Criminal law protection of the Ukrainian external voting to the state authorities in post-war conditions (a case study of Poland)

2.7. Is it possible to apply the universal principle of the operation of the Criminal Law of Ukraine to the criminal election offences committed on the territory of the Republic of Poland?

The universal principle means that foreigners or stateless persons who do not reside permanently in Ukraine and have committed criminal offences abroad are liable in Ukraine under the CC of Ukraine in cases provided for by international treaties (Part 1 of Art. 8 of the CC of Ukraine).

However, this principle does not extend to criminal election offences, as they fall within the category of offences for which each state establishes its national legal countermeasures to the extent it considers justified. The universal principle of operation of the criminal law applies to those criminal offences that are capable of harming the interests of all states to the same extent. Criminal election offences, distinct from international crimes (such as crimes against peace and humanity - planning, preparation and waging of aggressive war, genocide, etc.), and crimes of an international nature (contradicting and preventing which international treaties and conventions have been adopted, and the provisions of which are implemented in the national legislation of the signatory states, such as counterfeiting, cybercrimes, domestic violence, acts of corruption, etc.) possess a notable feature and a striking feature. This lies in their special object of criminal law protection - relations of holding the elections to the authorities of a particular state. Consequently, their criminalisation and persecution fall within the exclusive sovereign rights of each state, and all-out (interstate) counteraction to them bears signs of interference in the internal affairs of a state.

Hence, criminal election offences committed outside Ukraine (in particular, outside the premises and territories of diplomatic institutions of Ukraine in the Republic of Poland) by foreigners or stateless persons who do not permanently reside in Ukraine are subject exclusively to the real principle of the operation of the criminal law in space.

Simultaneously, socially dangerous acts that can occur outside the diplomatic institutions of Ukraine significantly jeopardise the proper conduct of elections, endangering their impartial outcomes. Moreover, taking into account the legal gap in the legislation - the noncriminal liability of foreigners and stateless persons who do not permanently reside in Ukraine - various criminals might purposefully take advantage of this gap and involve foreigners in the performance of the objective aspects of these crimes. As a result, the criminal offences in Clause 1.6 of this article may be committed using persons known to the perpetrator not to be criminally responsible for what they have committed. Therefore, these types of criminal offences fall into the category where so-called intermediate (indirect) execution can occur.

Intermediate (indirect) execution of a criminal offence refers to a scenario where a physically sane person who has reached the age of criminal liability carries out the objective part of the offence by employing (or mobilising) other persons who, under the law, cannot be held criminally liable for their involvement in the act.

In this connection, the question may arise: should the issue of intermediate (indirect) execution be considered in such cases?

Researchers indicate the following cases when intermediate (indirect) execution may be possible when:

• the perpetrator realises that the person they influenced to commit the crime is insane or has not reached the age of criminal liability;

• such a person commits an act while directly under the influence of physical coercion by the perpetrator or under the influence of hypnosis, rendering them unable to control their actions;

• a person commits an act in a state of extreme necessity, arising as a result of physical coercion by the perpetrator, during which he retains the ability to control their actions, or under mental coercion;

• the perpetrator is conscious that they are giving a criminal order or instruction to a person who is not aware and cannot be aware of its criminal nature;

• a person commits an act, being misled by the perpetrator, or the perpetrator uses the person's mistake to realise a criminal intent;

• the perpetrator uses a person who committed the crime due to carelessness. IA Zinovieva, `The Principal Offender Acting Through an Innocent Agent: Concepts and Types' (2016) 31 Issues of Crime Prevention 200-1.

V. K. Ghryshhuk refers to the indirect execution of a criminal offence when the perpetrator uses an innocent person, animal or plant to commit a criminal offence. VK Ghryshhuk, Criminal Law of Ukraine: General Part (2nd edn, LvSUIA 2019) 292. In contrast, V. O. Navrocjkyj wrote that there is no intermediate (indirect) execution of a criminal offence when using for the committing of a criminal offence persons who, in general, are the subjects of a criminal offence, endowed with will and consciousness when performing the relevant actions. VO Navrocjkyj, Fundamentals of Criminal Law Qualification (Jurinkom Inter 2006) 229-30.

Indeed, the situation we are examining presents an atypical case. The perpetrator uses a person who is formally endowed with the characteristics of a subject of a criminal offence but, due to the norms on the operation of the criminal law in space, is not subject to liability either under the CC of Ukraine or the criminal law of the Republic of Poland. Such scenarios have not emerged previously, neither in theory nor in practice. Nevertheless, during post-war Ukraine elections, they are probable, which allows us to distinguish a new form of indirect execution.

In addressing this matter, the philological interpretation of the criminal law should be applied. In accordance with Part 2 of Art. 27 of the CC of Ukraine, the principal offender (or co-principal offender) shall mean a person who, in association with other criminal offenders, has committed a criminal offence under this Code, directly or through other persons, who cannot be criminally liable, in accordance with the law, for what they have committed. Based on this provision, there are grounds for distinguishing one more form of indirect execution - when a person deliberately uses, involved in the commission of a criminal offence, other persons who are not liable for what has been committed.

It is possible to outline the following options for the qualification of such acts based on the provisions of the current CC of Ukraine:

1. In cases where the subject of an election criminal offence is a citizen of Ukraine or a stateless person who permanently resides on the territory of Ukraine, and such a person commits an election crime through another person - a foreigner or a stateless person who does not permanently reside on the territory of Ukraine - and both act outside of Ukraine, it constitutes intermediate (indirect) execution. In such cases, a person who uses another person not liable to commit a crime must be held responsible as the perpetrator of the criminal offence.

2. Another situation takes place when at least one of these persons, endowed with the characteristics of a subject of a criminal offence, acted on the territory of Ukraine (a citizen of Ukraine or a stateless person permanently residing on the territory of Ukraine, who attracted another person, from the one side, and a foreigner or a stateless person, who does not permanently reside in the territory of Ukraine, who directly commits a socially dangerous act, from another side). In this case, there is a criminal complicity, and both of these persons are liable for this criminal offence committed in complicity. In these cases, the territorial principle of the operation of the criminal law in space is applicable. In particular, in accordance with Part 3 of Art. 6 of the CC of Ukraine, an offence shall be deemed committed in the territory of Ukraine if the principal to such offence, or at least one of the accomplices, has acted in the territory of Ukraine.

Earlier, the issue of the operation of the criminal law of Ukraine on liability for such offences committed by foreigners and stateless persons had not arisen sharply due to objective reasons (low turnout, a significantly smaller number of voters out of the country, etc.). However, the war posed new challenges to Ukraine, particularly regarding protecting the election order in the out-of-country electoral district.

The solution to this problem might be the conclusion of an international agreement between Ukraine and the Republic of Poland, which would determine the peculiarities of the operation of the CC of Ukraine regarding all election offences committed in Poland by foreigners and stateless persons who do not permanently reside in Ukraine. In this additional agreement, it may be determined that the provisions of the CC of Ukraine establishing liability for criminal election offences also apply to foreigners and stateless persons who do not permanently reside in the territory of Ukraine and who have committed relevant criminal offences in the territory of the Republic of Poland.

ANTICIPATING THE POSSIBILITY OF CREATING ADDITIONAL FOREIGN ELECTION PRECINCTS IN THE REPUBLIC OF POLAND OUTSIDE THE PREMISES OF DIPLOMATIC INSTITUTIONS AND DETERMINING THEIR (TEMPORARY) PUBLIC LEGAL STATUS

The problem of the capacity of the election precincts in foreign constituencies, organised within the limits of diplomatic missions and consular institutions, has existed for the last few years.

The full-scale invasion of the Russian Federation into Ukraine caused the appearance of a huge number of Ukrainian refugees in Europe. According to various data (official and unofficial), there are 5 to 8 million Ukrainian citizens abroad, including temporarily displaced persons.

Hence, establishing additional places or premises for voting outside diplomatic institutions is one of the obvious ways to ensure the expression of the will of a significantly larger number of voters abroad, in contrast to previous elections.

In line with The Central Election Commission's Resolution No. 102 of 27 September 2022, titled `On Proposals to Improve the Legislation of Ukraine, Aimed at Ensuring the Preparation and Holding of Elections After the Termination or Abolition of Martial Law in Ukraine', Resolution of the Central Election Commission no 102 of 27 September 2022 `On Proposals to Improve the Legislation of Ukraine, Aimed at Ensuring the Preparation and Holding of Elections After the Termination or Abolition of Martial Law in Ukraine' <https://zakon.rada.gov.ua/laws/ show/v0102359-22#Text> accessed 25 September 2023. the prospect of conducting future elections abroad outside the premises of diplomatic institutions is being considered. At the same time, voting outside diplomatic institutions accentuates the concern of combating administrative and criminal election offences, consequently giving rise to jurisdictional complexities. Specifically, the extension of Ukrainian legislation to encompass legal relations regarding elections on the territory of the Republic of Poland, including criminal, criminal procedural and administrative legislation.

Hence, the issue of the status of places or premises for voting organised outside diplomatic institutions is important:

• for organising the elections and

• for bringing criminal and administrative liability for election offences.

This issue is in the realm of public international law. It should be settled based on the principles of non-interference in domestic affairs of the state (no state or group of states has the right to interfere in the internal affairs of any state (para. 7 of Art. 2 of the UN Charter).

Elections abroad are organised by the authorised authorities of Ukraine -- precinct election commissions. Therefore, establishing additional voting locations or premises outside diplomatic institutions should be done with due consideration to the principles of state sovereignty and non-interference in internal affairs.

To minimise jurisdictional challenges, the application of the principle of extraterritoriality to voting places or premises outside diplomatic institutions, equating them with the legal status of diplomatic institutions, could alleviate numerous organisational issues of elections. This includes countering and preventing various abuses during voting and bringing offenders to administrative and/or criminal liability.

The issue of the temporary public legal status of additional premises and/or places for voting on the territory of Poland beyond the premises of Ukrainian diplomatic institutions necessitates discussions with the Republic of Poland. The potential future Supplementary Agreement between the Republic of Poland and Ukraine should address issues like the procedure for renting these premises, the interaction of the state authorities and local selfgovernment of Poland with the diplomatic missions and consular institutions of Ukraine, and the protection and maintenance of order at the election precincts etc.

CONCLUSIONS

In accordance with the principle of state sovereignty and the principle of non-intervention (non-interference in domestic affairs of the state) as stated in para. 7 of Art. 2 of the UN Charter, each state holds the authority to a) conduct elections abroad for its state authorities, referred to as external voting, and b) enact laws establishing criminal and administrative liability for electoral offences during external voting and to prosecute those responsible.

Furthermore, a foreign state on the territory of which external voting is held may assist Ukraine in organising and holding elections. This collaboration may be extended by bringing election criminals to justice in Ukraine based on international treaties and in the order of international legal assistance.

Foreign election precincts and voting premises are established in a foreign diplomatic institution of Ukraine or the location of a deployed military unit outside Ukraine (Art. 31 of the Election Code of Ukraine).

How the Criminal Code of Ukraine is applied to criminal election offences committed on the territory of a foreign state depends on where the offence was committed -- in a diplomatic institution or outside its borders.

Criminal offences related to Ukrainian elections and committed within the premises of Ukrainian diplomatic institutions fall under the territorial jurisdiction of the Criminal Code of Ukraine (Part 1, Art. 6 of the CC and Part 2, Art. 4 of the CPC of Ukraine).

In the event of committing an electoral criminal offence regarding the Ukrainian elections on the territory of a foreign state outside the premises of diplomatic institutions of Ukraine, prosecution is possible according to the principle of citizenship - the real principle of the operation of the criminal law in space. It is essential to note that the real principle solely

relates to grave election crimes, as no special grave election offences are outlined in the Criminal Code of Ukraine. Consequently, the jurisdiction of the Criminal Code of Ukraine does not extend its validity to cases where the criminal election offence does not belong to the category of grave offences and is committed outside the territory of diplomatic institutions of Ukraine by foreigners or stateless persons who do not permanently reside in Ukraine.

Addressing these and other problematic issues may be the subject of consensus between the Republic of Poland and Ukraine through a possible Supplementary Agreement on holding Ukrainian elections on the territory of Poland.

REFERENCES

1. Bilodid IK, Docenko PP and Jurchuk LA (eds), Dictionary of the Ukrainian Language, vol 2 (Naukova Dumka 1971).

2. Dudorov OO and Khavronjuk MI, Criminal Law (Vaite 2014).

3. Ghryshhuk VK, Criminal Law of Ukraine: General Part (2nd edn, LvSUIA 2019).

4. Kamminga MT, `Extraterritoriality' in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2020) <https://opil.ouplaw.com/display/10.1093/ law:epil/9780199231690/law-9780199231690-e1040> accessed 25 September 2023.

5. Ljashhenko TM, Legal Status of Diplomatic Missions (National Academy of Management 2008) 45.

6. Navrocjkyj VO, Fundamentals of Criminal Law Qualification (Jurinkom Inter 2006).

7. Paust JJ, `Non-Extraterritoriality of “Special Territorial Jurisdiction” of the United States: Forgotten History and the Errors of Erdos' (1999) 24(1) The Yale Journal of International Law 305.

8. Shherycja SI, `Exterritoriality as an Exception to the Territorial Principle of Effect of the Criminal Procedure Law' (2015) 5 Law and Society 195.

9. Zinovieva IA, `The Principal Offender Acting Through an Innocent Agent: Concepts and Types' (2016) 31 Issues of Crime Prevention 197.

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