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Draft Law on Offences. Hidden Rocks of the Document

31.08.2016

Iryna Kuzina, attorney, Head of Kharkiv office at Ilyashev & Partners Law Firm
Source: Ukrainian News

The Draft law No. 2897 “On introduction of amendments to certain legislative acts of Ukraine regarding establishment of criminal offences” was registered by Verkhovna Rada of Ukraine on May 19, 2016 and prepared for the first reading.

In mass media certain representatives of law-enforcement agencies consider the new law to be over humane and as such “contributing to criminal outrage”. However, I came to absolutely opposite conclusions.

Now the responsibility shall be incurred for:
– administrative offences;
– misdemeanors;
– crimes.

The difference between these legal categories is defined depending on their implications and extent of the damage inflicted.

Among the novelties of the legislation are the criteria of considerable, large and especially large amount of harm or other implications of guilty actions which were clearly defined and unified for the whole Criminal Code of Ukraine.

The legislator introduced a notion of “a calculation unit” for qualification of crimes. The amount of such unit constitutes 30 hryvnias (Article 10 of the Criminal Code).

Now the categories of the scale of harm vary depending on articles and groups of articles and are indicated in the notes to the Articles. Calculation of the scale of harm is tied to the non-taxable minimum amount of wages of citizens which is equal to (with the aim of qualification of crimes) the tax social benefit – UAH 689 at the moment.

What does this mean in practice?

For example, pursuant to Article 212(1) of the Criminal Code of Ukraine tax evasion is incriminated if the sum of indebtedness constitutes a considerable amount. Now it is UAH 689 000.00, and according to the draft law – UAH 30 000.00.

In this example we see criminalization of actions which previously brought no criminal responsibility (thus, making it to be the process which is contrary to humanization).

Changed was also the classification of crimes which will be divided into:
– non-serious;
– serious;
– especially serious.

For the first time the legislator introduced the rules of qualification of crimes.

Substantially changed was the system of fines. Now the notion of “penalty unit” is used.

One penalty unit (for an adult) constitutes 2 calculation units = UAH 30 *2 = UAH 60.

The basis now constitutes a non-taxed minimum of people’s incomes in the amount of UAH 17.00. However, it cannot be definitely said that the fines are growing in absolute terms.

For example, under the mentioned Article 212(1) of the Criminal Code “tax evasion” the amount of fine varies from UAH 17 000.00 to UAH 34 000.00, and according to the new law, with consideration for new rates of fines, the amounts of fines will range from UAH 3 060.00 to 18 000.00.

Therefore, the sum of the fine under Article 212 of the Criminal Code of Ukraine has been decreased. However, in other instances the situation is absolutely different.

In relation to theft according to Article 185(1) of the Criminal Code the minimum amount of fine has been increased from UAH 850 to UAH 3 060. The same applies to another non-violent crime – robbery (Article 186(1)).

If (as in the aforestated example) the guilty person is not able to settle the fine there is no other alternative as to resort to arrest or deprivation of freedom of such person for up to three years. Re-calculation of the non-settled fine is also possible only for limitation or deprivation of freedom. Among milder punishments – public or correctional works – were excluded from the penal part of the mentioned article.

And it means not humanization, but actual tightening of the punishment.

The amount of fine cannot be less than the amount of the property damage inflicted even if this sum is higher than the sum stipulated by the penal part of an article of the Criminal Code (Article 53 (2)(2) of the Criminal Code of Ukraine). At the same time maximum limitation amounts of fines in such cases constitute UAH 6 000.00 for punishable offences and UAH 240 000.00 for crimes.

As for the offences the following was stipulated:
1. New version of the Criminal Code will contain Book 2. “Punishable offences” which will include:
– about 100 ordinary elements essential to the offences transferred from the Code of Ukraine on administrative offences;
– about 100 ordinary elements essential to the offences transferred from the Criminal Code of Ukraine (minor crimes);
– about 80 of ordinary aggravations (committed repeatedly, by a group of people etc.).

2. Any public order offence will bring criminal responsibility (taken out of administrative responsibility). Administrative offices only include actions committed against the public management system, violation of certain rules (mostly out of negligence).

3. Pre-trial investigation will be held under the simplified form (inquest) and is regulated by current Criminal Procedure Code (Chapter 25).

4. Punishment imposed for a punishable act:
– fine;
– deprivation of the right to occupy certain positions or be engaged into certain activities;
– public works;
– corrective works;
– employment limitations; and
– arrest.

5. Punishment for a punishable offence may be only real and release with trial period (Article 75 of the Criminal Code of Ukraine) is not applied.

6. Guilty verdict does not bring a criminal conviction (Article 88 (1)(1) of the Criminal Code of Ukraine).

7. Term of limitation under the offences constitutes one year.

The Draft law cannot be regarded only as the draft law on punishable offences. Amendments are introduced at the level of criminal and legal doctrine to the main definitions and approaches towards solution of criminality problems. And these are the matters towards which the deputies must be particularly cautious.

 
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