Moroz A.O. Socio-legal conditionality of the offense under Article 397 of Criminal Code of Ukraine

The factors of socio-legal conditionality of the offense under Article 397 of Criminal Code of Ukraine are being researched in the article.

The author researches the current viewpoints on the socio-legal conditionality of the offense in detail. Critically analysing them, the author indicates the difference between the social conditionality of the offense under Article 397 of Criminal Code of Ukraine and the reasons of criminalization and decriminalization of socially dangerous acts...

The author proposes the principles of criminalization and decriminalization.

Based on the research, the author offers the following factors of socio-legal conditionality:

- Socio-criminological factor that determines the development of public relations in the sphere of protection of legitimate activity of the advocate or the legal representative of a person regarding the provision of legal advice, and statutory guarantees of their activity and professional secrecy;

- Regulatory factor reflects the conditionality of criminal protection of legitimate activity of the advocate or the legal representative of a person regarding the provision of legal advice, and statutory guarantees of their activity and professional secrecy with the regulations of the Constitution of Ukraine and the other relevant bodies of law. Therefore, the analysis of the regulatory factor, which relates the analyzed activity to the criminal prohibition, is important. This factor is established by the regulations of the Constitution of Ukraine. Thus, Art. 3 of the Main Law states: "the human being, his or her life and health, honor and dignity, inviolability and security are recognised as the highest social value ”;

- Ethical factor of the social conditionality of criminal protection of legitimate activity of the advocate or the legal representative of a person associated with the provision of legal advice. This factor is the main circumstance that proves the possibility, content and quality of the criminal prohibition under Art. 397 of Criminal Code of Ukraine. It demonstrates the compliance with ethical norms during their designing and using. This issue is directly connected with one of the most serious questions, namely the problem of choosing the values and norms that, in our opinion, should influence and regulate the criminal prohibition;

- Cultural-historical factor of the social conditionality of the criminal prohibition under Art. 397 of the Criminal Code of Ukraine. Criminal prohibition must be also considered as the outcome of history and culture of a particular society (it is always culturally and historically conditioned);

- International and legal factor of the social conditionality of the criminal prohibition under Art. 397 of Criminal Code of Ukraine.

Key words: socio-legal conditionality, criminal prohibition, criteria, factors, principles.

Moroz V.G. The concept of the place of a crime as the characteristic of the objective element of a crime

The concept of the place of a crime has a theoretical, lawmaking and practical importance.

The article contains the analysis of the viewpoints regarding the concept of the place of a crime as the characteristic of the objective element of a crime. It is pointed out that the current Criminal Code of Ukraine and criminal law theory did not solve the problem of the definition of the term " the place of a crime”. The author believes that this circumstance prevents the uniform understanding of the place of a crime as the characteristic of the objective element of a crime.

However, the definition of the aforementioned characteristic of the objective element of a crime is necessary and exigent for the determination of the boundaries of criminal law, which is also of a great importance for the substantive criminal law and criminal procedural law.

The author notes that the Ukrainian law-maker has not provided the definition of the term "the place of a crime”. It is stated that such situation leads to the existence of the different points of view on this definition in the theory of criminal law, resulting the occurrence of an unforeseen problems and difficulties while applying current criminal law.

The researcher of the abovementioned problem considers it necessary to define this term, as well as the terminology that is used in the specialists’ definitions on this topic.

The interpretation of the following terms is proposed: "place”, "territory”, "aquatorium”, "space”, "locality”.

A special attention is paid to the issues of the place of so called distance crimes and substantive crimes in the research.

Additionally, the author examines the complicity of a crime as the special form of a crime, and the other related problems. He also proposes the classification and the definition of the place of a crime.

So, the author notes that the place of a crime should be considered as the territory or other place characterized by physical, social and legal features where the criminal activity was started, continued, stopped or finished.

Key words: the place of a crime, the classification of the place of a crime, the element of a crime.

Ponomariova M. S. GENERAL ASPECTS OF CRIMINAL LAW PROTECTION OF THE CULTURAL HERITAGE OBJECTS OF UKRAINE

Protection of cultural heritage of the state, preservation of historical monuments and other objects of cultural value and adoption of measures for returning cultural property to Ukraine are the main state’s tasks proclaimed by the Constitution of Ukraine. This provision has been implemented in Ukrainian legislation pursuant to the requirements of the Convention on Protection of the World Cultural and Natural Heritage adopted in Paris in 1972, which de jure emphasizes state’s obligation to adhere to.

Thus, criminalization of offences against cultural objects, included in the State Register of Immovable Monuments of Ukraine is provided for by Article 298 of the Criminal Code of Ukraine and included in the Section dealing with crimes against public order and morality. Article 193 of the Criminal Code of Ukraine stipulates liability for unlawful possession of another’s property or treasure which has been found or occasionally appeared in possession of a person and which has a special historical, scientific, artistic or cultural value. In our opinion, legislators have wrongly referred the Article to the category of crimes against property as far as it protects a significant object, a property that has a historical, scientific, artistic or cultural value, and should be grouped according to a specific character alongside with socially dangerous acts that infringe on the cultural heritage.

Based on the importance of the cultural heritage of Ukraine for the nation and the international community, there are some significant remarks which refer to the types of sanctions stipulated by national criminal law for the offences against cultural objects and historical monuments. These remarks are laid in the fact that the sanctions neither reflect the exceptional historical and legal value of each object, nor include their uniqueness according to the UNESCO criteria, which results in poor criminal protection and losing them in future.

The legal analysis of criminal laws protecting cultural heritage has shown that international legal obligations undertaken by Ukraine according to the international treaties are not fulfilled to the full extent. Thus, based on the criteria of uniqueness of cultural heritage objects, identified by UNESCO, reasonable sanctions which reflect the degree of uniqueness and importance of cultural objects to the World Heritage and National Heritage shall be established by law.

It is unacceptable to increase the number of objects that are not included in the State Register of Monuments and are outside the criminal law protection because these objects are the part of the cultural heritage of the state and are protected by international sources of law. It is advisable to review the grounds of codification of socially dangerous acts aimed at offences against cultural heritage with a view to grouping them according to a specific character, which allows to emphasize the significance of the property under protection having a historic, scientific, artistic or cultural value.

A proper and fair criminal law protection will certainly not only emphasize the identity of the Ukrainian people and respect for cultural heritage, but also contribute to the international popularization of cultural objects, provide legal preservation of universal cultural monuments and cultural values ​​for future generations, as far as it is a direct obligation of the state, declared by international treaties and the Constitution of Ukraine.

Key words: cultural heritage, criminal law protection, cultural heritage object, cultural heritage protection, implementation and international sources.

Reshnyuk A.V. The subjects or the participants of the social relations and social connection in these relations, concerning health protection of the defence counsel or the person’s representative on the grounds of the activity that is coherent with juridical support.

The structural elements of the components of the crime, foreseen by the article 400 of the criminal code of Ukraine, particularly, the subjects or the participants and social relations in social connections in these relations, concerning health protection of the defence counsel or the person’s representative on the grounds of the activity, that is coherent with juridical support, are investigated in the article.

With the purpose of the optimal discovering the direct object of the crime, that is foreseen by the article 400 of the criminal code of Ukraine, in his research the author corresponds to the structural elements of the object of this crime and, particularly, the subjects or the participants of the social relations and social connection in these relations, concerning health protection of the defence counsel or the person’s representative on the grounds of the activity that is coherent with juridical support.

As a result, of the subject research the author of the article considers such structural element of relations, as social connection in these relations, concerning health protection of the defence counsel or the person’s representative on the grounds of the activity that is coherent with juridical support.

In his article, the author researches the structural element of the social relations and, particularly, the social connection fairly considers, as a mean of the relations. The author underlines that this connection can appear on the level of individual subject’s interaction and the interaction of the human communities and the individuals with the particular communities, as the elements of the society.

As the author underlines, that this social connection appears on the ground of the discovering the criminal cases and the normative base that deals with relations social connection in these relations, concerning health protection of the defence counselor the person’s representative on the grounds of the activity that is coherent with juridical support, and the opinion poll of the workers of the law machinery and courts in such activity form, as securing health protection of the defence counselor the person’s representative on the grounds of the activity that is coherent with juridical support; organizational measures concerning health protection of the defence counsel or the person’s representative; in the legislative security of the defence counsel or the person’s representative; in the questions concerning prevention of the crime foreseen by the article 400 of the criminal code of Ukraine. The author proves that his statement has a practical background.

The author makes a conclusion that for the definition of the direct object of this crime only the social connections, that corresponds to the interests of the whole society but not the interest of the separate individual discretions or preferences, should been taken into consideration. Such can be only the positive relations that are under the criminal law protection.

Key words: an object of the crime, structural elements, a subject, a social connection, health protection of the defence counsel or the person’s representative.

Matviichuk A. O. PRACTICAL PROBLEMS AND TRENDS OF DEFENSE OF A PERSONAL NON-PROPERTY RIGHT TO ENVIRONMENTAL INFORMATION (BASED ON CASE LAW)

This article was prepared as a result of case law with regard to the defense of a personal non-property right to environmental information since year 2006 up to the 1st of May, 2014.

Such trends in this sphere were identified.

1. Non-governmental organizations play key role in defense of a personal non-property right to environmental information: 61% of all complaints, put into court, were put by NGOs.

2. Notwithstanding to statement in par.1 there are only few proactive non-governmental organizations: 77% of all complaints, put into court by non-governmental organizations, were put by one NGO.

3. Results of court proceedings, commenced upon NGOs’ applications, speak of high level of documents preparation. For example: among cases against governmental bodies 55,56% claims were satisfied at first instance and 51,85% -at the final result.

4. Natural persons though try to protect their right to environmental information in courts, such efforts as a rule end with a full fiasco: 37% of cases were put into run by natural persons, but only 5,88% of claims were satisfied at first instance.

5. The reason of such law percentage of satisfied claims of natural persons may be explained by law quality of documents preparations, which is because natural persons mostly do such preparation be themselves (without legal advisers).

6. Business entities do not claim to protect their right to environmental information, though try to speculate with it while protecting commercial interests.

7. As far as 87% of researched cases were heard in administrative courts, it is obvious, that the main offenders of personal non-property right to environmental information are governmental bodies of all levels: from the government and to municipalities. The acknowledged leader is a state body, called to launch The Aarhus convention in Ukraine, - Ministry of Ecology and Natural Resources of Ukraine, the 2nd place – regional branch of this Ministry in Donetsk region, the 3rd place – State Agency for Ecological Investments.

8. Subjects to power of authority not only are main offenders of personal non-property right to environmental information, but are very persistent in protecting their positions and, as a rule, use all possible stages of appeal dragging the case for years.

9. Subjects to power of authority very unwillingly uncover information, that they posses, sometimes stating quite absurd arguments.

10. Object of dispute research shows, that as a rule these are conclusions of state ecological expertise, other document that Ministry of Ecology and Natural Resources of Ukraine and other subjects of informational relations try to hide under label "restricted circulation” (general plans of communities, land surveying documentation, forests surveying materials etc.) or in other ways (account about influence on natural environment, environmental permits, acts of control over channel building etc.).

11. One of the trends mentioned is lowering possibilities of NGOs for protecting rights of natural persons with regard to natural environment by means of constricted legal commentary by the High Administrative Court of Ukraine.

12. Though The Civil Code of Ukraine is the main act of civil legislation, its role is very small: only in one court decision among researched art.293 of The Civil Code of Ukraine is mentioned.

13. Complainants sometimes claims demand for future like "compel the defendant to abstain from doing something in future”, but there is no single court position on this matter.

Such problems in the researched sphere were identified.

1. Little understanding of the Aarhus convention by proceeding parts, sometimes quite the opposite understanding towards narrowing information access possibilities.

2. Evident ignoring of Ukrainian legislation on the part of Ministry of Ecology and Natural Resources of Ukraine and other governmental bodies.

3. Aiding by courts to governmental bodies in their attempts to hide environmental information under label "restricted circulation” harmfully to international obligations of Ukraine with regard to The Aarhus Convention and even The Constitution of Ukraine.

4. Internal inconformity of Ukrainian legislation about access information. First, there is at least one more category on environmental information, inaccessible for community, though it has no restrictions labels. That is international agreements on greenhouse gas emissions. Second, some kinds of environmental information have their own legal regimes, which, though stated by delegated legislation, are approved by courts contrary to art.50 of The Constitution of Ukraine.

5. Self-willed understanding of environmental information by courts.

6. Negative influence of short period of limitation of action in administrative process upon possibilities of subjective rights defense.

Key words: environmental information, ecological information, natural environment.