Genesis of criminal and legal counterfeiting of violation of civil equality in Ukraine

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Genesis of criminal and legal counterfeiting of violation of civil equality in Ukraine

Introduction

Criminal offenses committed on the grounds of prejudice or hatred against a particular social community have serious consequences for both members of such communities and the community as a whole, and can escalate into socio-political conflicts. According to the Office of the Prosecutor General, in 2020, 178 criminal offenses committed on the grounds of racial, national or religious intolerance were registered, and currently there are 20 such facts. At the same time, 6 indictments in this category of cases were sent to court in 2020, in the current 2.

In Ukraine, as in the rest of the world, the OSCE Office for Democratic Institutions and Human Rights observes an extremely high level of (only one in five cases) latency of hate crimes [1, р.5]. Effective counteraction to the violation of equality of citizens, in particular, the correct legal qualification of such actions, as well as prompt prosecution of the perpetrators will strengthen the sense of legal protection of social groups by law enforcement agencies and ensure socio-political stability in the country.

Presenting main material

The first milestone in the history of the development of the criminal legislation of Ukraine to ensure the protection of equality of citizens was the establishment of responsibility for the violation of interethnic peace and harmony. This act was criminalized in the second half of the XIX century, when part of the Ukrainian population lived in the territory that was then under the rule of the Austro-Hungarian Empire. Thus, Article 19 of the Constitution of the Austro-Hungarian Empire, adopted in 1867, stated that all peoples belonging to different races have equal rights: each race has the inalienable right to maintain and cultivate its nationality and language [2, р.377].

The legal guarantee of the equal position of the citizens of the Austro-Hungarian Empire was the enshrinement in § 172 of Chapter VI "Incitement against the constitution, laws, government agencies or bodies of these institutions" of the Austro-Hungarian Criminal Code on crimes and misdemeanors of 1879 responsibility for encroaching on international peace and agreement in the Austro- Hungarian Empire. The object of this crime was public relations, which ensured the protection of law and order, interclass, interethnic, interreligious peace and harmony; the subject were printed works or images of relevant content. The objective side of the crime was characterized by such alternative actions as proclamation (reading), distribution, display (demonstration), as well as the manner of commission - in public (in public). The obligatory features of the subjective side were direct intent, as well as the purpose - to provoke disobedience to the law or legally issued government rules, decrees and orders; incitement of one class of population, nationality or religious association to mutual enmity. The subject of this crime was an individual [2, р.415].

The some territory of modern Ukraine at that time was part of the Russian Empire, whose legislator only a quarter of a century later managed to establish a criminal law that provided for liability for violation of interstate, interracial, interethnic, interreligious peace and harmony in Article 125 of Chapter 5 "On Troubles" "Criminal Articles » [3, p.591]. Another provision of this Code (Article 129) provided for liability for «uttering or reading, publicly, a speech or composition, or for the distribution or public display of a composition or image that incites enmity between certain sections or classes of the population, between estates, or between employers and workers...» [3, p.592-593]. The object of this act was social relations, which provided protection between class and inter-state peace and harmony. The objective side of the crime was characterized by action, and the subjective side - by direct intent and the special purpose of inciting hostility. The subject of this crime was an individual.

The next stage in the development of criminal law for violating interethnic peace and harmony took place during the creation of the Ukrainian independent state (1917-1921). Thus, the government of the UPR - the Directory adopted the Law "On criminal liability for insult to national honor and dignity" of January 24, 1919, which provided for punishment for such socially dangerous acts: insult by word, letter or deed of a citizen of the UPR to insult his national honor or dignity; public or public contempt for words or actions of a state or public institution, any nationality or individual in order to offend the national honor or dignity of any nationality of the UPR; the same actions, but caused by the distribution or public display of printed works, drawings or images; deliberate placement on paper submitted to a state or public institution or their governmental persons, expressions that are offensive to the national honor and dignity of any nationality of the UPR [4, p.59].

Beginning in 1918, the eastern Ukrainian lands came under the rule of Bolshevik Russia, which initiated the formation of the URSR on these lands. The Government of the URSR by the Decree of the CPC of the URSR "On the Punishment of Agitation aimed at inciting national hatred" of February 13, 1919 for the first time in the URSR established criminal liability for inciting national hatred [5].

In 1922 the Criminal Code of the URSR was adopted, where in Art. Chapter 83 "State Crimes" of the section "Crimes against the order of government", in pursuance of the provisions of the above Decree, was criminally liable for agitation and propaganda that incited national hatred or hatred, or which called for the commission of the aforementioned (in this Code) crimes, as well as the production and distribution of literature for the same purpose. The object of this crime was public relations, which ensured the protection of law and order and international peace and harmony, and the subject - the relevant literature. The objective side of the crime was characterized by alternative actions, which were expressed in agitation or propaganda or production and distribution. From a subjective point of view, this crime presupposed direct intent as well as purpose. The subject of this crime was an individual. guilty criminal prosecution

Adopted in 1927, the new Criminal Code of the URSR had a similar criminal law, but on February 25, 1927, the CEC of the URSR approved the Regulations on State Crimes, which provided for criminal liability for propaganda and agitation, calling for undermining or weakening the Soviet authorities or to the commission of certain counter-revolutionary crimes, as well as the distribution or production or storage of literature of the same content. Such qualifying features as committing it during mass riots or with the use of religious or national prejudices of the masses, or in a state of war, or in areas under martial law were also established [2, p.268].

In the postwar years, the USSR Law "On Criminal Liability for State Crimes" of December 25, 1958, which established criminal liability for propaganda or agitation to incite racial or national hatred or hatred, as well as direct or indirect restriction of rights or establishing direct or indirect preferences for citizens depending on their racial or ethnic affiliation. It is in this form that this norm was included in Part II "Other crimes against the state" chapter "Crimes against the state", adopted in 1960, the new Criminal Code of the URSR, and Article 66, which contained this rule, was called Violation of national and racial equality " [6, p. 66].

Significant difficulties that arose during the application of the article, which provided for liability for violation of national and racial equality of citizens, led to the adoption of the decision of the Plenum of the Supreme Court of the USSR of December 23, 1988 "On consideration by courts of acts related to crimes in the conditions of natural or other social disaster ", which defined propaganda and agitation in order to incite national hatred and hatred, as the spread of malicious rumors and fabrications that undermine trust and respect for another nationality, as well as cause feelings of hostility to it [7, p.13].

The next changes in the law on criminal liability for violation of equality of citizens took place only during the so-called "perestroika". The new version of this article established liability for intentional acts aimed at inciting national, racial or religious hatred and hatred, humiliating national honor and dignity, or insulting the feelings of citizens in connection with their religious beliefs, as well as direct or indirect restriction of the rights or establishment of direct or indirect preferences of citizens depending on their racial, national affiliation or attitude to religion (Part 1 of Article 66 of the Criminal Code of the Ukrainian RSR). Part 2 of this article read as follows: “The same acts related to violence, deception or threats, as well as committed by an official. Part 3 of this article stated that “actions provided for in parts 1 or 2 of this article which were committed by a group of persons or caused the death of people, or other grave consequences.

The Law of the USSR "On Strengthening Responsibility for Encroaching on the National Equality of Citizens and Violent Violation of the Unity of the Territory of the USSR", adopted on April 2, 1990, was largely declarative in nature. This law recognized as illegal and prohibited any activity of any association of citizens, including political parties, public organizations and mass movements, which was aimed at inciting national or racial hatred, hatred and contempt of other nations or the use of violence. on national, racial or religious grounds [8, p. 25-26]. Citizens' actions to establish such associations, as well as their active participation in their activities, were punishable by a fine or administrative arrest, unless criminal liability was provided for such actions. The same law provided for the addition of Art. 34 Principles of Criminal Legislation of the USSR and the Union Republics a new circumstance that aggravated the punishment - the commission of a crime based on national or racial hatred, or contempt.

An important point in strengthening the criminal law protection of interracial, interethnic, interreligious peace and harmony was the adoption by the legislator of a new version of Art.

62 of the Criminal Code of Ukraine of 1960, which was previously called "Anti-Soviet agitation and propaganda". Thus, in accordance with the Law of Ukraine "On Strengthening Criminal Liability for Certain Crimes against the State" of December 24, 1993, a new version of Art. 62 of the Criminal Code of Ukraine of 1960, which became known as "encroachment on the territorial integrity of Ukraine", where the qualifier provided for intentional acts to change the boundaries of the territory or state border of Ukraine in violation of the Constitution of Ukraine, as well as public appeals or dissemination calls for such actions if they are combined with incitement to national or religious hatred [9, p. 3].

The new Criminal Code of Ukraine of 2001 soon came into force, which is still valid today with changes and additions. Therefore, in Art. 161 of this Code established liability for violation of equality of citizens depending on their race, nationality or attitude to religion. Note that this rule, compared with Art. 66 of the Criminal Code of Ukraine of 1960, had minor editorial changes (in particular, the legislator introduced an expanded list of social characteristics of the victim, which corresponds to the provisions of international legal acts).

Regular changes and additions to the current Criminal Code of Ukraine were introduced by the Law of Ukraine №1707-VI of November 5, 2009, according to which the title of Art. 161 of the Criminal Code of Ukraine was worded as follows: "Violation of equality of citizens depending on their race, nationality or religious beliefs", as well as increased the size of sanctions and excluded such a particularly qualifying feature as "death". In addition, in paragraph 14 of Part 2 of Art. 115, in part 2 of Art. 121, part 2 of Art. 122, part 2 of Art. 126, part 2 of Art. 127 and Part 2 of Art. 129 of the Criminal Code of Ukraine enshrines such a qualifying feature as the commission of the above crimes on the grounds of racial, national or religious intolerance.

Subsequently, the title of Article 161 of the Criminal Code of Ukraine was worded as follows: "Violation of equality of citizens depending on their race, nationality, religion, disability and other grounds", and the first paragraph of the first after the word "sex" The last legislative changes took place in 2019, which provided for a more severe type of punishment for a particularly qualified composition in the form of imprisonment for up to three years.

It should be noted that in order to reform the legislation of Ukraine, including criminal law, the Decree of the President of Ukraine № 584/2019 of August 7, 2019 established the Commission on Legal Reform, part of which is the Working Group on Criminal Law Development. In the draft Criminal Code prepared by this group, criminal liability in the field of equality of citizens is enshrined in Article 4.12.4. "Discrimination" of Section 4.12. "Crimes and misdemeanors against equality and other political rights of citizens" Book four "Crimes and misdemeanors against man and citizen". The disposition of this norm determines that a person, directly or indirectly on the grounds of race, color, political, religious or other beliefs, sex, disability or health status, ethnic or social origin, property status, place of residence, language or other characteristics : a) restricted the equal right to access to public service or service in local self-government bodies, b) violated the equality of rights of women and men, c) restricted other constitutional rights of a person or a citizen; d) established direct or indirect privileges for a person - commits a crime of the 3rd degree [10, p.80-81].

It should be positively assessed by the authors of the project from the violation of equality of citizens (discrimination) to a separate criminal offense, which provides for responsibility for inciting hatred and hatred. In particular, criminal liability for such an act is provided for in Article 4.12.3. "Incitement to hatred or hatred" of the same section, where a person who: a) incited or promoted national, racial or religious enmity or hatred or enmity or hatred on the grounds of regional affiliation, b) degraded national honor or dignity; c) insulted the feelings of citizens in connection with their religious beliefs - commits a crime of the 3rd degree.

However, the authors of the project leave in the meaning of the norm the term "ignition", which is used in this case in a figurative sense, which clearly creates difficulties in qualifying such an act. In addition, in our opinion, given the substantiated results of our own dissertation research, it is erroneous to place this part of the offense in the above section, and not in section 7.1. "Crimes against state security" Book seven "Crimes and misdemeanors against the state."

Conclusions

Summing up, we note that the issue of criminal law protection of equality of citizens in the history of national criminal law has been addressed quite inconsistently. Thus, the analysis of historical experience shows that the most optimal mechanism for protecting the equality of citizens was introduced in the Criminal Code of the USSR in 1960, and the Criminal Code of Ukraine in 2001 became a kind of successor, which was expressed in the inclusion of Art. 161 of the expanded list of signs of the victim of this criminal offense. Currently, the constructive elements of the criminal law of Ukraine, which provides criminal protection of public relations in the field of equality of citizens and security of interethnic, interracial and interreligious relations, have some shortcomings that necessitate the improvement of existing criminal law.

References

1. Категоризація та розслідування злочинів на ґрунті ненависті в Україні. Практичний посібник. ОБСЄ (БДІПЛ), Варшава, 2019, 74 с.

2. Хрестоматія з історії держави і права України: У 2-х т. За ред. В. Д Гончаренка. К: Видавничій Дім Ін Юре, 2000. Т 1. 472 с.

3. Законы уголовные (Уложение о Наказаниях уголовных и исправительных; Уголовное Уложение 22 марта 1903 г.; Устав о наказаниях, налагаемых Мировыми Судьями; Позднейшие Узаконение, не вошедшее в прод. 1908 г.). Составители Новиков В. Н., Постоловский Д.С. С.-Петербург: Типография М. М. Стасюлевича, 1910. 749 с.

4. Кісілюк Е. М. Кримінальне законодавство в період українського державотворення 1917-1921 років: дис. ... канд. юрид. наук. К., 2001. 216 с.

5. СУ УРСР, 1919. № 9. С. 114.

6. Уголовный кодекс Украинской ССР по состоянию на 01.01.1975 года с постатейными материалами. К.: Политиздат, 1975. 368 с.

7. Бюллетень Верховного суду СРСР. 1989. № 1. С. 11-13.

8. Залиханова Л. И. Уголовно-правовая и криминологическая характеристика возбуждения национальной, расовой, религиозной вражды: дис. канд. юрид. наук. М., 2003. 217 с.

9. Про посилення кримінальної відповідальності за деякі злочини проти держави: закон України. Голос України. 21 січня 1994 р. С. 7.

10. Проект Кримінального кодексу України, підготовлений Робочою групою з питань розвитку кримінального права станом на 25.07.2021р. 129с.

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