УДК 343:415

ORCID: 0000-0003-2074-8895

DOI 10.37566/2707-6849-2024-1(46)-11

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Roman MOVCHAN,

Professor of the Department of Constitutional and International Studiesand criminal law of Donetsk NationalVasyl Stus University,

doctor of legal sciences, professor

Olena DUSHEVSKA,

graduate student of the Department of Constitutional Studies,international and criminal lawDonetsk National Universitynamed after Vasyl Stus

CHANGE OF SITUATION AS A BASIS FOR EXEMPTION FROM CRIMINAL RESPONSIBILITY FOR ILLEGAL FELLING, TRANSPORTATION, STORAGE, SALE OF FOREST (ARTICLE 246 OF THE CRIMINAL CODE OF UKRAINE): PROBLEMS OF JUDICIAL PRACTICE.

The article carried out a critical analysis of the judicial practice of exemption from criminal liability in connection with the change in the situation of persons who have committed a criminal offense provided for in Art. 246 of the Criminal Code of Ukraine, as a result of which existing problems in this area were identified and scientifically based ways of overcoming them were proposed.

In particular, it was proven that the most common mistake made by domestic courts when acquitting persons who have committed a crime, provided for in Art. 246 of the Criminal Code of Ukraine, there is the fact that the application of Art. 48 of the Criminal Code of Ukraine is permanently justified by compensation for the damages and circumstances that should actually be considered only in the context of the individualization of criminal responsibility (such as the absence of a criminal record, sincere remorse). It is concluded that such a practice clearly does not stimulate law-abiding behavior, since in the worst case, the one who committed illegal logging «is threatened» with only full compensation for the damage caused, without serving any punishment for what he did. It is also stated that the appropriate approach is based on ignoring the obvious fact that the change of situation as a relatively objective type of exemption from criminal responsibility does not depend on the willpower and post-criminal behavior of the subject of the criminal offense.

Arguments are given in favor of supporting the position of those courts that, demonstrating a principled position, instead of the usual formal approach, carefully study the existence of grounds for satisfying the relevant requests and, in particular, note that all the above-mentioned circumstances are not sufficient by themselves and cannot convincingly testify about a change in the situation and a person’s loss of social danger to such an extent that it makes it impossible for him to commit another criminal offense.

Key words: criminal responsibility; exemption from criminal liability; punishment; change of situation; illegal felling, transportation, storage, sale of forest; contrition; post-criminal behavior; losses; compensation for damages; public danger.

References

Baulin Y. V. Exoneration from criminal liability. Bulletin of the Criminal LawAssociation of Ukraine. 2013. No. 1. P. 185–207 [ukr.].

Baulin Y. V. Exoneration from criminal liability. Kyiv: Atika, 2004. 296 p. [ukr.].

Decision of the Konotop city-district court of the Sumy region dated May 14, 2018in case No. 577/1401/18. URL: https://reyestr.court.gov.ua/Review/73943884 [ukr.]

Decision of the Volodymyretsk District Court of the Rivne Region dated August 30,2022 in case No. 556/1111/22. URL: https://reyestr.court.gov.ua/Review/106018538

[ukr.]

Decision of the Zolotonsky City and District Court of the Cherkasy Regiondated August 13, 2021 in case No. 695/1626/20. URL: https://reyestr.court.gov.ua/Review/9897660[ukr.]

Decision of the Yaremchan city court of Ivano-Frankivsk region datedJanuary 13, 2015 in case No. 354/698/14-k. URL: https://reyestr.court.gov.ua/Review/42270086 [ukr.]

Resolution of the Supreme Court of Appeals of Ukraine dated March 26, 2019 in case

No. 569/20/14-k. URL: http://reyestr.court.gov.ua/Review/81438477[ukr.]

Scientific and practical commentary on the Criminal Code of Ukraine / edited byM. I. Melnyk, M. I. Havronyuk. 10th ed., revised. and added Kyiv: VD «Dakor», 2018.1360 p. [ukr.]

Decision of the Bershad District Court of the Vinnytsia Region dated January 24,2022 in case No. 126/1121/21. URL: https://reyestr.court.gov.ua/Review/102765760[ukr.]

Decision of the Zolotonsky City and District Court of the Cherkasy Regiondated November 11, 2021 in case No. 695/1279/21. URL: https://reyestr.court.gov.ua/Review/101042587[ukr.]

Decision of the Verkhovna District Court of Ivano-Frankivsk Oblast’s decisiondated April 7, 2015 in case No. 340/195/15-k. URL: https://reyestr.court.gov.ua/Review/43463818 [ukr.]

Decision of the Rakhiv District Court of Zakarpattia Oblast dated October 23,2014 in case No. 305/2052/14-k. URL: https://reyestr.court.gov.ua/Review/41038891[ukr.]

Decision of the Rakhiv District Court of Zakarpattia Oblast dated March 17, 2013in case No. 305/395/14-k. URL: https://reyestr.court.gov.ua/Review/37678178[ukr.]

Decision of the Rakhiv District Court of Zakarpattia Oblast dated June 27, 2013 incase No. 305/1308/13-k. URL: https://reyestr.court.gov.ua/Review/32141399[ukr.]

Decision of the Rokytniv District Court of the Rivne Region dated February 6, 2023in case No. 571/1/23. URL: https://reyestr.court.gov.ua/Review/108794992[ukr.]

Decision of the Krasnopil District Court of the Sumy Region dated April 21, 2023in case No. 578/110/22. URL: https://reyestr.court.gov.ua/Review/110461073[ukr.]

Criminal law: education. manual / O. O. Dudorov, M. I. Havronyuk; in general ed.M. I. Havronyuk. Kyiv: Vaite, 2014. 944 p. [ukr.].

Zaginei Z. Analysis of judicial practice regarding exemption from criminal liabilityfor declaring false information (Article 366-1 of the Criminal Code of Ukraine). Historicaland legal journal. 2018. No. 2. P. 115–120. [ukr.].

Decision of the Volovotsky District Court of Zakarpattia Oblast dated August 12,2021 in case No. 302/709/21. URL: https://reyestr.court.gov.ua/Review/98935766[ukr.]

Decision of Pyatikhat District Court of Dnipropetrovsk Region dated August 18,2017 in case No. 190/605/17. URL: https://reyestr.court.gov.ua/Review/68339221[ukr.]