedings must be combined on a comprehensive basis and form a single whole. This means not only that the goal and the means used to achieve it must complement each other in nature and be linked in time, but also that the possible consequences of such legal response to appropriate behavior must be proportionate and predictable. for the persons to whom they relate. Thus, the purpose of our study is to form a list of issues for the correct criminal legal qualification of actions under Art. 126-1 of the Criminal Code of Ukraine, for the correct separation from the administrative offense under Art. 173-2 of the Code of Administrative Offenses, as well as from other criminal offenses related to domestic violence. The task is to study the conclusions of the Supreme Court of Ukraine, to analyse the case law, to analyse the research conducted by non-governmental international organizations, as well as to analyse the positions of the doctrine of criminal and criminal procedure law on this issue.

On the issue of criminal liability for negligent joint infliction of criminal - illegal consequences

The article is devoted to the consideration of problematic issues related to criminal liability for negligent joint infliction of criminal consequences. Issues related to the negligent joint infliction of criminal consequences do not lose their relevance at the current stage of development of Ukrainian criminal law. The article defines the concept of negligent joint infliction of criminal consequences and provides a thorough description of its mandatory features. It is separately stated that correctly determining the basis of criminal liability of persons who jointly caused negligent damage, qualifying their actions and establishing rules for sentencing them is an important task for law enforcement and therefore it requires detailed justification and elaboration of general theoretical issues. legal consequences and the development of features of such a definition. It is proved that negligent joint infliction of criminally illegal consequences is the commission by two or more subjects of a certain criminal offense, illegal, objectively interconnected and mutually conditioned act, which is part of the objective side of a criminal offense that has a negligent form of guilt, and creates a single, common to all subjects socially dangerous result provided by criminal law. It is established that in case of negligent joint infliction of criminally - illegal consequences there is an objective interdependence and interaction of actions (actions or inactions) of such subjects who took part in achievement of those socially dangerous consequences which are provided by the criminal legislation.

Proportionality of response to criminally illegal behavior of minors

Modern international standards indicate that the basis of criminal law policy to prevent juvenile delinquency should be a child-friendly juvenile justice system. This system focuses on the application of alternative and non-criminal sanctions (warning, reprimand, restitution and compensation). Based on international standards of juvenile justice, we can note their focus on ensuring the best interests of the child, the predominance of sanctions and measures that may have an educational impact, compensation for damages, creating conditions for reconciliation of victims and offenders and eliminating the consequences of crime, ensuring a meaningful life of a teenager in society. Juvenile sentencing is more loyal approach and shown in comparison with adults with regard to property penalties (if the minor has income or property) (parts 1, 3 of Article 99 of the Criminal Code of Ukraine), reduced limits of punishment (parts 1, 2 of Article 100, 101, part 1 Article 102 of the Criminal Code of Ukraine), restriction of using of imprisonment depending on the gravity of the crime and the characteristics of the juvenile. It is established that in addition to ensuring the best interests of the child and the use of as many non-punitive measures as possible against juvenile, it is also necessary to pay attention to other circumstances of the case. In particular, a balance must be struck between the best interests of the juvenile and a proportionate response to his or her behavior. In particular, it is necessary to take into account the repeated commission of criminal offenses, as well as the one-time application of incentive rules to juvenile. And pay attention to alternatives to imprisonment that may be more effective. In particular, mediation and rehabilitation practices can be more effective.

Criminological legislation of Ukraine in the field of road safety

The level of road safety in Ukraine cannot be estimated as high. According to the reports of the Patrol Police, in Ukraine in recent years, on average, 3.5 thousand people die from road accidents every year. An increase in the level of road transport safety determines the development of a theoretical basis for legislation to ensure the prevention of offenses, primarily criminal ones. The criminological legislation in the field of road safety can be such a theoretical basis. The legislation, the norms of which are aimed at ensuring road safety, is significantly branchy and widely held in norms of laws of different legal force, forming, on the one hand, a large layer of legal norms, and on the other, laying the foundations for the prevention of offenses in this area. Criminological legislation in the field of road safety is a separate structural element of the criminological legislation of Ukraine. The subject of legal regulation in this case is public relations in the field of regulation of the prophylaxis and prevention of offenses (both administrative and criminal) in the provision of road traffic. According to their functional purpose, the norms of the criminological legislation of Ukraine in the field of road safety can be divided into conceptual, programmatic, regulatory and preventive ones. Conceptual norms include the norms through which the system of views and constructive ideas of the state about the road safety improving is revealed. The program norms of criminological legislation in the field of road safety include the provisions of documents aimed at the implementation of conceptual norms. Regulatory norms are the norms of legislation aimed at observing the rules, norms and standards for the operation of transport, ensuring the rules for organizing road safety and other prescriptions that determine the rules for road users. Preventive provisions include the norms of administrative and criminal legislation that determine responsibility for violations in the field of road safety and transport operation, thereby performing prophylactic and preventive functions.