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DOI: https://doi.org/10.34069/AI/2024.74.02.16
How to Cite:
Husieva, V., Kryvoruchko, L., Pylyp, V., Makarova, O., & Shynkarenko, I. (2024). The offender and the theory of legal personality:
International and ukrainian contexts. Amazonia Investiga, 13(74), 193-200. https://doi.org/10.34069/AI/2024.74.02.16
The offender and the theory of legal personality: International and
ukrainian contexts
Правосуб’єктність правопорушника та злочинця: міжнародний та український контексти
Received: November 20, 2023 Accepted: January 13, 2024
Written by:
Vlada Husieva1
https://orcid.org/0000-0001-8614-1573
Larysa Kryvoruchko2
https://orcid.org/0000-0001-6635-2381
Victoria Pylyp3
https://orcid.org/0000-0001-6483-0749
Olena Makarova4
https://orcid.org/0000-0002-5480-5942
Iryna Shynkarenko5
https://orcid.org/0000-0001-7136-3333
Abstract
The ability of a person to represent and protect
his interests, and bear legal responsibility for
committing administrative offenses and crimes,
constitutes such a category as the legal
personality. The article's purpose was to compare
the legal personality of an offender and
criminally punishable acts by the legislation of
Ukraine and international legal acts.
For this purpose, the following tasks have been
set: 1) the concept and components of such a
category as "legal entity" were defined; 2) the
peculiarities of the concept of administrative
legal personality are clarified, the limits of the
administrative legal personality of a person who
has committed an administrative offense are
determined; 3) the limits legal personality person
who has committed a criminal offense are
characterized.
The value of individual sources of the United
Nations and the European Court of Human
1
Kharkiv National University of Internal Affairs, Professor of the Department of Criminalistics, Forensic Science and Pre-medical
care Faculty No. 1, Doctor of Law, Professor, Kharkiv, Ukraine. WoS Researcher ID: AAH-3724-2019
2
The Scientific Institute of Public Law, Leading Researcher of the Department of Scientific and Legal Expertise and Draft Law,
Doctor of Law, Kyiv, Ukraine. WoS Researcher ID: IQU-6733-2023
3
Uzhhorod National University, Associate Professor of the Department of Administrative, Financial and Information Law, PhD in
Law, Uzhhorod, Ukraine. WoS Researcher ID: IQU-6834-2023
4
Kharkiv National University of Internal Affairs, Senior Lecturer of Department of Pedagogy and Psychology, Candidate of
Psychological Sciences, Associate Professor, Kharkiv, Ukraine. WoS Researcher ID: IQU-6878-2023
5
Kharkiv National University of Internal Affairs, Associate Professor of the Investigative Activities and Crime Solution, Candidate
of Law, Associate Professor, Kharkiv, Ukraine. WoS Researcher ID: ISA-9824-2023
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Rights for solving the specified tasks is clarified.
Provisions are given that indicate that certain
norms of Ukraine's national legislation do not
correspond to the provisions of international law.
This needs to be settled, because, for example,
the right to a fair trial should be equal for
everyone.
The legal personality within the limits of
administrative and criminal proceedings carried
out by the legislation of Ukraine does not differ.
However, in the case of bringing a person to
justice, it is necessary to evaluate different
components of legal personality.
Keywords: legal personality, crime, forensic
psychiatrist examination, court proceedings in
absentia.
Introduction
The terminological construction "Legal
Personality" is derived from the category
"Subject of Law". "Subject of Law" is a concept
that originated in ancient Rome. The category
"Legal Personality" is widely used in the theory
of law and in-branch legal sciences.
Everyone has the right to recognition everywhere
as a person before the law (United Nations,
1948). A similar definition is contained the Art.
16 of the International Covenant on Civil and
Political Rights (United Nations, 1966). These
norms establish the concept of the legal
personality of a person.
The Basic Law of Ukraine stipulates that
exclusively the laws of Ukraine determine the
legal personality of citizens (Law of Ukraine
No. 254k/96-VR, 1996). The legal personality of
the offender is determined by the norms of the
Code of Ukraine on Administrative Offenses
(Law of Ukraine No. 8073-X, 1984), and the
legal personality of the criminal is by the
Criminal Procedural Code of Ukraine (Law of
Ukraine No. 4651-VI, 2012).
Such a category as legal personality means that a
person, enterprise, state, international
organization, and other forms of population
organization can be participants in legal
relations. In the modern world, there are many
different debatable questions about the definition
of the legal personality of a person, the disabled,
persons who have changed sex, as well as about
the definition of the legal personality of animals
and rivers, artificial intelligence.
The problem of the legal personality of the
offender and the criminal has drawn our
attention. This is important because Ukraine has
been in a state of military conflict for more than
two years. When choosing the measure of
punishment for persons who committed war
crimes, it will be important to be guided by the
provisions of international law especially since
the International Criminal Court and the
European Court of Human Rights will consider
individual cases. In most of the criminal cases
considered by the courts of Ukraine, criminal
proceedings are conducted "in absentia" of the
criminal. Their rights must be respected.
That is why the theory of the criminal's legal
personality, the specifics of its observance in the
investigative and judicial practice of Ukraine, its
compliance with the theory of international legal
personality, and the possibility of bringing a
person to legal responsibility for such criminal
cases this is all a subject for separate thorough
scientific studies.
Literature review
In the science of international law, the
international legal personality of a person studied
has been researched by M. Baimuratov (2004),
N. Kucheruk (2013), and others. Comprehensive
studies were conducted by J. Sánchez (2022),
O. Tarasov (2023), K. Boczek (2023),
O. Pasechnyk (2023), D. DeGrazia, (2023).
F. Renz (2023), P. Księżak and S. Wojtczak
(2023). The works of these scientists became the
theoretical basis for our scientific research.
Scientists tried to determine which subjects
should be prosecuted for violating the provisions
of international law. They also investigated the
peculiarities of the status of individuals, minority
groups, non-governmental organizations,
Husieva, V., Kryvoruchko, L., Pylyp, V., Makarova, O., Shynkarenko, I. / Volume 13 - Issue 74: 193-200 / February, 2024
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international organizations, and animals in the
international legal order. At one time, these
works witnessed the emergence of an
international legal order, which is increasingly
perceived in terms of regularities and
probabilities. Scientists are still analyzing the
provisions of international legal acts. However,
some aspects of this problem remain
insufficiently studied.
O. Kaplina (2022), A. Shulika (2023),
H. Hlobenko (2023), Ye. Pelikhos (2021) studied
the problems of absentee criminal proceedings in
Ukraine. They pointed to debatable issues. The
authors actualized the need to solve them but did
not suggest how it could be done.
Methodology
The article aimed to compare the legal
personality of an offender who committed an
administratively punishable delict and a person
who committed a crime.
Achieving this goal is possible by solving the
following tasks:
1) To define the concept and components of
such a category as "legal personality".
2) To clarify the concept of administrative legal
personality, determine the limits of the
administrative legal personality of a person
who committed an administrative offense.
3) To determine how the provisions of criminal
procedure legislation can characterize the
limits of the legal personality of a criminal.
This study is comparative-legal. The provisions
of the Constitution of Ukraine, the Code of
Ukraine on Administrative Offenses, the
Criminal Code of Ukraine, the Universal
Declaration of Human Rights, and the
International Covenant on Civil and Political
Rights are used for comparison. By the
provisions of these normative legal acts, the
components of the category "legal personality of
the offender" were analyzed. Also, when
conducting a comparative study, the positions of
scientific works of foreign and Ukrainian
scientists were analyzed.
The authors used methods of analyzing, and
synthesis, which made it possible to determine
the normative and legal provisions governing the
legal personality of the offender. The dogmatic,
comparative legal, logical, and generalization
methods, as well as the legal analysis method,
were also used to formulate the research
conclusions.
Empirical research is presented by the results of
the study of 150 judgments of the national courts
of Ukraine. It was issued in 2022 and 2023. The
category of cases is criminal, accused of
collaborationism and treason. Methods of
analysis and generalization were used to collect
data.
Results and discussion
I. The Offender and the Theory of
Legal Personality: Ukrainian
Context
There are two types of legal personality in the
theory of Ukraine's legal science.
‒ The first is general legal personality.
General legal personality is the presence of
the subject of typical rights, obligations, and
the possibility of their use and execution,
regardless of external factors. The scope of
general legal personality is the same for both
natural persons and legal entities.
‒ Special legal personality is the subject of
specific rights, duties, and opportunities. It is
used and fulfilled depending on external
factors. The scope of special legal
personality is not the same or constant, it
depends on the will of the subject, its type,
characteristics, etc.
Some scientists also distinguish three types of
legal personality: 1) general; 2) sectoral;
3) special. General legal personality is
considered a prerequisite for the legal relations
emergences between persons in general, and
sectoral - as the possibility emergences of these
legal relations, but already in a specific field of
law. Branch legal personality is a part of general
legal personality, it includes civil, administrative,
labor, procedural, and others.
II. The offender`s administrative legal
personality
The offender`s administrative legal personality
consists of two elements: 1) administrative legal
capacity, and 2) administrative capacity (Law of
Ukraine No. 8073-X, 1984). Administrative
responsibility is borne by an offender in a state of
conviction and has reached the age of sixteen at
the time of its commission.
The Code of Ukraine on Administrative Offenses
does not specify the procedure for appointing a
psychiatric examination for a person who has
committed an offense. But the expert is
appointed by the body (official) in whose
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proceedings there is a case if need for special
knowledge (Law of Ukraine No. 8073-X, 1984).
To establish the administrative capacity of a
person, a forensic psychiatric examination may
be ordered.
The term for conducting an outpatient forensic
psychiatric examination is up to 30 working
days. This period may be extended with the
notification of the body (person) who appointed
the examination (engaged the expert) and at
whose request) the expert was involved. An
administrative penalty may be imposed within
three months from the date of the commission of
the offense in cases pending before the court, and
within two months in cases pending before the
court of other bodies. Therefore, carrying out
such an examination will lead to missing the
terms of prosecution. In addition, the Code of
Administrative Offenses does not specify the
procedure for appointing a psychiatric
examination if the administrative case is not
under the jurisdiction of the court and when the
person (offender) refuses to undergo it.
Moreover, persons who haven`t reached the age
of majority are endowed with a different scope of
legal personality. At the age of 16 to 18, other
measures are applied for offenders.
Some exceptions make it impossible to bring a
person to criminality. For example, it is a person
who has a chronic mental illness (Corner,
Penhale, & Antony, 2023), a temporary disorder
of mental activity (Husieva et al., 2021),
dementia, or other medical conditions. Based on
the above, it can be said that the scope of legal
personality of all persons - citizens of Ukraine
are not the same, because a person with mental
disorders is not endowed with administrative
delict capacity, and the scope of legal personality
of some persons may change in general,
depending on the type of offense that they
committed.
III. The criminal`s legal personality
Each of the criminal proceedings participants is
endowed with a legal personality. For example,
procedural legal capacity is the ability to demand
judicial protection, to have procedural rights and
obligations, and to be a person participating in
the proceedings.
The criminal procedural law of Ukraine pays
considerable attention to the requirements that a
person must meet to become the subject of
criminal procedural relations. It is appropriate to
talk about the existence of procedural rights and
obligations, legal interests, guarantees of rights,
legal interests, and legal responsibilities of
criminals.
The conditions for legal personality of a suspect
(accused) are the following circumstances:
1) The person reaches the age of criminal
responsibility.
2) Sanity.
3) Notification to a person of suspicion or
detention on suspicion of committing a
crime.
IV. The Criminal`s legal personality in
absentia criminal proceedings:
practice of Ukraine
From 2022 to january 2024, 3,141 verdicts were
passed in cases of crimes against the national
security foundations. Of these, 716 were passed
in absentia criminal proceedings (i.e. in the
absence of the accused).
In such criminal proceedings, pretrial bodies
investigations must use all available means to the
suspect knows about the criminal proceedings
initiated against him. That is, a person should
know about:
‒ that criminal proceedings have been
initiated;
‒ what she is suspected of and to be able to
exercise her right to defense and have her
position in court.
Compliance with these conditions will ensure the
implementation of the adversarial proceedings.
A special pre-trial investigation can be conducted
only in relation to a person who has acquired the
status of a suspect. Such notice must be
personally delivered to the person. If her
whereabouts are unknown, a message about this
should be published in the mass media and on the
official website of the Prosecutor General Office.
The Supreme Court recognizes that informing by
publishing relevant information in mass media,
the Internet, or by e-mail may be considered
sufficient. We believe that these measures cannot
always be considered informative. Being in the
occupied territory, a person may not have access
to the Internet and may not even know that
criminal proceedings have been initiated against
him. This is not the only violation of the
adversarial proceedings principle.
For the proper implementation of the defense
suspect's right, the attorney must receive copies
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of the documents to be handed over to the
suspect. However, it is unclear how he should
hand them over if the location of the suspect is
unknown. In such cases, the lawyer cannot agree
with the suspect on the appropriate legal position,
and secondly, if necessary, he cannot timely
inform about the specifics of the case in court.
The outlined aspects have an extremely negative
impact on the provision of effective legal
assistance to the suspect. This indicates the
limitation of its legal personality.
V. The Offender and the Theory of
Legal Personality: International
Context
According to the law, people are composed of
statically structured bodies and identities
(Naffine, 2012). A change in status or gender
should also change the legal personality of a
person. That it is, it leads to a new static way of
existence. Thus the legal personality of a person
can theoretically change several times during his
life (Grabham, 2010).
In the modern world, legal personality is defined
differently according to civil law (Dong, &
Zhang, 2023), corporate law, and criminal law
(Osmanollaj, 2023).
International legal personality is considered
through the prism of a three-dimensional
approach - normative, personal, and
communicative.
The normative approach is the social actor's
ability to be the bearer of legal status, to have
rights, and to bear obligations (legal normative
capacity). The personal approach is the social
actor's ability to be a subject of law, a bearer of
the personal legal physical form, or a sovereign
person (legal personality). The communicative
approach is the social actor's ability to participate
in legal communication, as a party to a legal
relationship (legal communication ability)
(Boczek, 2023).
The concept of international legal capacity is
equated with international legal personality.
However, each category of subject of
international law has a different legal capacity
and is determined by a set of potential rights and
obligations. In this sense, it is important to
distinguish between legal capacity and legal
personality.
Each category of subjects of international law has
a different legal personality and reflects their
specific features. In this sense, if international
legal capacity indicates the legal framework of a
person's possible behavior, then legal personality
as a qualitative characteristic reflects not the size
of these frameworks, but their presence.
International legal capacity means the ability, or
the possibility, to enter into legal relations within
the limits of those rights and obligations that a
person is endowed with.
A vivid illustration of this difference is the
provision of clause 1 of Art. 4 of the Rome
Statute of the International Criminal Court.
According to it "the court has international legal
personality. It shall also have such legal capacity
as may be necessary for the exercise of its
functions and the achievement of its objectives"
(Asamblea General UN, 1998). In the given
provision, a clear distinction is made between the
concept of legal personality as a qualitative
characteristic that has no volume and legal
capacity as a quantitative characteristic that is
different in its content.
For a subject of international law, not only the
ability to possess rights and obligations is
important, but also to realize his international
legal status, which, in addition to rights and
obligations, includes the subject's freedoms, his
legal interests, etc.
International legal personality characterizes the
legal status of its bearer. At the same time, it is
the basis of such status and a prerequisite for the
subjects of international law participation in
international legal relations. It is in the legal
status of the subject of international law that the
character and scope of international legal
personality are reflected.
The equal subjects of international law can have
(and often do) different legal status. This has
been established as a precedent in modern
international law. In the advisory opinion of the
International Court of the United Nations, it was
recorded that "subjects of the law of one or
another legal system are not necessarily identical,
since it is about their nature or the scope of their
rights" (Asamblea general UN, 1998).
International legal personality acts as a
prerequisite for participation in international
legal relations. Based on the general theory of
law, the subjects of specific international legal
relations exercise certain international rights and
perform the corresponding duties that constitute
the legal content of such legal relations.
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Thus, Article 34 of the Charter of the
International Court of Justice of the United
Nations stipulates: "Only states can be parties to
cases pending in court" (United Nations, 1945).
Also, for example, part 4 of Article 55 of the
Constitution of Ukraine states that "Everyone has
the right, after using all national legal remedies,
to apply for the protection of his rights and
freedoms to the relevant international judicial
institutions or international organizations, which
he is a member or is Ukraine" (Law of Ukraine
No. 254k/96-VR, 1996). That is, the state must
be a party to a certain agreement and must
recognize the competence of the committee
established by the relevant agreement. This
proves that the boundaries of the legal
personality of a person and the state are different,
and therefore not every citizen can apply
independently for the protection of his rights.
VI. The International principles of
administration justice «in absentia»
International standards of fair justice are defined
by the Convention for the Protection of Human
Rights and Fundamental Freedoms, the
International Covenant on Civil and Political
Rights, and other normative legal acts. All of
them declare the need for the accused to be
present at the trial. However, some international
documents do not define it as mandatory.
Such exceptions are provided for in Article 21 of
the European Convention on the International
Validity of Criminal Procedures (Council of
Europe, 1970), Recommendation No. 6 R (87) 18
of the Committee of Ministers of the Council of
Europe to member states "Regarding the
simplification of criminal justice" (The
Committee of Ministers of the Council of
Europe, 1987).
The precedent practice of the European Court of
Human Rights provides that the absence of the
accused in the court session is possible if:
a) He has been duly notified of the judicial
proceedings to be held against him;
b) He is guaranteed the realization of his right
to protection;
c) The accused deliberately refused to
participate in the trial;
d) The accused has the right to a retrial of this
case.
Conclusions
Criminals in cases against the national security
foundations usually have Ukrainian citizenship.
If they appeal the decisions made in absentia, this
may increase the number of complaints to the
European Court of Human Rights against the
national courts of Ukraine. We believe that the
person should be declared an internationally
wanted person and only then his case should be
brought to trial. This approach is justified. For
example, in Ukraine, judgments of courts of
foreign countries passed in absentia, are not
subject to execution. Exceptions are only those
cases when the sentenced person was given a
copy of the verdict and was allowed to appeal it.
Citizens of Ukraine should have the same rights
under the national legislation of Ukraine.
The current study has shown that the legal
personality of the offender is a complex and
multifaceted concept that is subject to various
limitations. The study's findings have important
implications for legal practice and legal theory.
In legal practice, the study's findings could be
used to develop more effective defense strategies
for defendants. In legal theory, the study's
findings could be used to refine the
understanding of the offender's legal personality.
Current trends suggest that the theoretical and
legal doctrine of legal personality must continue
to develop to adapt to the changing reality of
international law.
We recommended that future research explore in
greater depth the theoretical and legal doctrine of
legal personality development.
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