Artificial intelligence in Ukrainian traditional categories of criminal law

6. Could legal persons be held criminally liable for AI-related crimes committed for their benefit in Ukrainian law? According to the Criminal Code of Ukraine, a legal entity is not a subject (persona) of a crime, accordingly, it cannot bear legal responsibility. But with regard to legal entities, the Criminal Code of Ukraine contains Section XIV-1 “Measures of a criminal nature against legal entities”.

7. Are forms of secondary liability applicable to AI-related crimes? At the level of legislation this issue is not resolved. According to the current legislation of Ukraine, legal entities are not subject (persona) to criminal liability. At the same time, as noted above, measures of criminal law may be applied to a legal entity. In addition to the grounds for the use of such measures in the Criminal Code of Ukraine, we consider it appropriate to provide for the possibility of their use if employees or officials of the legal entity committed in favour of the legal entity or third parties encroachment on privacy. In our opinion, with the further spread of artificial intelligence technologies, this segment of the relationship will be most vulnerable to abuse by legal entities.

8. Is the wording of existing offences (in particular, computer crimes and cybercrimes) capable of including illegal acts committed through or against an AI system? A comparative analysis of the Convention and the Criminal Code of Ukraine makes it possible to establish that most of the acts provided for in the Convention are recognized as crimes under Ukrainian law. Such acts include: illegal interception (Articles 163, 361, 362 of the Criminal Code of Ukraine); interference with data (Articles 361, 362 of the Criminal Code of Ukraine); interference in the system (Article 361 of the Criminal Code of Ukraine); crimes related to child pornography (Article 301 of the Criminal Code of Ukraine); forgery related to computers (Articles 358, 366 of the Criminal Code of Ukraine); fraud related to computers (Part 3 of Article 190 of the Criminal Code of Ukraine). The acts provided for in the Additional Protocol to the Convention are covered by Art. 161 of the Criminal Code of Ukraine, which establishes liability for violation of equality of citizens depending on their race, nationality or religion, and the general rules of the Special Part of the Criminal Code of Ukraine, which provide for crimes against freedom of conscience (Articles 178-181 of the Criminal Code of Ukraine).

At the same time, national criminal law, unlike the Convention, does not provide for liability for such an act as intentional access to all or part of a computer system without any right.

Note that, like the distribution or sale of malicious software, illegal access cannot be considered an encroachment that poses an independent public danger. Therefore, in the process of discussing changes to the Criminal Code of Ukraine, a proposal was made to criminalize unauthorized access as a qualifying feature of encroachments on computer data Karchevskyi, Mykola (2012) “Kriminalno-pravova okhorona informaziynoi bezpeki Ukraini” [Criminal law protection of information security of Ukraine] 2012 monografia / M. V. Karchevskyi; MVS Ukraini, Luganskiy dergavniy universitet im. E. O. Didorenka [Ministry of Internal Affairs of Ukraine, Luhansk State University of Internal Affairs named after E. O. Didorenko]. Lugansk: RVV LDUVS im. E.O. Didorenko, 2012. p. 263 (in Ukrainian)..

National criminal law does not explicitly provide for liability for actions such as: 1) intentionally selling, distributing or otherwise providing for use computer passwords, access codes or similar data that can be used to access all or part of a computer system with the intention of using it to commit any of the crimes listed in Articles 2 to 5 of the Convention; 2) possession of devices, including computer programs designed or adapted primarily for the purpose of committing any of the offenses listed in Articles 2 to 5 of the Convention, or computer passwords, access codes or similar data by which access can be obtained to all or part of the computer system with the intention of using it to commit any of the offenses listed in Articles 2 to 5 of the Convention, with the intention of using these items to commit any of the offenses listed in Articles 2 to 5.

However, the existence in the national legislation of provisions on criminal liability of accomplices and definitions of such concepts as “preparation for a crime”, “attempted crime” suggests that although these acts are not expressly provided by the Criminal Code, their legal assessment as crimes is possible Ibid. p. 265..

The so-called “computer crimes” (in the narrow sense) are provided for in Section XVI of the Criminal Code of Ukraine (Articles 361-363-1). The main statistical indicators of this group of crimes for the last 5 years (2016-2020) are the following: the number of recorded criminal proceedings (registered crimes) increased from 865 (2016) to 2498 (2020); the number of convicts increased from 24 (2016) to 56 (2020). The vast majority of persons were convicted of unauthorized interference with computer equipment (Article 361 of the Criminal

Code of Ukraine) and illegal actions of persons entitled to access information (Article 362 of the Criminal Code of Ukraine). Starting from 2018, the number of convicted persons for selling or distributing malicious software or hardware (Article 361-1 of the Criminal Code of Ukraine) and information with limited access (Article 361-2 of the Criminal Code of Ukraine) is growing.

9. Clarify whether, for the purpose of criminal liability, the state of mind (e.g. dolus) on the part of the human agent who designed / programmed / developed / produced / circulated / marketed / used the AI system shall include the exact and concrete modus operandi of the AI system in committing the offence. According to the existing legal doctrine and norms of law, the subject of a crime (the person who designed, programmed, developed, manufactured, distributed, sold, used an AI system) must: 1) know the subject of the crime (the methods of operation of the artificial intelligence system) and through it know the object of the crime (those social relations which are infringed by the crime); 2) foresee, at least in general terms, probable or unavoidable consequences; 3) to directly wish the onset of such consequences (direct intent - Part 2 of Article 24 of the Criminal Code of Ukraine), or consciously allow their occurrence (indirect intent - Part 3 of Article 24 of the Criminal Code of Ukraine), or carelessly rely on their prevention (criminal arrogance - Part 2 of Article 25 of the Criminal Code of Ukraine); 4) did not foresee the possibility of the onset of such consequences although he or she was obliged to foresee them and to have such a possibility (criminal negligence - part 3 of article 25 of the Criminal Code of Ukraine).

10. Assuming that the crime is caused by the autonomous “conduct” of the AI system, could the person who designed / programmed / developed / produced / sold / used of the AI system be held criminally liable if he had knowledge of its autonomous learning and decision-making capacity? In the case at hand, such a person should first of all warn all other subsequent consumers, for example, in a wrapper license, about the mentioned properties of the AI. In fact, this may remove subsequent liability. In the same case, if there is no warning, the developer or other person may be liable for the latent defects of his product.

11. Are there in your domestic legal system cases of criminal liability for negligent or reckless conducts which can be applied when a crime or an illegal result is caused by conduct consisting in programming, producing or making use of an AI system? Such cases can be described by the following normative formulas. Article 25 of the Criminal Code of Ukraine. Carelessness and its types.

1. Negligence is divided into criminal illegal self-confidence and criminal illegal negligence. 2. Negligence is a criminal illegal self-confidence, if a person foresaw the possibility of socially dangerous consequences of his action (action or inaction), but recklessly hoped to prevent them. 3. Negligence is a criminal unlawful negligence if a person did not foresee the possibility of socially dangerous consequences of his action (action or inaction), although he should and could have foreseen them.

As stated earlier, legal doctrine and legislation do not provide for corporate criminal liability and the criminal liability of legal persons. Any defects in the programming, creation, or updating of the AI system are just as important as similar defects in any other product, method, or service. Administrative, civil, or criminal liability may apply in individual cases.

In the area of IT regulation, there are no specific positive obligations, other than the usual ones for all goods and services. In terms of criminal law, the general standard of care and possible criminal liability is formulated as follows.

Article 227 of the Criminal Code of Ukraine. Deliberate introduction of dangerous products on the Ukrainian market (release on the Ukrainian market): Deliberate introduction into circulation (release on the market of Ukraine) of dangerous products, i.e. such products that do not meet the requirements for product safety established by regulations, if such actions are committed on a large scale - shall be punishable by a fine of 3,000 to 8,000 non-taxable minimum incomes of citizens with deprivation of the right to hold certain positions or engage in certain activities for up to three years. Note. The introduction into circulation (release on the market of Ukraine) of dangerous products made in large quantities should be considered the introduction into circulation of products whose total value exceeds five hundred non-taxable minimum incomes.

The current legislation of Ukraine does not provide for such forms of liability as secondary liability or indirect violation.

4. Adaptation of Traditional Criminal Law Categories and academic debate

Traditional criminal law asserts that a person can be held liable only for those acts which were covered by his consciousness. Even without reference to AI, such a case (going beyond the agreement between accomplices by one of them) is referred to as the “excess of the perpetrator”. Thus, in accordance with Part 5 of Article 29 of the Criminal Code of Ukraine, accomplices are not subject to criminal liability for an act committed by the perpetrator, if it was not covered by their intent.

3. Criminal participation and attempted crimes. Could a human agent be liable for participation in a crime committed or for an harmful result caused by an AI systems or AA? Also for a crime different from the one intended by some of the participants, because of the autonomous and unpredictable functioning of the artificial agent (ii). End of the preparatory phase and starting of the phase of execution: which acts performed by an AI system or by AA can be considered as attempted crime? A human agent may be liable for a crime if he is responsible for the actions of the AI as an instrument, means, or method of performing certain acts. Based on the fact that the AI is not the subject of the crime, no action by the AI as preparation can be considered an attempted crime.

4. Liability of legal persons. Necessary adjustments of the legal principles on criminal liability of legal persons when they are involved in AI- related crimes. Necessary adjustments of policies and preventive measures within private organizations in order to guarantee a correct and regular use of AI systems. According to the Criminal Code of Ukraine, a legal entity is not a subject (persona) of a crime, accordingly, it cannot bear legal responsibility. But with regard to legal entities, the Criminal Code of Ukraine contains Section XIV-1 “Measures of a criminal nature against legal entities”. Article 96-3 of the Criminal Code of Ukraine. Grounds for applying criminal and legal measures to legal entities: 1. The grounds for applying to a legal entity measures of a criminal nature are: 1) commission by its authorized person on behalf and in the interests of a legal entity of any of the criminal offenses provided for in Articles 209 and 306, parts one and two of Article 368-3, parts one and two of Article 368-4, Articles 369 and 369-2 of this Code; 2) failure to ensure the fulfillment of obligations imposed on its authorized person by law or constituent documents of a legal entity to take measures to prevent corruption, which led to the commission of any of the criminal offenses provided for in Articles 209 and 306, parts one and two of Article 368-3, parts one and two of Articles 368-4, Articles 369 and 369-2 of this Code; 3) its commission by an authorized person on behalf of a legal entity of any of the criminal offenses provided for in Articles 258-258-5 of this Code; 4) its commission by an authorized person on behalf of and in the interests of a legal entity of any of the criminal offenses provided for in Articles 109, 110, 113, 146, 147, parts two to four of Article 159-1, Articles 160, 260, 262, 436, 437, 438, 442, 444, 447 of this Code; 5) the commission by its authorized person on behalf of and in the interests of a legal entity of any of the criminal offenses provided for in Articles 255, 343, 345, 347, 348, 349, 376-379, 386 of this Code; 6) the commission of any of the criminal offenses provided for in Articles 152-156-2, 301-2-303 of this Code by an authorized person on behalf of and in the interests of a legal entity in relation to a minor or a minor. Note 1. Authorized persons of a legal entity should be understood as officials of the legal entity, as well as other persons who, in accordance with the law, the constituent documents of the legal entity or the contract have the right to act on behalf of the legal entity. 2. Criminal offenses provided for in Articles 109, 110, 113, 146, 147, 152-156-1, parts two to four of Article 159-1, Articles 160, 209, 255, 260, 262, 301-1 -303, 306,343, 345, 347, 348, 349, parts one and two of Article 368-3, parts one and two of Article 368-4, Articles 369, 369-2, 376-379, 386, 436, 437, 438, 442, 444, 447 of this Code, are recognized as committed in the interests of a legal entity, if they led to its illegal benefit or created conditions for such benefit, or were aimed at evading liability under the law.

Article 96-4 of the Criminal Code of Ukraine. Legal entities to which measures of criminal law are applied: 1. Measures of a criminal law nature, in the cases provided for in paragraphs 1 and 2 of part one of Article 96-3 of this Code, may be applied by a court to an enterprise, institution or organization, except state bodies, authorities of the Autonomous Republic of Crimea, local governments, organizations established by them in the prescribed manner, which are fully supported by the state or local budgets, funds of compulsory state social insurance, the Deposit Guarantee Fund of individuals, as well as international organizations.

2. Measures of a criminal law nature, in the cases provided for in paragraphs 3-6 of part one of Article 96-3 of this Code, may be applied by a court to subjects of private and public law of residents and non-residents of Ukraine, including enterprises, institutions or organizations, state bodies, authorities of the Autonomous Republic of Crimea, local governments, organizations established by them in the prescribed manner, foundations, as well as international organizations, other legal entities established in accordance with the requirements of national or international law. If the state or state-owned entity has a stake of more than 25 percent in the legal entity or the legal entity is under the effective control of the state or state-owned entity, the legal entity is fully liable for wrongfully obtained gain and harm caused by criminal an offense committed by the state, subjects of state property or public administration. 3. In case of reorganization of legal entities specified in parts one and two of this article, measures of criminal law nature may be applied to their successors to whom property, rights and obligations related to the commission of criminal offenses referred to in paragraphs 1 -6 of the first part of Article 96-3 of this Code.

5. Alternatives to criminalization and non-criminal sources

1. Does Ukrainian law use civil and / or administrative sanctions (e.g. payment of damages, closing of enterprise, etc.) in order to fight abuses of AI systems or harm caused by them? According to Article 96-6 of the Criminal Code of Ukraine "Types of measures of a criminal law nature applicable to legal entities": 1. The following measures of a criminal law nature may be applied to legal entities by a court: 1) fine; 2) confiscation of property; 3) liquidation. 2. A fine and liquidation may be applied to legal entities only as the main measures of a criminal law nature, and confiscation of property - only as an additional one. When applying measures of a criminal law nature, a legal entity is obliged to reimburse the damages and damages in full, as well as the amount of illegal gain received, which was received or could have been received by the legal entity.

2. Is there any form of compulsory civil insurance for damages resulting from the use of an AI system? Compulsory civil insurance is provided for all sources of increased danger, which today can fully include AI.

3. Are there other technical means for combating harm and/or abuses of AI systems? (e.g. re-programming of the AI system software; destruction of the artificial agent; or similar)? Such technical means exist at the level of individual companies or institutions and are described by internal regulations, to which access is often restricted for security or secrecy reasons.

4. To what extent are users expected to protect themselves (e.g. through security measures in using AI systems; intervention obligations in case of danger, etc.)? What legal relevance could reasonable self-protection of users have in crimes related to AI systems? Could it be a defence for producers accused of an AI-related crime? The higher the level of understanding and technical capability, the higher the level of protection for each individual user. However, any level of reasonable protection on the part of the user is no excuse for negligence or violation on the part of the manufacturer.

5. To what extent is the product liability legislation applicable to emerging AI employment? Is there a specific regulation for AI systems ' testing phase? Alternatively, does the law require simulation obligations? Product liability legislation is fully applicable to new AI systems. The corresponding article of the Criminal Code of Ukraine was cited earlier. Regulation of the testing phase takes place at the level of individual companies or institutions and is described by internal regulations, to which access is often restricted for security or secrecy reasons. The development of these regulations is discussed at numerous conferences and discussions.

Numerous scientific conferences are also held, in which the authors of this report take part, in particular, * IV Kharkiv International Legal Forum (September 23-25, 2020) - public discussion “Human Dignity and Gender Equality: Constitutional Metamorphoses” and panel discussion “Rome Statute of the International Criminal Court: Problems of Implementation to the National Legislation of Ukraine”; * V Kharkiv International Legal Forum (Panel Discussion "Protection of the Economy from the Impact of Organized Crime", September 20, 2021); * International Scientific Conference “Special Part of the Criminal Code of Ukraine: System and Content” (October 20-22, 2021, Kharkiv); * Round table “Fundamental problems of jurisprudence III. Limits of Law” (April 23-24, 2021, Kharkiv); * Online Roundtable on Hate Crimes (EUAM - European Union Advisory Mission, EUAM Field Office in Kharkiv, Kharkiv, 25.03.2021);

• International scientific-practical conference “Social, legal and managerial aspects of health care development: problems, prospects, world experience” (Lloret de Mar, Spain, February 5, 2021); * on-line Forum “New Opportunities for Ukraine in the Age of Pandemics”, Panel “Tools for Counteracting Biological Threats” presentation “Antifragility - Tempering Communities with Constant Challenges” April 2, 2020; * VII International Scientific and Practical Conference “Human and Artificial Intelligence: Dimensions of Philosophical Anthropology,

Psychoanalysis, Art Therapy and Philosophical Journalism” (May 21, 2020, Kyiv), report “New general and legal culture of human, digital and artificial relations. Intelligence”; * International scientific-practical round table “Criminal law in the context of globalization of social processes: traditions and innovations” (May 15, 2020, Kharkiv) Research Institute of Crime named after Academician VV Stashys NAPRN of Ukraine with the report “COVID-19, microchip and criminal liability”;

• Lviv Forum of Criminal Justice (September 17-18, 2020, Lviv) “Ukrainian model of criminal justice: wandering in the mirror”, report “The core and the crowd in the digitalization of law”; * Scientific-practical seminar “The use of artificial intelligence technologies in combating crime” of Research Institute for the Study of Crime named after Academician V.V. Stashis of the National Academy of Legal Sciences of Ukraine (November 5, 2020, Kharkiv), * Scientific and practical conference "Crime and countering it in conditions of singularity: trends and innovations" (Kharkiv, April 16, 2021), * International scientific conference "Special part of the Criminal Code of Ukraine: system and content" (Kharkiv, 2022 October 2021), * VI international scientific and practical round table on the topic "Criminal legal protection of information security" (Kharkiv, May 12, 2022), * VIII (XXI) Lviv criminal justice forum "Ukrainian criminal justice in conditions of war" (Lviv, June 9-11, 2022), * International scientific conference "Criminal law of Ukraine in the face of modern and future challenges: what is it like and what should it be?" (Kharkiv, October 21-22, 2022), * Panel discussion "Problems of adapting the criminal legislation of Ukraine to the acquis communautaire of the European Union" of the VI Kharkiv International Legal Forum (Kharkiv, October 5, 2022), etc.

6. Are there rules or principles (privacy by design, by default, etc.) on cybersecurity and data protection relevant to criminal aspects related to the design / production / use / development of AI systems? Such principles exist at the level of individual companies or institutions and are described by internal regulations, to which access is often restricted for security or secrecy reasons.

7. What is the role of the human agent? What degree of control over the AI system is granted or required? At today's level of AI development, the human agent is fully responsible for the quality or actions of the AI. However, it must be recognized that more and more AI is beginning to make more and more independent decisions with which humans agree. We need to see the point at which most decisions will be made for humans and then the AI will reach a new level of control over humans.

8. Is there a standardization of technical rules for designers / programmers / developers / producers of AI systems (or is it in the process of being defined)? The standardization of technical rules for designers / programmers / developers / manufacturers of AI systems exists at the level of individual companies or institutions and is described by internal regulations, which are often restricted for security or secrecy reasons.

References

1. Karchevskyi, M. (2012). Kriminalno-pravova okhorona informaziynoi bezpeki Ukraini” [Criminal law protection of information security of Ukraine]. Lugansk: RVV LDUVS im. E. O. Didorenko [in Ukrainian].

2. Karchevskyi, M. (2016). Perspektivnie zadachi ugolovnogo prava v kontekste razvitia robototekhniki [Perspective tasks of criminal law in the context of the development of robotics]. Sozialna funksia kriminalnogo prava: problemi naukovogo zabezpechennia, zakonotvorennia ta pravozastosuvannia: materiali mignarodnoi naukovo-praktichnoi konf. [The social function of criminal law: problems of scientific support, law-making and law enforcement: materials of the international scientific and practical conference] (12-13 October, 2016). Kharkiv: Pravo [in Ukrainian].

3. Karchevskyi, M. (2018). Pravove reguluvannya sozializazii shtuchnogo intelektu [Legal regulation of socialization of artificial intelligence]. Visnik Luganskogo dergavnogo universitety im. E. O. Didorenka - Bulletin of Luhansk State University of Internal Affairs named after E. O. Didorenko, 2(78), 99-108 [in Ukrainian].

4. Karchevskyi, M. (2019). Perspektivi pravovogo reguluvannya v konteksti gipotezi rozvitku tekhnologiy transgumanizmu [Perspectives of legal regulation in the context of the hypothesis of the development of transhumanism technologies]. Visnik Luganskogo dergavnogo universitety im. E. O. Didorenka - Bulletin of Luhansk State University of Internal Affairs named after E. O. Didorenko, 1(87), 115-127 [in Ukrainian].

5. Machine Learning / Prometheus, IRF: ML 101. URL: https://courses.prometheus.org.ua/courses/IRF/ML101/2016_T3/about.

6. Radutniy, O. (2017). Criminal liability of the Artificial Intelligence. Problems of legality, 138, 132-141. http://plaw.nlu.edu.ua/ article/view/105661/106117.

7. Radutniy, O. (2017). Artificial Intelligence (shtuchniy intelekt) yak subektbpravovidnosin v galuzi kriminalnogo prava [Artificial Intelligence as a Subject of Legal Relations in the Field of Criminal Law]. Politika v sferi borotbi zi zlochinnistu: Mizhnarodna naukovo-praktychna konferentsiia [International Scientific and Practical Conference “Policy on the Fight against Crime”]. Ivano- Frankivsk [in Ukrainian].

8. Radutniy, O. (2017). Kriminalna vidpovidalnist shtuchnogo intelektu [Criminal Liability of Artificial Intelligence]. Informaziya i pravo, 2, 124-133 [in Ukrainian].

9. Radutniy, O. (2018). Dodatkovi argumenti shodo pravosubeknosti shtuchnogo intelektu [Additional arguments on the legal personality of artificial intelligence]. Internet rechey: problem pravovogo reguluvannya ta vprovadgennya: Mizhnarodna naukovo-praktychna konferentsiia [Internet of Things: Problems of Legal Regulation and Implementation], 46-50. Kyiv: Politekhnika [in Ukrainian].

10. Radutniy, O. (2018). Mistze shtuchnogo intelektu v strukturi suspilnih vidnosin yaki ohoronyautsa kriminalnim pravom [The location of Artificial Intelligence in the Structure of Public Relations, which is Protected by Criminal Law]. Fundamentalni problem kriminalnoi vidpovidalnosti: Naukoviy Polilog [Fundamental Problems of Criminal Liability: Scientific Polilog]. Kharkiv: Pravo [in Ukrainian].

11. Radutniy, O. (2018). Subyektnist shtuchnogo intelektu u kriminalnomu pravi [The Subjectivity of Artificial Intelligence in Criminal Law]. Pravo Ukraini, 1, 123-136 (in Ukrainian).

12. Radutniy, O. (2019). Adaptation of criminal and civil law in view of scientific-technical progress (Artificial Intelligence, DAO and Digital Human Being). Problems of Legality, 144, 138-152. http://plaw.nlu.edu .ua/ article/view/155819/159365.

13. Radutniy, O. (2019). Morality and Law for Artificial Intelligence” [2019] Proceedings of the 1st International Symposium on Intellectual Economics, Management and Education, September 20, 2019. Vilnius Gediminas Technical University. Vilnius: Vilnius Gediminas Technical University.

Размещено на Allbest.ru