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DOI: https://doi.org/10.34069/AI/2022.54.06.20
How to Cite:
Balobanova, D., Hazdayka-Vasylyshyn, I., Shekhavtsov, R., Avramenko, O., & Lashchuk, N. (2022). Dynamics of criminal law and
process in conditions of special legal regimes. Amazonia Investiga, 11(54), 208-218. https://doi.org/10.34069/AI/2022.54.06.20
Dynamics of criminal law and process in conditions of special legal
regimes
Динаміка кримінального права та процесу в умовах особливих правових режимів
Received: July 5, 2022 Accepted: August 10, 2022
Written by:
Daria Balobanova81
https://orcid.org/0000-0001-7247-0560
Iryna Hazdayka-Vasylyshyn82
https://orcid.org/0000-0002-5536-814X
Ruslan Shekhavtsov83
https://orcid.org/0000-0002-4756-9849
Oleksiy Avramenko84
https://orcid.org/0000-0002-6572-3627
Nataliya Lashchuk85
https://orcid.org/0000-0001-9723-9824
Abstract
The research is aimed at identifying the main
legislative changes made under the conditions of
a special legal regime, within the criminal law
and criminal process and its impact on the
general dynamics of the regulation of relevant
social relations. Thus, under the conditions of the
introduction of a special legal regime of martial
law on the territory of Ukraine, the issues of
improving the existing criminal and criminal
procedural legislation, criminalizing certain acts,
and simplifying the relevant procedural actions
that reflect modern legal realities and meet the
challenges and needs of the state and society
have become urgent. The purpose of the work is
to identify certain fundamental changes in
criminal and criminal procedural legislation,
which embody the dynamics of criminal law and
process, as well as determine their further vector
of development. The methodological basis of the
work consists of the following methods:
dialectical, functional, axiological, system-
structural analysis method, and generalization
method. The result of the study was proof of the
existence of positive dynamics of criminal law
81
Doctor of Legal Sciences, Associate Professor, Professor of the Department of Criminal Law and Criminology, Lviv State
University of Internal Affairs, Ukraine.
82
Ph. D., Associate Professor, Head of the Department of criminal law and criminology of the Lviv State University of Internal
Affairs, Ukraine.
83
Ph. D., Associate Professor of the Department of Criminal Procedure and Forensics of Faculty No. 1 of the Institute for Training
Specialists for National Police Units of the Lviv State University of Internal Affairs, Ukraine.
84
Ph. D., Associate Professor of the Department of Criminal Procedure and Forensics of Faculty No. 1 of the Institute for Training
Specialists for National Police Units of the Lviv State University of Internal Affairs, Ukraine.
85
Ph. D., Associate Professor, Head of the Department of Criminal Law Disciplines of the Institute of Law, Lviv State University of
Internal Affairs, Ukraine.
Balobanova, D., Hazdayka-Vasylyshyn, I., Shekhavtsov, R., Avramenko, O., Lashchuk, N.. / Volume 11 - Issue 54: 208-218 /
June, 2022
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and the criminal process in the conditions of a
special legal regime. Despite the difficult time
for Ukrainian statehood, Ukraine continues to
improve the regulation of social relations within
the framework of criminal law and process
following the needs of society and the needs of
the state, and also actively and effectively carries
out a rule-making policy taking into account the
prospects of the development of criminal law and
process.
Keywords: special legal regime, legal regime of
martial law, armed aggression, criminalization,
national security, pre-trial investigation, criminal
proceedings.
Introduction
The life of society is multifaceted and diverse, as
it depends on a combination of many factors of a
different nature: political, economic, social, and
cultural. At the same time, such factors are not
always positive, in connection with which they
always lead to the emergence of negative
fluctuations in society, which in the end can take
the form of crises of various nature, which in turn
are accompanied by a significant degree of
destabilization of the usual rhythm of everyday
life.
Such crises, against the background of society's
natural need for regulation, require the state to
establish regulations and, in the foreseen cases,
introduce special additional measures that will
create conditions for ensuring public safety,
observing the rights and freedoms of man and
citizen, that is, introducing the appropriate legal
regime.
Kosse D. (2010) generally defines the legal
regime as a regulatory procedure, which is
expressed in a multidirectional complex of legal
means, which characterize a special combination
of interacting permits, prohibitions, as well as
positive obligations, which create a special focus
of legal regulation.
In turn, the emergence of the crisis, and atypical
situations in the life of society create the need to
introduce special legal regimes, which are
distinguished by the specificity of the legal
regulation of social relations, depending on the
reason for the introduction of such a regime.
The current legislation of Ukraine does not
contain a normatively established interpretation
of the term special legal regime, however,
according to the Law of Ukraine "On the Legal
Regime of a State of Emergency" (Law 1550-III,
2000, Article 1) and the Law of Ukraine "On the
Legal Regime of Military state" (Law 389-VIII,
2015) "On the legal regime of martial law",
Article 1, through the term "special legal
regime", the legislator interprets, in particular,
the state of emergency and martial law. Thus, it
can be concluded that the state of emergency and
martial law are the main special legal regimes in
Ukraine.
In the legal literature, a point of view is expressed
about the existence of a "special state" regime
along with the legal regimes of emergency and
martial law (Sahakian, 2015).
In practice, this is confirmed by the fact that a
special legal regime has indeed been established
in the temporarily occupied territory of Ukraine.
The mentioned regime also made corrections in
the legislation of Ukraine, in particular the
criminal procedural law, but the real dynamics of
criminal law and the process under the conditions
of a special legal regime should be followed by
the example of the legal regime of the current
martial law.
Thus, the issue of the legal regime of war has
become particularly relevant at the moment,
since the decree of the President of Ukraine dated
February 24, 2022 No. 64/2022 introduced
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martial law throughout the territory of Ukraine,
which is currently extended by the Decrees of the
President of Ukraine dated March 14, 2022
No. 133/2022, from April 18, 2022
No. 259/2022, May 17, 2022 No. 341/2022.
Everyday life of Ukrainian society in today's
conditions, namely in the conditions of the full-
scale phase of armed aggression by the Russian
Federation against Ukraine, dictates changes to
the Ukrainian legal reality as well. The changes
that arose under the influence of the introduction
of a special legal regime of martial law also
touched the criminal law and criminal process.
Such changes, in turn, are a manifestation of the
dynamics of criminal law and process, as they
testify to their timely development under the
urgent needs of society.
Thus, the dynamics of law are a reflection of the
dynamics of society, the relations of which are
regulated by law, and therefore it responds to the
state of development or peace of society with its
reaction (Balobanova, 2021).
Moreover, it should be noted that this process is
in development according to two concepts: the
formation of legal chaos and the neutralization of
the latter through radical (or interpretive)
changes in legal regulation (Tulyakov &
Tulyakova, 2005).
The object of the research is legal relations
within the framework of the improvement of
criminal law and the criminal process under the
conditions of a special legal regime.
The subject of the research is the dynamics of
criminal law and the process in the conditions of
special legal regimes.
Theoretical Framework or Literature Review
A large number of works of domestic and foreign
scientists are devoted to the study of certain
issues of the dynamics of criminal law and the
criminal process, however, within the scope of
this study, considerable attention was paid to the
works of domestic practitioners and
theoreticians, since the manifestations of the
practical dynamics of law in the conditions of
special legal regimes, in particular, the regime of
martial law, characteristic of a small number of
states.
Thus, the contribution of D. Kosse (2010), who
studied the meaning and essence of the legal
regime in the legal system of Ukraine, is
valuable. In his works, attention is paid to the
peculiarities of the legal regime category, its
relationship with other legal categories and
phenomena, its structure, and methods of legal
regulation of social relations. Thanks to the work
of the specified scientist, within the scope of this
study, a reassessment of the differences between
the legal regime and the special legal regime took
place.
This study, within the framework of the concept
of dynamics, is also based on the works of D.
Balobanova (2021), who carried out a complex
special scientific study of the dynamics of
criminal law based on conclusions about its
dynamic nature, and also improved the approach
to recognizing the main tools of reflecting the
dynamics of law-making on the implementation
of criminalization and decriminalization.
V. Tulyakov and M. Tulyakova (2005) are of
great importance in the study of the dynamics of
criminal law because in their works these
scientists identified the main regularities of the
dynamics of criminal law and elaborated models
of the dynamics of criminal-law relations, the
formation and implementation of prohibitions
along with the development of the doctrine of
criminal law.
A. Kovalevskyi (2022) indirectly studied the
dynamics of criminal law within one of its main
elements, namely the criminalization of acts
during martial law. The scientist proved that the
changes in the Criminal Code of Ukraine, in
particular regarding bringing to responsibility for
the commission of collaborative activities and
aiding the aggressor state, are balanced and
justified, as well as those that will definitely find
their implementation in law enforcement
practice.
Yu. Ponomarenko (2022) turned his attention, as
a scientist, to the dynamics of criminal law in the
part of the newly introduced provision of
criminal legislation regarding the circumstances
that exclude the criminality of an act, that is, the
lawful behavior of civilians who, during and to
protect Ukraine, commit actions that ordinary
circumstances would lead to the consideration of
the issue of bringing to criminal responsibility.
Movchan R. (2022) conducted a study of new
criminal legislation introduced after February 24,
2022, based on which he formulated proposals
for eliminating defects that negatively affect the
effectiveness of criminal law prohibitions on
collaborative activities, aiding the aggressor
state, looting, illegal use humanitarian aid, as
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well as criminal and legal countermeasures
against cybercrime under martial law.
Loskutov T. (2022) studied, in particular, the
peculiarities of the implementation of certain
procedural actions of the pre-trial investigation in
the conditions of the legal regime of martial law,
which in turn also indicate the presence of certain
dynamics of the criminal process.
Based on the work of O. Dufenyuk (2022),
conclusions were made within the scope of
research questions about the balance of values
and interests in criminal proceedings in wartime.
Thus, the scientist noted a significant renewal of
the paradigm of the criminal process, which is
manifested in a shift in the balance between
"public" and "private". Her works are devoted, in
particular, to the analysis of innovations in the
criminal procedural legislation of Ukraine and to
the formation of an understanding of the acute
timeliness and expediency of such changes.
Glowyuk I., & Zavtur V. (2022) drew attention
to the identification of the main directions aimed
at improving the functioning of criminal justice
in wartime, which were implemented by the
legislator and implemented in practice, the
assessment of the legal certainty of the latest
changes and additions to the criminal procedural
law, while distinguishing other challenges,
responses to which are necessary in conditions of
martial law, in correlation with the observance of
human rights in conditions of martial law.
At the same time, the new challenges of
modernity in the conditions of special legal
regimes, which are manifested in changes in
criminal law and criminal process, indicate the
need for further elaboration of the above-outlined
issues of current dynamics.
Methodology
The result of the research was obtained thanks to
the use of both general scientific and special
methods, which made it possible to fully consider
the dynamics of criminal law and the process on
the example of changes made to the relevant
legislation during the period of the special legal
regime of martial law in Ukraine.
A significant role in drawing conclusions based
on the results of this study was played by the
dialectical method, which helped to determine
and understand the general situation of the
development of criminal and procedural law
under the conditions of a special legal regime, as
well as to determine the properties and
relationships of the dynamics of criminal law and
the criminal process with social relations, that
were formed during the period of martial law and
took place in objective reality.
The formal-legal method was used to clarify the
essence and content of such legal categories as a
special legal regime, collaborative activity,
assistance to the aggressor state, and grounds that
exclude a criminal act.
The method of generalization made it possible to
determine the main shortcomings and advantages
of changes in criminal law and process, which
were implemented after the full-scale invasion of
the aggressor state on the territory of Ukraine, as
well as to determine the perspective of applying
such changes in the future. This method served to
determine the dynamics of criminal law and the
criminal process as positive because of the array
of changes that have already taken place and are
yet to take place in the future.
Thanks to the logical-legal method, it became
possible to envision and formulate proposals
regarding the future vector of the dynamics of
criminal law and the criminal process, in
particular, taking into account the changes
analyzed in the study. The specified method
made it possible to assume that the dynamics of
criminal law and process will continue to gain
momentum since the unstable situation in the
state results in increased fluctuations in society,
which in turn require an appropriate response and
regulation.
The research also used the method of content
analysis, which represents the study of a
significant array of normative legal acts that
amended the Criminal Code of Ukraine
(hereinafter - CCU) and the Criminal Procedural
Code of Ukraine (hereinafter - CPC).
The axiological method was applied to identify
private and public values and interests in the
criminal law and process of the war period. This
method helped establish the balance of private
and public interests in prompting the need to
make appropriate changes to the main legal acts
of criminal and criminal procedural legislation,
as well as to monitor the observance of the
highest value of human life and health in the
changes made.
The method of system-structural analysis became
the basis for revealing, based on familiarization
with the texts of normative and doctrinal sources,
the content and meaning of changes to the
legislation within the framework of criminal law
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and criminal process made under martial law, as
well as providing an assessment of the need for
their improvement.
The functional method played a role in clarifying
the fundamental purpose of the dynamics of
criminal law and the criminal process during the
war period, as well as establishing its
significance for the development of social
relations within the state and the protection of
national security, sovereignty, and integrity of
Ukraine.
Results and Discussion
Many laws of Ukraine on amendments to the
Criminal Code of Ukraine testify to the existence
of positive dynamics of criminal law, which is
manifested in the establishment of new acts, for
the commission of which a person can be held
criminally liable, as well as the improvement of
already existing norms of the Criminal Code of
Ukraine. Let's consider some of them, that most
vividly illustrate the dynamics of criminal law
and indicate the vector of their further
development.
Thus, in particular, taking into account the new
challenges to Ukrainian society in connection
with the full-scale invasion of the aggressor on
the territory of Ukraine, the Criminal Code of
Ukraine was supplemented with a new article
201-2 "Illegal use for profit of humanitarian aid,
charitable donations or free aid." The definition
of the specified article for the first time provides
for criminal liability for the sale of goods (items)
of humanitarian aid or the use of charitable
donations, free assistance, or the conclusion of
other transactions regarding the disposal of such
property, to obtain profit, committed in a
significant/large amount (Law 2155-IX, 2022)
"On Making of amendments to the Criminal
Code of Ukraine regarding responsibility for the
illegal use of humanitarian aid", item 1.
It should be noted that the Laws of Ukraine "On
Humanitarian Aid" (Law 1192-XIV, 1999)and
"On Charitable Activities and Charitable
Organizations" (Law 5073-VI, 2012), which are
relevant for the qualification of a person's actions
under the above-mentioned article of the
Criminal Code of Ukraine, are not new, and it can
be assumed that neglecting the main purpose of
goods (items) of humanitarian and/or charitable
assistance were theoretically committed earlier,
however, criminal liability for such actions was
established precisely during the period of the
legal regime of martial law, as it acquired special
relevance and significance.
During the war, considerable attention was paid
to the state of external threats to the foundations
of Ukraine's national security regarding the
criminalization of socially dangerous behavior.
Therefore, in the process of law-making, the
legislative body increased criminal liability for
certain types of crimes in the sphere of national
security of Ukraine (Kovalevskyi, 2022).
An important contribution to ensuring the
foundations of Ukraine's national security,
especially during the period of martial law,
should be considered the establishment for the
first time in the criminal legislation of
responsibility for collaborative activity, which is
provided for in Art. 111-1 of the Criminal Code
of Ukraine (Law 2108-IX, 2022) "On
Amendments to Certain Legislative Acts of
Ukraine on Establishing Criminal Liability for
Collaborative Activities", Clause 4 Clause 1.
The specified article is sufficiently detailed and
covers a considerable number of actions that
equate to collaborative activities. Thus, the said
article covers virtually all actions that were
carried out in support of and in cooperation with
the aggressor state, armed formations, and/or the
occupation administration of the aggressor state.
At the same time, certain forms of
collaborationism require possible clarification or
exclusion. Such forms of committing a criminal
offense primarily duplicate forms of treason
(Kuznetsov & Siyploki, 2022), as well as forms
of aiding the aggressor state (Gazdaika-
Vasilyshyn, Sozansky, 2022).
Changes and additions to the Criminal Code of
Ukraine were developed and adopted by the
legislator as an operational response to the
objective situation, therefore most of them
concern the legal assessment of certain acts, their
criminalization, or strengthening of their
punishment. (Kyrychko, 2017).
Thus, the Cabinet of Ministers of Ukraine
approved and submitted to the Verkhovna Rada
of Ukraine a draft law developed by the Ministry
of Reintegration of the Temporarily Occupied
Territories of Ukraine regarding the exclusion
from the subjects of the crime of collaborative
activity of those persons who do not harm the
interests of Ukraine but are forced in one way or
another to work for the aggressor state. In the
explanatory note to the specified draft law,
registered under No. 7647 of August 8, 2022, it
is stated that completely legitimate activities will
fall under the scope of this article, in particular,
measures aimed at solving humanitarian
problems: medical care, activities in the field of
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pipeline transport, work in a grocery store. (Draft
Law 7647 "On Amendments to the Criminal
Code of Ukraine on Improving Liability for
Collaborative Activities", 2022). It is because of
this, to protect the rights and interests of citizens
of Ukraine, who take appropriate actions to
ensure the proper functioning of the territories of
Ukraine that are temporarily actually occupied,
that there was a need to clarify the relevant
provisions of the Criminal Code of Ukraine.
This bill is a vivid example of the positive
dynamics of criminal law in the conditions of a
special legal regime, as it shows the interest and
effectiveness of the authorities in improving
criminal legislation, taking into account the
needs of the citizens of Ukraine and the realities
of the legal regime of martial law and the special
legal regime in the temporarily occupied territory
of Ukraine.
At the same time, it is worth noting that even
after the end of the war, the problem of
collaborationism will present new challenges to
the government and society, namely the solution
of two opposite problems: the problem of
repentance of collaborators and their
responsibility for the crimes committed, and the
problem of coexistence with collaborators in the
state (Chaltseva, 2022).
Equally important is the addition of Article 111-
2 of the Criminal Code of Ukraine "Assistance to
the aggressor state", according to which
intentional actions aimed at helping the aggressor
state (assistance), armed formations and/or the
occupation administration of the aggressor state,
committed a citizen of Ukraine, a foreigner or a
stateless person, with the exception of citizens of
the aggressor state, with the aim of causing harm
to Ukraine by: implementing or supporting the
decisions and/or actions of the aggressor state,
armed formations and/or the occupation
administration of the aggressor state; voluntary
collection, preparation and/or transfer of material
resources or other assets to representatives of the
aggressor state, its armed formations and/or the
occupying administration of the aggressor state
(Law 2198-IX, 2022) "On Amendments to the
Criminal and Criminal Procedural Codes of
Ukraine on Improving Responsibility for
Collaborative Activities and features of the
application of preventive measures for the
commission of crimes against the foundations of
national and public security", item 2 item 1.
It is also indicative of the dynamics of criminal
law that in the conditions of the legal regime of
martial law, not all improvements and
innovations in criminal law are related to the
establishment of sanctions for the corresponding
actions. Thus, already after the introduction of
martial law in Ukraine, part 3 of Article 263 of
the Criminal Code of Ukraine "Illegal handling
of weapons, ammunition or explosives" was
added, according to which a person is not subject
to criminal liability for the actions provided for
in the first or second part of this article, who
voluntarily surrendered weapons, ammunition,
explosives or explosive devices to the authorities
(Law 2150-IX, 2022) "On Amendments to
Article 263 of the Criminal Code of Ukraine on
Cancellation of Liability in Cases of Voluntary
Surrender of Weapons, Military Supplies,
Explosives or Devices", p .1.
Thus, the Ukrainian legislator established the
legal possibility of a person to avoid being
brought to criminal responsibility for a crime
committed and recognized in the criminal
legislation. In the opinion of the author, this norm
is an example of a rational approach to assessing
the risks and benefits of the so-called forgiveness
of a crime.
The changes related to military actions also
affected circumstances that, by their content,
exclude a criminal offense. Thus, the criminal
legislation was supplemented by Article 43-1 of
the Criminal Code of Ukraine, according to part
1 of which an act (act or inaction) committed in
conditions of martial law or during an armed
conflict and aimed at repelling and deterring
armed aggression of the Russian Federation is
not a criminal offense or aggression of another
country, if it caused damage to the life or health
of the person who carries out such aggression, or
caused damage to law-enforced interests, in the
absence of signs of torture or the use of means of
warfare prohibited by international law, other
violations of the laws and customs of war
provided for by international contracts, the
binding consent of which was given by the
Verkhovna Rada of Ukraine (Law 2124-IX,
2022) "On Amendments to the Criminal Code of
Ukraine and other legislative acts of Ukraine
regarding the determination of circumstances
that exclude the criminal illegality of an act and
provide combat immunity in the conditions of
martial law", item 1.
According to its external (formal, objective)
properties, the active action of a person for the
protection of Ukraine coincides with the signs of
a criminal offense. This is precisely why the
problem of distinguishing such an action from a
criminal offense and excluding criminal liability
for it arises. In particular, such action may fall
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under the signs of murder, bodily injuries of
varying degrees of severity, destruction or
damage to property, etc. (Ponomarenko, 2022).
Yes, the specified acts are crimes by their
content, but, taking into account the need to resist
external armed aggression, the legislator took a
justified risk of establishing and consolidating
the circumstances that exclude the
criminalization of the act.
Changes made to the Criminal Code of Ukraine
during the period of the special legal regime of
martial law are a significant contribution to the
dynamics of criminal law and will be important
in most cases even after its end. As
Yu. Ponomarenko (2019) rightly pointed out,
that actions in which the presence of public
danger is not due to the introduction of martial
law, and even more so actions for which their
commission under martial law is a qualifying
feature, cannot lose public danger after the
abolition of martial law.
The dynamics of criminal law, as a rule, closely
interact with the criminal process, so it is obvious
that the changes in the Criminal Code of Ukraine
(Law 2341-III, 2001) also led to the dynamics of
the criminal process.
Supplementing the Criminal Code of Ukraine
with new articles providing for the introduction
of previously unfixed crimes automatically
means the further formation of the specifics of
the pre-trial investigation of such crimes and new
judicial practice. For example, following the
provisions of Article 297-1 of the Criminal
Procedure Code of Ukraine, a special pre-trial
investigation (in absentia) is carried out based on
the decision of the investigating judge in criminal
proceedings regarding crimes, in particular,
collaborative activities and assistance to the
aggressor state (Law 4651-VI, 2012, part 2
Article 297-1).
Criminal proceedings carried out in the
conditions of emergency legal regimes can be
characterized as a system in a specific system of
legal relations, because in contrast to the conduct
of proceedings in the conditions of ordinary life
activities of society, such categories of
proceedings are in the plane of legal states, which
are regulated by special norms, other methods,
and means (Teteryatnik, 2020).
The specificity of the legal regulation of criminal
proceedings in the conditions of emergency legal
regimes is determined by the fact that, along with
the norms characteristic for the regulation of
legal relations in the conditions of normal life,
emergency laws are included in the normative
component of legal regulation (Teteryatnik,
2020).
Thus, the armed aggression of the Russian
Federation and the subsequent establishment of a
legal regime of martial law on the territory of
Ukraine led to the separation into a separate
section of the Criminal Procedure Code of
Ukraine of provisions relating to the regime of
pre-trial investigation and trial under martial law
conditions. It is worth noting that the specified
section was rewritten several times in a short
period, which indicates the work of the Ukrainian
legislator on existing errors and inaccuracies.
The latest edition was currently approved
following the Law 2201-IX, 2022 "On
Amendments to the Criminal Procedure Code of
Ukraine on Improving the Procedure for
Conducting Criminal Proceedings in Martial
Law".
The content of the articles of the specified section
demonstrates a high level of adaptability and
readiness of the criminal process to certain
deviations from the proper usual regime of pre-
trial investigation or trial, which arose as a result
of the introduction of martial law. Thus, the
legislator provided for the specifics of starting a
pre-trial investigation, recording its results,
conducting a search or inspection of a home,
exercising the powers of an investigating judge
and choosing a preventive measure, detaining a
person, the period of conduct, and participation
of the defense attorney in the relevant procedural
actions, the end of the pre-trial investigation and
the recovery of lost materials.
Analysis of the norms of section IX-1 of the
Criminal Procedure Code of Ukraine allows us to
conclude that in most cases their unifying
ground, in the presence of which, under the
condition of martial law, the norm of the
specified section should be applied, is the
absence of a certain technical possibility to
perform one or another procedural action. For
example, the provisions of Clause 1 of Part 1 of
Article 615 of the Criminal Procedure Code of
Ukraine establish that during martial law and in
the absence of technical access to the Unified
Register of Pre-Trial Investigations, the
investigator, inquirer or prosecutor shall issue a
relevant resolution, and the information to be
entered in the said register shall be entered to him
at the first opportunity. According to Clause 4 of
Part 1 of the specified article, in the absence of
technical access to the Unified Judicial
Information and Telecommunication System, the
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distribution of criminal proceedings materials
between judges is ensured by the head of the
court, and in his absence by the deputy head of
the court (Law 4651-VI, 2012, item 1 , clause 4
part 1 of Article 615).
The specified criminal procedural norms
establish an alternative solution to relevant
problematic issues that arise as a result of
objective factors of martial law and cannot be
resolved within the limits of general procedural
requirements for taking the relevant procedural
action. Thus, the legislator prudently predicted
possible critical situations in advance during the
pre-trial investigation and trial to quickly and
effectively respond to them within the procedural
rights and obligations of the parties to the
criminal process.
No less indicative is the provision of the Criminal
Procedure Code of Ukraine regarding the fact
that during a search or inspection of a person's
home or other possessions, a search of a person
if the involvement of witnesses is objectively
impossible or is associated with potential danger
to their life or health, the relevant investigative
(search) actions are carried out without the
involvement of witnesses. In such a case, the
course and results of a search or inspection of a
person's home or other possessions, a search of a
person, must be recorded by available technical
means by continuous video recording (Law
4651-VI, 2012, clause 1, part 1, article 615).
It is worth noting that the question of the
necessity of the above-mentioned changes was
raised among scientists even before the actual
introduction of martial law. Thus, Teteryatnik G.
(2020) indicated that changes are needed to the
Code of Criminal Procedure of Ukraine
regarding the exclusion of the participation of
witnesses in the conduct of investigations
(investigative) actions in criminal proceedings in
the conditions of emergency legal regimes due to
the high factor of danger (real or potential),
which calls into question the possibility of the
participation of the specified subjects in
procedural actions, and the factor of rapid change
of the situation, which indicates the urgency of
carrying out such actions with the aim
preservation of evidentiary information.
The specified norm is a manifestation of respect
and consideration of the highest value of human
life and health, which should prevail over any
other values and principles. In addition, the cited
norm demonstrates the dynamics of the criminal
process towards more active use of digital
technologies and technical capabilities in cases
where such use is appropriate and justified.
In the opinion of the author, it is worth
considering the issue of the possibility of further
full replacement of witnesses during a search or
inspection of a person's home or other property,
a search of a person for continuous video
recording of the specified procedural actions,
thanks to which it is possible to solve the problem
of excessive time spent on the search for
witnesses, notification and clarification of their
rights, etc.
Before martial law, the system of criminal
proceedings presented a certain degree of
balance of individual and social values, and
public and private interests. And although many
lawyers expressed critical views regarding the
accusatory bias of the criminal process, the
insufficient proportionality of the procedural
capabilities of the various parties to the criminal
proceedings, the victim, after the "war novels" it
became quite clear that the sphere of private
interests is further narrowing (Dufenyuk, 2022).
At the same time, it is not worth talking about
critical oppression and limitation of the sphere of
private interest in criminal proceedings, since the
legal realities of modern life of Ukrainian society
in the conditions of war require a forced
strengthening of public interest in the
inevitability of punishment.
During the legal regime of martial law, it is
advisable to simplify the form of criminal
procedural actions as much as possible, but not to
the detriment of human rights and freedoms
(Loskutov, 2022).
For example, as Lysachenko S. (2021) points out,
it is appropriate to introduce the trend of
obtaining information from a person within the
framework of pre-trial criminal proceedings
through the use of a "free" means by the subject
at his discretion under the conditions of 1) the
propriety of the information received; 2)
observance of the constitutional rights and
freedoms of the person from whom such
information is obtained. The use of an open
system of means of obtaining information from a
person in pre-trial criminal proceedings using a
"free" means involves the inclusion of any means
of obtaining information that do not contradict
the Criminal Procedure Code of Ukraine.
This opinion deserves attention since the current
development of the era of digital technologies
has significantly expanded the methods of
obtaining and transmitting information using
216
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various types of communication. Moreover, in
the conditions of special legal regimes, in
particular martial law, the choice of the
communication channel can be significantly
limited, which is why, to achieve the goal of
criminal proceedings, it is necessary to expand
the variable range of possible permitted means of
obtaining the necessary information from a
person.
The peculiarity of the investigation of a criminal
act in emergencies is due to many reasons,
including the presence of a large number of
victims and witnesses who are forced to leave
their permanent place of residence and are
temporarily in another place.
Thus, to date, to improve the information
provision of pre-trial investigation in the
conditions of martial law, the legislator needs, in
particular, to establish a process of interaction
between the parties of criminal proceedings for
the timely exchange of information necessary to
establish the truth (Kovalyova, 2022).
Conclusions
1. Criminal law and the criminal process in
Ukraine, despite the unstable political and
military situation, continue to actively
develop in the conditions of a special legal
regime, namely martial law, against the
background of changes in social relations
following the needs of the state and society.
2. The dynamics of criminal law, illustrated by
the changes made to the criminal legislation,
shows the multifacetedness of the law-
making policy in the field of criminal law
since the changes made concern not only
those crimes that can be committed during
the period of martial law, but the specified
policy has a common feature, namely,
focusing attention on the maximum
protection of the interests of Ukraine as an
independent, sovereign, territorially integral
state. The introduced changes can be seen as
a vector for the development of criminal law
for the future, already after the end of martial
law, since the mentioned changes will not
lose their relevance.
3. The dynamics of the criminal process under
the conditions of a special legal regime are
aimed at shifting the balance of private and
public interests within the framework of
criminal proceedings towards public ones
since the criticality of the current situation in
Ukraine and the risks from the untimely
adoption of appropriate procedural measures
prevail over the legal restriction of rights. At
the same time, the changes made to the
criminal procedural legislation testify to the
observance of the principle of the highest
value of human life and health, since in the
prescribed cases they minimize the need for
their direct participation in the
implementation of procedural actions.
Indicative for the further development of
criminal law about the process is also the
active involvement of the use of modern
digital and information technologies within
the framework of ensuring the technical
component of the process.
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