296
www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2024.75.03.25
How to Cite:
Movchan, R., Kamensky, D., Dudorov, O., Mamedova, S., & Holovchuk, V. (2024). Intentional destruction or damage of objects of
plant life as a crime under the law of Ukraine and other European countries: cross-jurisdictional analysis. Amazonia
Investiga, 13(75), 296-307. https://doi.org/10.34069/AI/2024.75.03.25
Intentional destruction or damage of objects of plant life as a crime
under the law of Ukraine and other European countries:
cross-jurisdictional analysis
Умисне знищення або пошкодження об’єктів рослинного світу як злочин за законодавством
України та інших європейських країн: міжюрисдикційний аналіз
Received: January 20, 2024 Accepted: March 27, 2024
Written by:
Roman Movchan1
https://orcid.org/0000-0003-2074-8895
Dmitriy Kamensky2
https://orcid.org/0000-0002-3610-2514
Oleksandr Dudorov3
https://orcid.org/0000-0003-4860-0681
Svitlana Mamedova4
https://orcid.org/0000-0002-4479-3554
Vitalii Holovchuk5
https://orcid.org/0009-0004-8931-159X
Abstract
The key goal of this research paper is to analyze
the specific features of legislative construction of
Article 245 of the Criminal Code of Ukraine, in
particular, the method of statutory reflection of
the elements of the subject matter and subjective
side of this criminal wrongful act used therein,
and also to study the relevant European
experience. This will enable to develop proposals
aimed at improving the provisions of current
national criminal legislation, which are intended
to guarantee the protection of flora by means of
Ukrainian criminal law.
In the course of relevant comparative legal
research and formulation of conclusions, the
author used a number of different scientific
methods of cognition, in particular: modeling,
1
Doctor of Law, Professor, Professor of the Department of Constitutional, International and Criminal Law at Vasyl’ Stus Donetsk
National University, Ukraine. WoS Researcher ID: AAK-1080-2021
2
Doctor of Law, Professor, Professor of the Legal Courses Department at Berdyansk State Pedagogical University, Ukraine.
WoS Researcher ID: AAQ-4357-2021
3
Doctor of Law, Professor, Professor of the Department of Criminal Law Policy and Criminal Law of the Educational and Scientific
Institute of Law at Taras Shevchenko National University of Kyiv, Ukraine. WoS Researcher ID: ABA-1022-2021
4
Doctor of Philosophy in Law, Associate Professor of the Department of Civil Law and Procedure at Vasyl’Stus Donetsk National
University, Ukraine. WoS Researcher ID: KBB-1612-2024
5
Candidate of Law, Senior Lecturer of the Department of Constitutional, International and Criminal Law at Vasyl’Stus Donetsk
National University, Ukraine. WoS Researcher ID: КАМ-3526-2024
Movchan, R., Kamensky, D., Dudorov, O., Mamedova, S., Holovchuk, V. / Volume 13 - Issue 75: 296-307 / March, 2024
Volume 13 - Issue 75
/ March 2024
297
http:// www.amazoniainvestiga.info ISSN 2322- 6307
comparative, dialectical, systemic as well as
statistical methods.
A conclusion has been reached that the newer
version of the criminal law norm under study
should, firstly, retain criminal liability for
trespass to any type of vegetation, and not only
violations relating to forests, and secondly,
within its framework, liability for a)
encroachment not only on green spaces around
settlements, along railways, but also on any other
green spaces, including those not located in
appropriate places; b) destruction/damage of
vegetation on lands of any category from among
those provided for by the Land Code of Ukraine.
In addition, the authors argue that it is necessary
to establish penalties for intentional and
negligent destruction of flora that differ in
severity, which is explained by the significantly
different degree of public harmfulness.
Keywords: crime, environment, flora, damage,
intent.
Introduction
The Strategy of the State Environmental Policy
of Ukraine for the period until 2030 states that,
on the one hand, the biosphere of Ukraine
includes more than 70 thousand species of flora
and fauna, in particular, more than 27 thousand
species of flora, and, on the other hand, states that
the main threat to biological diversity is human
activity and the destruction of the natural habitat
of flora (Law of Ukraine No. 2697-VIII, 2019).
At the same time, special attention is drawn to the
fact that the lack of a system of financing forestry
activities, especially in the eastern and southern
regions of Ukraine, led to the termination of
works on the creation of protective forest
plantations on low-productivity and degraded
lands and the failure to implement preventive
fire-fighting measures in forests, which has
increased the risk of forest fires.
Hence, it is not surprising that in recent years,
ever more attention has been paid in Ukraine to
the issue of increasing the effectiveness of
criminal law measures against destruction or
damage of objects of the plant world, in
particular, the spontaneous burning of vegetation
and its remains. The presence of this fact has to
be connected both with the reassessment of the
degree of social danger of this act for the society,
and with the ineffectiveness of Art. 245 of the
Criminal Code of Ukraine (hereinafter – the CC
of Ukraine) “Destruction or damage to objects of
plant life”, the prescriptions of which should
ensure the above-mentioned countermeasures.
At the same time, one should note that domestic
criminal law researchers, in particular the authors
of this paper (Movchan, 2023a; Movchan,
2023b; Movchan et al., 2024), have previously
drawn attention to the inefficiency of Art. 245 of
the CC of Ukraine, which is most often explained
by numerous flaws in its construction, including
in terms of legislative statement of certain
objective (in particular, the perpetrator element)
and subjective (in particular, guilt) features of the
analyzed crime. Therefore, we will elaborate on
recommendations aimed at eliminating such
shortcomings within this research paper.
Having declared the purpose and scope of the
study, we would like to refer to the reasonable
remarks by M. Havronyuk. He wrote that to
maximize the effectiveness of Ukrainian criminal
law, it should incorporate the most successful
principles from European and global criminal
jurisprudence, as well as insights from foreign
298
www.amazoniainvestiga.info ISSN 2322- 6307
criminal legal systems (Havronyuk, 2013). And
it is obvious that such argument, especially given
the European integration aspirations of Ukraine,
predominantly applies to European countries,
whose legislation in the part related to criminal
law protection of flora and fauna will be studied
in the course of this paper for further use in
improving the relevant provisions of national
legislation.
The relevance of this comparative study is
conditioned by the arguments described above,
based on the results of which the authors have
developed specific recommendations addressed
to Ukrainian parliamentarians and law
enforcement officers with the goal of improving
the relevant prescriptions of domestic criminal
law and the practice of their application,
respectively.
Меthodology
This study extensively refers to the comparative
method with the goal of comparing various
approaches to regulating liability for criminal
offenses against flora existing in Ukraine and
European countries. This key research method is
most actively used by Ukrainian scholars in
modern scholarship (Kamensky et al., 2023). For
the purposes of this study, we have chosen the
legislation of thirty European states (except
Ukraine) which criminal codes provide for
liability for various encroachments on flora.
These countries include: Albania, Austria,
Bulgaria, Croatia, Czech Republic, Denmark,
Estonia, Georgia, Iceland, Italy, Latvia,
Liechtenstein, Lithuania, Macedonia, Moldova,
Montenegro, the Netherlands, Norway, Poland,
Portugal, San Marino, Serbia, Slovakia,
Slovenia, Spain, Sweden, Switzerland, Turkey,
Hungary, Germany, Hungary, Sweden,
Switzerland, and the Czech Republic. The study
of the legislation of quite a few countries is
explained by the fact that the legal literature has
proved that such step allows to increase the
effectiveness of comparative study.
In addition to the comparative method, a number
of other methods of scientific analyses have
proved useful in the course of the study
(Myroshnychenko et al., 2024). The
philosophical (dialectical) method has allowed,
in particular, to divide the latter into two
conditional parts, which are devoted to the
comparative characterization of the approaches
used in the CC of Ukraine and the criminal
legislation of European countries to construct
features of the subject matter and the subjective
side of the criminal offense under consideration,
respectively (Movchan et al., 2023). The
systemic method made it possible to use not only
criminal law provisions but also domestic
regulatory legislation to solve the problems
under study, in particular, forestry and land
legislation. The statistical method contributed to
the analysis and generalization of empirical
information, in particular, to the study and
critical comprehension of judicial practice in
relation to consideration of specific cases, which
are referred to in the article. Using the modeling
method, the author developed specific proposals,
which may be useful for improving provisions of
current criminal and administrative legislation,
and also formulated proposals aimed at
improving the relevant court practice, in
particular, regarding the distinction between the
modes of criminal and administrative liability,
respectively, for destruction or causing damage
to flora.
At the same time, when collecting relevant
statistical data, information posted in the Unified
State Register of Court Decisions was used, as
well as relevant software (legal databases).
The carefully chosen methods for the purposes of
our legal research have allowed to better analyze
various parameters of criminal liability for the
intentional destruction or damage of objects of
plant life under the law of Ukraine and of other
European countries. In particular, the
combination of research tools has allowed to
propose rational amendments to Article 245
“Destruction or damage to plant life objects” of
the Ukrainian Criminal Code.
Literature review
In Ukraine, the most significant contributions to
the development of the relevant issues have been
made, in particular, by the following scholars:
I. Berdnik (Berdnik, 2018), T. Kornyakova
(Kornyakova, 2011), V. Matviychuk
(Matviychuk, 2011, 2016), and Yu. Turlova
(Turlova, 2015).
In particular, I. Berdnik developed criteria for
distinguishing the analyzed criminal act from
related administrative offenses (Berdnik, 2018).
As for her part, Yu. Turlova carried out a
comprehensive analysis of the practice of
imposing punishment for committing all
environment related criminal offenses, in
particular, and the destruction or damage of
plants provided by the discussed legal provision
(Turlova, 2015).
Volume 13 - Issue 75
/ March 2024
299
http:// www.amazoniainvestiga.info ISSN 2322- 6307
As for scholars from other countries (except
Ukraine), various issues of “plant” ecocide and
other “anti-flora” crimes have been explored at
length by M. Faure (Faure, 2017), M. Cohen
(Cohen, 1992), K. Begiashvili (Begiashvili,
2023), A. Lavorgna (Lavorgna et al., 2018),
G. Okuyucu Ergün (Okuyucu Ergün, 2021),
F. Campbell (Campbell, 1988) and other
scholars.
In particular, K. Begiashvili points out to the
necessity of calculating damage caused by the
illegal felling of trees and shrubs. In contrast to
the clauses imposed on other categories of
crimes, the Criminal Code of Georgia, as this
author argues, does not impose a specific amount
of damage in the event of illegal felling of trees
and shrubs, which often creates uncertainty for
the involved parties (Begiashvili, 2023).
G. Okuyucu Ergün has, in his turn, analyzed
various legal aspects of the protection of
environment through means of criminal law
statutes in the EU. He wrote that in 2008, the
Directive 2008/99/EC on the protection of the
environment through criminal law was adopted.
This Directive, which is currently the main legal
instrument of the EU law on this subject, obliges
Member States to provide for criminal penalties
in their national legislation in respect of serious
infringements of the EU’s environmental
legislation (Okuyucu Ergün, 2021). Obviously,
this protection regime applies to plant life as
well.
A. Lavorgna with a group of European co-
authors refer to the important fact that the
Convention on International Trade in
Endangered Species of Wild Fauna and Flora
(CITES) serves as the primary legal structure
overseeing the international trade of wildlife.
Enacted in 1975, its goal is to safeguard species
in the wild by ensuring that international trade
doesn’t harm their survival. It mandates that any
such trade must be sustainable, following robust
biological standards, and lawful, in accordance
with relevant national laws. Despite CITES and
its principles, endangered species are still illicitly
traded. This is an ever growing negative trend in
the digital age and Internet commerce (Lavorgna
et al., 2018).
Similar line of academic inquiry into
international and national environmental
criminal law has been conducted by some
Ukrainian legal scholars (Lisova & Sharapova,
2020).
And American scholar F. Campbell makes a
good point that unlike wild vertebrate animals,
legal protection of plants in the United States is
limited to “endangered” species only. The U.S.
law does not attempt to regulate exploitation of
common plant species. Thus, the author supports
the argument for the prohibition of collection or
destruction of endangered plants on public lands,
other than national and state parks (Campbell,
1988).
The authors have also previously commented on
some criminal law issues under review (land,
subsoil (Movchan et al, 2021; Movchan et al,
2022).
Thus, based on the results of the analysis of the
scientific research carried out by the above-
mentioned authors, we see that those authors
mainly focused their attention either on the issues
of complex criminal law counteraction to the
commission of environmental torts, or on the
problems of criminal liability for encroachment
on other than plant life, types of natural resources
– land, subsoil, air, animal life, or only on those
problems that are characteristic of certain
countries without resorting to the properties of
criminal law comparative studies.
So, in general, it can be stated that the issue of
criminal legal response to encroachments on the
environment is covered quite thoroughly in
Ukrainian and foreign legal literature. At the
same time, it should be noted that neither
domestic, nor European scholars have conducted
any special studies which would provide a
comprehensive comparative analysis of the
provisions of the Ukrainian Criminal Code and
European countries’ legislation dedicated to
criminal law protection of flora, and this is the
main reason for the chosen topic’s relevance.
Results and discussion
Forests, green spaces, stubble, dry wild herbs,
vegetation and its remains constitute the object of
the crime (material element) under Art. 245 of
the Criminal Code of Ukraine is. As for such
elements as “settlements”, “railways” and
“agricultural land”, they should be recognized as
a place of destruction or damage to certain items
of flora. However, given the respective
legislative “merger” of these features, they will
be analyzed in a combined mode.
Furthermore, the question arises as to the optimal
formulation of certain features of the criminal
offense under study. The issues that require
300
www.amazoniainvestiga.info ISSN 2322- 6307
separate consideration as the most controversial
include the justification of: a) recognizing not
only forests and green spaces, but also other
types of vegetation as the object of the discussed
offense; b) limiting the subject matter of the
criminal offense not to any, but only to certain
types of green spaces, which are located outside
settlements and along railways, as well as
stubble, dry wild-growing grasses, vegetation or
its remains, which are located on agricultural
land only.
In addressing these issues, as announced in the
introduction to this research paper, we decided to
turn to the relevant foreign experience, which in
this case seems to be an even more appropriate
step for Ukraine given that many European
countries, and especially those representing the
so-called Western branch of the Romano-
Germanic criminal law system, can “boast” of a
much longer history of regulating liability for
fire-related crimes than the domestic one. After
conducting a comparative study, we have
identified three main approaches to the
construction of the relevant norms, which we will
conditionally label as “general”, “forest
protective” and “comprehensive
environmentally protective”:
1) criminal legislation of the countries where
the “general” (first) approach has been
implemented provides only for general rules
for liability caused by fire, which do not
contain any “reference” to the forest or any
other natural objects, and the main condition
for criminal liability is the creation of public
danger, in the sections on which the relevant
rules are placed (Articles 169-170 of the
Austrian Criminal Code (Criminal Code of
Austria, 1974), Articles 180-182 of the
Danish Criminal Code (Criminal Code of
Denmark No. 976 , 2019), Article 355 of the
Norwegian Criminal Code (Criminal Code
of Norway, 2005); also, Article 284 of the
Slovakian (Criminal Code of Slovakia No.
300/2005, 2005), Article 314 of the
Slovenian (Criminal Code of Slovenia No.
50/12, 2008), Chapter 13 of the Swedish
(Criminal Code of Sweden No. 1962:700,
1962) Criminal Codes, etc.);
2) criminal legislation of other countries
embodies the “forest protection” (second)
approach, the content of which is to
criminalize fires that have led to the
destruction or damage of only one type of
natural resources – forest (forest areas), for
which the punishment is more severe
compared to the one provided for an
“ordinary” fire (violation of fire safety rules)
(Art. 206-b of the Criminal Code of Albania
(Criminal Code of Albania No. 7491, 1991),
Article 236 of the Criminal Code of Bulgaria
(Criminal Code of Bulgaria No. 26, 1968),
Article 304 of the Criminal Code of Georgia
(Criminal Code of Georgia No. 2287-rs,
1999), Article 423-1 of the Criminal Code of
Italy (Criminal Code of Italy No. 1398,
1930), Article 232 of the Criminal Code of
Moldova (Criminal Code of the Republic of
Moldova No. 985-XV, 2002);
3) instead, parliamentarians of the latter group
of states support and employ the
“comprehensive environmental
protection” (or third) approach, recognizing
as criminal only those offenses which had
led to fires either in forests or in some other
or any other natural areas. At the same time,
it should be noted: if in one group of such
countries liability for destruction or damage
(not exact term) by fire of all natural
resources is unified (Article 429(3) of the
Criminal Code of the Netherlands (Criminal
Code of the Netherlands, 1881) – forest,
heather, grass, peatlands; Article 272(1)(a)
of the Criminal Code of Portugal (Criminal
Code of Portugal No. 48/95, 1995) – forest,
trees, wheat fields; Article 306(1)(5) of the
Criminal Code of Germany (Criminal Code
of Germany, 1998) – forests, fields
(meadows and steppes) and peatlands),
while in others, more severe penalties are
provided for committing forest fires, which
are often covered in separate articles (Article
352 (natural objects) and Articles 354-355 of
the Estonian Criminal Code (forest) (not
only by fire, but also by other means)
(Criminal Code of Estonia, 2001); Articles
352-355 (forest), Article 356 (other natural
areas planted with plants) of the Spanish
Criminal Code (Criminal Code of Spain No.
10/1995, 1995).
Based on the above provisions, we were able to
reach the following interim conclusions.
Firstly, in the analyzed provision of the national
criminal legislation, it is quite fair and
appropriate to recognize as criminal offenses
encroachments on any type of vegetation Article
245 of the CC of Ukraine (unlike some of the
above-mentioned legislative approaches)
(Criminal Code of Ukraine No. 2341-III, 2001).
In arguing our demonstrated position, we must,
on the one hand, point out the undeniable
harmfulness of such actions for the Ukrainian
environment, while, on the other hand, point to
the fact that provisions of the national criminal
Volume 13 - Issue 75
/ March 2024
301
http:// www.amazoniainvestiga.info ISSN 2322- 6307
law other than Article 245 of the CC of Ukraine
(Criminal Code of Ukraine No. 2341-III, 2001)
do not allow for a proper legal assessment of such
encroachments. After all: a) Art. 194 of the CC
of Ukraine provides for response to cases of
destruction or damage only to “property”, which
does not include vegetation, and “other’s”
property, which makes it impossible to recognize
arson of one’s own property as a crime; b) Art.
270 of the CC of Ukraine (Criminal Code of
Ukraine No. 2341-III, 2001) can be applied only
to persons whose attitude to the consequences
was negligent and provided that actions of such
persons caused harm to human health or property
damage on a large scale (300 or more non-
taxable minimum incomes).
Secondly, encroachments (destruction/damage)
should be recognized as criminal offenses not
only on green spaces around settlements and
along railways, as provided for in the current
version of the criminal law prohibition under
study, but also on any other green spaces,
including those not located in appropriate places,
because, as practice shows, arson can cause
extremely great environmental damage. And that
is why the updated version of the relevant
provision should remove the relevant restriction
on the place of commission of a criminal offense.
The relevant European experience also serves as
an additional argument in favor of such
recommendations. Thus, I would like to point out
that: within Art. 236 of the Criminal Code of
Bulgaria (Criminal Code of Bulgaria No. 26,
1968), the object/place of crime is recognized as
forest trees, seedlings, forest crops, forest
nursery, undergrowth; in Art. 304 of the Criminal
Code of Georgia (Criminal Code of Georgia No.
2287-rs, 1999) – as forests and plantations; in
Art. 354-355 of the Criminal Code of Estonia
(Criminal Code of Estonia, 2001)– as trees and
shrubs in forests and other plantations; in Art.
356 of the Criminal Code of Spain – as plants in
non-forest areas (along with the provisions on
forests and forest areas); in Art. 423-1 of the
Criminal Code of Italy (Criminal Code of Italy
No. 1398, 1930) – as forest, grove, forest
nurseries; in Art. 272 of the Criminal Code of
Portugal – as forests and trees not located in
them. The criminal legislation of all these
countries either explicitly states that the relevant
crime covers those trees that are not part of the
forest fund, or uses the general wording “trees”
(“vegetation”), without indicating that such trees
are included in the forest fund.
We recommend harmonizing the specified
provisions of criminal and forestry legislation by
defining the object of the crime under Article 245
of the CC of Ukraine (Criminal Code of Ukraine
No. 2341-III, 2001) as “forests and green
spaces”. This, on the one hand, will make it
possible to cover green spaces within settlements
and along highways, and, on the other hand, will
allow not to extend its provisions to individual
trees and groups of trees, shrubs on agricultural
land, private and garden plots (as well as self-
forested plots within settlements with trees of
average age less than 30 years, and self-forested
plots within the protection zones of energy
facilities, main heating networks, main pipelines
and other linear infrastructure facilities), which
should be recognized as “other types of
vegetation”.
Similarly to Ukraine, in some other European
countries, the relevant provisions only mention
“forest” and/or forest areas” (Articles 107–108 of
the Criminal Code of Latvia (Criminal Code of
Latvia, 1998), Article 232 of the Criminal Code
of Moldova (Criminal Code of the Republic of
Moldova No. 985-XV, 2002). At the same time,
in the course of our research, no examples were
found where these norms protect, as provided for
in Article 245 of the Criminal Code of Ukraine,
only those types of vegetation (as well as its
residues) located on agricultural land. We found
no reason for such restriction. In addition to
agricultural lands, Ukraine also distinguishes the
following: residential and public development
lands; lands of nature reserves and other
environmental protection purposes; lands of
health improvement purposes; lands of
recreational purposes; lands of historical and
cultural purposes; lands of forestry purposes;
lands of the water fund; lands of industry,
transport, electronic communications, energy,
defense and other purposes (Land Code of
Ukraine, 2001).
This raises the question, which can obviously be
deemed as rhetorical: is the burning of vegetation
or its residues on lands with natural healing
(recreational) purposes, used for organizing
recreation, tourism and sports events
(recreational purposes), where cultural heritage
monuments are located, etc. less dangerous than
similar actions committed on agricultural lands?
The question also arises whether the danger of
burning fallen leaves (vegetation residues)
depends on where such actions took place
(Oliynychuk, 2021).
However, the most surprising port in this
analyses is that under Art. 245 of the CC of
Ukraine, destruction or damage to vegetation
302
www.amazoniainvestiga.info ISSN 2322- 6307
committed even on the lands of the protected
areas (lands which have special environmental,
ecological, scientific, aesthetic, recreational and
other value, which are granted the status of
territories and objects of the protected areas by
law), i.e. actions which legal assessment should
be carried out with reference only to part 2 of Art.
77-1 of the Code of Administrative Offenses
(Code of Ukraine on Administrative offenses,
1984), which, on the contrary, gives this fact an
aggravating feature in comparison with similar
behavior on agricultural lands (part 1).
Here we could mention Art. 252 of the CC of
Ukraine, which provides for liability for the
encroachments against territories under state
protection and also protected areas. However,
this provision, despite reasonable proposals by
scholars (Kovtun, 2010), still provides for the
possibility of recognizing only intentional
manifestations of the relevant acts, the
percentage of which (compared to negligent
ones) is traditionally much lower. So where is the
logic and common sense here?
Yet another issue that does not contribute to the
effective criminal law protection of flora is the
problem of distinguishing the crime under
Article 245 of the CC of Ukraine (Criminal Code
of Ukraine No. 2341-III, 2001) from
administrative offenses under Part 2 of Article 77
and Article 77-1 of the Code of Administrative
Offenses (Code of Ukraine on Administrative
offenses, 1984).
One should begin the analyses of this issue with
the mention that the guilt element of this crime is
quite specific. This refers to the fact recognized
by most researchers that, in addition to direct
intent, this crime also implies the presence of
both indirect intent and negligence (Dudorov et
al., 2014; Criminal Code of Ukraine
No. 2341-III, 2001). We are convinced that such
“versatility” is not an advantage but rather a
disadvantage of the analyzed criminal law
prohibition. This, in turn, gives rise to a number
of negative consequences, with the main ones
being as follows.
Firstly, the impossibility of using the form of
guilt to distinguish between related criminal and
administrative offenses. The academic literature
suggests using the form of guilt (intent or
negligence) to distinguish between the elements
of the discussed crime (in case of destruction or
damage to the forest by fire) and administrative
offense of destruction or damage to the forest due
to careless handling of fire, as well as violation
of fire safety requirements in forests, which has
led to the outbreak of a forest fire or its spread
over a large area. Here negligence is
characteristic of an administrative offense, while
intent – that of a crime. This recommendation is
perceived ambiguously, because formally the
negligent destruction or damage to flora
simultaneously meets both elements of a crime
under Article 245 of the CC of Ukraine (Criminal
Code of Ukraine, 2001) and elements of relevant
administrative offenses. Obviously, this issue can
be partially solved by improving the legislative
wording of the elements of the criminal
destruction or damage to flora.
Secondly, it is the existing unification of liability
for the destruction or damage of flora committed
with any form of guilt. In other words, today there
is a situation where the form of guilt does not
actually affect the legal (criminal law, in
particular) analyses of the violation.
We have already drawn attention to the
differentiated approach toward the regulation of
criminal liability for intentional and negligent
damage to other (not forest) environmental
elements. For example, while the Austrian
Criminal Code (Criminal Code of Austria, 1974)
provides for up to 3 years imprisonment for
intentional pollution of the environment (Art.
180), the penalty for negligent pollution is only
up to 1 year (Art. 181). In German penal
legislation, the sanction for intentional soil
pollution is also more severe than for negligent
acts. Such significant difference in punishment is
inherent in the sanctions provided for, in
particular, pollution of water bodies, air
pollution, noise, vibration and non-ionizing
radiation, unauthorized waste management,
unauthorized handling of radioactive substances
and other dangerous goods and cargo, threats to
areas in need of protection (Articles 324, 325,
325a, 326, 328, 329 of the German Criminal
Code, respectively), In addition to other
countries of the so-called “Germanic” group of
criminal law (Estonia, Liechtenstein,
Switzerland), this approach has been adopted by
parliamentarians of Lithuania, the Netherlands,
Portugal, Turkey, most Central European
countries (Bulgaria, Poland, Slovakia, Hungary,
Czech Republic), as well as countries of the
“Yugoslav” group of the continental family of
criminal law systems (Macedonia, Serbia,
Slovenia, Croatia, Montenegro) (Dudorov &
Movchan, 2020; Movchan, 2021).
It should be also noted that not only in Article
245 of the Ukrainian CC, but also in other
provisions of Section VIII (Articles 239, 241-
244) (Criminal Code of Ukraine No. 2341-III,
Volume 13 - Issue 75
/ March 2024
303
http:// www.amazoniainvestiga.info ISSN 2322- 6307
2001), the provisions of which also do not
provide for the possibility of grading liability for
pollution of certain elements of the environment
(land, air, water, flora) depending on the form of
guilt. According to S. Havrysh, in crimes against
the environment, especially in the field of
environmental safety, where grave and especially
grave inevitable consequences may occur, the
preservation of parity of forms of guilt is quite
reasonable (Gavrysh, 2002). V. Matviychuk
comments in a similar manner (Matviychuk,
2016).
Despite the existence of the argument about the
need to comply with the principle of parity, we
are inclined to associate the motives of the
analyzed legislative decision on pollution of
natural resources with the fact that the
development and adoption of the Criminal Code
of Ukraine was mainly based not on the above-
mentioned European experience, but on the
experience of the countries of the so-called
Commonwealth of Independent States (CIS)
group. In many cases, the Model Criminal Code
for the CIS countries, approved by the
Interparliamentary Assembly of the CIS member
states on February 17, 1996, was taken as a
model, which unifies liability for pollution of
natural resources (Articles 222-226) (Model
Criminal Code, 1996), just as in the active
Criminal Code of Ukraine. It should be noted that
differentiation of liability for destruction/damage
of forests, on the one hand, committed by arson,
and, on the other hand, those, which resulted
from careless handling of fire, was provided even
in the aforementioned recommendation
document (Article 232(1) and (2)).
We can continue to cite various axiomatic
provisions, which show the failure of Ukrainian
legislator’s decision to unify liability for
intentional and negligent encroachments on
specific environmental areas. Of course, if
desired, certain terminological differences can be
noticed in the above statements of scholars, but
for the purpose of solving pragmatic tasks of
improving the Criminal Code of Ukraine, we do
not consider them fundamental. We proceed
from the established approach, based on which
public danger as a feature of the concept of a
criminal offense is both an objective and
subjective category determined, in particular, by
the importance of social relations that are placed
under criminal law protection, the severity of
consequences, the method of action, the stage of
the act, and the form of guilt.
By extrapolating the above to the subject of this
study, it can be argued that there are hardly any
grounds to consider as even approximately
harmful the same assessments in practice under
Article 245 of the CC of Ukraine:
− actions of persons which demonstrate a
negligent attitude even toward the act (for
example, throwing a cigarette butt that
caused a forest fire), and persons who,
although intentional about the act, are
careless about the consequences (usually it
is a small grass fire which grows into a large-
scale fire);
− actions of persons who, while guided by
various motives (revenge, concealment of
other illegal actions, etc.), intentionally
destroy flora not by careless handling of fire,
but by deliberate arson.
In order to demonstrate the above points more
clearly, let us turn to the materials of judicial
practice. We will refer to several court decisions
rendered under Art. 245 of the CC of Ukraine,
when actions were qualified under it:
1) Person-1, who, in order to collect straw,
went to his mother-in-law’s land plot, where,
having smoked a cigarette, negligently in the
form of criminal negligence, which was
expressed by throwing away a cigarette butt,
set fire to the stubble and part of the straw
on the land plot, as a result of which the fire
has spread in the direction of the nearby
agricultural land plot of 56 hectares
belonging to the private enterprise
“Zakhidnyi Buh”, with wheat plants on it.
The fire burned the stubble and part of the
straw on the land plot, as well as completely
destroyed the wheat plants on the said land
plot with a total area of 43.5 hectares (Case
No. 1317/1852/2012, 2012);
2) Person-2, who deliberately set fire to dry
grass at his place of residence, which started
a fire that spread from the territory of
Person-3’s farm to block 4 (section 4) of the
“Vyzhnytsia” enterprise, thus resulting in
the destruction of forest litter over an area
of 1.49 hectares and damage to 158 trees of
various species to the point of growth
cessation (Case No. 713/1215/22, 2022);
3) Person-3, who, while being near the
cemetery, on the basis of hostile relations
with employees of the State Enterprise
“Polissya Forestry”, decided to destroy
flora (forests) by fire. While realizing his
criminal intent, acting intentionally,
intending to destroy flora, realizing the
304
www.amazoniainvestiga.info ISSN 2322- 6307
unlawful and socially dangerous nature of
his actions, foreseeing harmful
consequences and consciously wishing for
such consequences to occur, Person-3 set
fire to dry wild grass on the side of the road.
As a result of the deliberate actions of
Person-3, the grass caught fire, and the fire
spread in the direction of the wind through
the dry grass cover to the forest area
corresponding to land allotments 12, 15, 17,
22, 23 of block No. 148 of the Dytiatkyi
Forestry, in particular, an uncontrolled
process of destruction and damage by fire of
flora in the forest area has started, during
which factors hazardous to wildlife and the
environment have occurred, harmful
chemical compounds have been released
into the atmosphere, and the fire has
damaged and destroyed forest vegetation,
the natural state of soil cover, and
microorganisms on a total area of 14
hectares (Case No. 366/2908/19, 2022).
Those court decisions (among many other) have
led to the question: is the degree of social danger
of the mentioned options of behavior the same
and such that does not require differentiation of
liability for their commission? In our opinion, the
negative answer to this question is more than
obvious.
The need to improve relevant provisions of
domestic criminal law is eloquently confirmed
by relevant foreign experience. Once again, we
have seen that parliamentarians of other
European countries take a unanimous position on
the need to differentiate liability for, on the one
hand, destruction or damage to forests (or flora in
general) resulting from careless handling of fire
or other sources of increased danger, and, on the
other hand, for the destruction or damage to flora
committed by arson alone, or by explosion or
other generally dangerous means.
At the same time, by differentiating liability for
destruction or damage to flora by arson and
careless handling of fire, parliamentarians of the
respective countries demonstrate different
attitudes toward criminality of such acts: some
believe that both elements should be material;
others believe that both acts are so dangerous that
they should be criminalized regardless of their
consequences; while legislators of a
conditionally third group of countries propose a
differentiated approach by criminalizing arson
regardless of its consequences, when careless
handling of fire is punishable only if it caused
damage.
After analyzing the above discussed options, we
are inclined to believe that the most acceptable is
the position of the third group of
parliamentarians, who, given the extremely high
risk of arson or other intentional publicly
dangerous acts, recognize such behavior as
criminal, regardless of the amount of damage
caused by it (formal structure). The latter, while
not affecting criminalization, is recognized as a
factor in the differentiation of criminal liability.
With regard to careless handling of fire, given the
objectively lower degree of public danger of such
acts, criminal liability for their commission is
provided only if certain consequences occur (Art.
352 of the Spanish Criminal Code, Articles 107–
108 of the Latvian Criminal Code). We consider
criminalization of any form of negligent
destruction or damage to forests (flora) by
legislators of certain states to be unjustified (part
1 of Art. 304 of the Criminal Code of Georgia).
Conclusion
Having conducted our comprehensive criminal
law analyses, we have grounds to conclude that
the improved version of Article 245 of the
Criminal Code of Ukraine should:
1) preserve liability for criminal actions against
any type of vegetation, not only those torts
related to forests;
2) within its framework, liability should be
regulated for:
a) encroachment not only on green areas
around settlements, along railways, but also
on any other green areas, including those not
located in appropriate places;
b) destruction of vegetation on the lands of any
category from among those provided for by
the Land Code of Ukraine (its Article 19).
In addition, we recommend that within the same
Art. 245 of the CC of Ukraine (or two separate
provisions) criminal liability for, on the one
hand, intentional destruction/damage of flora
committed by arson, and, on the other hand,
destruction/damage of flora resulting from
careless handling of fire or other sources of
increased danger should be differentiated.
Sanctions contained in such criminal prohibitions
should be differentiated as well.
Due to the volume limitations for this paper, it
was not possible to discuss and solve a number
of other pressing issues of criminal liability or the
destruction/damage of plant life within the scope
of the research. In particular, this related to the:
absence of Art. 245 of the Criminal Code of
Ukraine on the differentiation of criminal
Volume 13 - Issue 75
/ March 2024
305
http:// www.amazoniainvestiga.info ISSN 2322- 6307
liability depending on the consequences of the
relevant actions; assessment of the concept of
“other serious consequences” provided for in
Part 2, which leads to the absence of a unified
approach to its interpretation in practice;
imperfection of the sanctions provided for in the
criminal law under consideration, as well as
numerous defects inherent in the practice of
implementing punishments established within its
limits. In addition, it is worth recalling that a
Working Group on Criminal Law Reform has
been established in Ukraine, which has almost
completed its work on the creation of the draft of
the new Criminal Code of Ukraine.
Familiarization with this document has proved
that it proposed a fundamentally different
approach to the regulation of liability for the
destruction and damage (both intentional and
careless) of various plant life objects compared
to those provided for by the current Criminal
Code of Ukraine.
Therefore, we are convinced that analysis of the
relevant provisions of the projected criminal law,
as well as those marked by a few above
paragraphs of the unresolved criminal law issues
in this article, should become the object of future
scientific investigations (research) in this vital
area of legal regulation.
Acknowledgements
This research paper was written under the grant
project “Improving Effectiveness of Criminal
Law Protection of the Environment in Ukraine:
Theoretical and Applied Principles”, provided by
the National Research Fund of Ukraine (Grant
No. 0122U000803).
Bibliographic references
Begiashvili, К. (2023) The significance of
damage – a criminal act as part of the illegal
logging of trees and shrubs. Law and World,
9(28), 15-30. https://doi.org/10.36475/9.4.2
Berdnik, I. (2018). The main guidelines for
distinguishing certain crimes that encroach
on water resources from administrative
offenses. Comparative and analytical law, 2,
285-289
Campbell, F. (1988). Legal Protection of Plants
in the United States. Pace Environmental
Law Review. 1(6), 1-22.
https://doi.org/10.58948/0738-6206.1382
Case No. 366/2908/19. Crimes against the
environment; Destruction or damage to plant
life objects. Irpinsky Municipal Court of the
kyiv Region, 2022. Retrieved from
https://reyestr.court.gov.ua/Review/1059112
58
Case No. 713/1215/22. Crimes against the
environment; Destruction or damage to plant
life objects. Vyzhnytskyi District Court of the
Chernivtsi Region, 2022b. Retrieved from
https://reyestr.court.gov.ua/Review/1081780
30
Case No. 1317/1852/2012. Crimes against the
environment; Destruction or damage to plant
life objects. Radekhiv District Court of the
Lviv Region, 2012. Retrieved from
https://reyestr.court.gov.ua/Review/2859962
6
Code of Ukraine on Administrative offenses No.
8074-10, dated December 7, 1984. Retrieved
from:
https://zakon.rada.gov.ua/laws/show/80731-
10#Text
Cohen, M. (1992). Environmental Crime and
Punishment: Legal/Economic Theory and
Empirical Evidence on Enforcement of Federal
Environmental Statutes. The Journal of
Criminal Law and Criminology, 82(4),
1054-1108. https://doi.org/10.2307/1143716
Criminal Code of Albania No. 7491, dated April
29, 1991. Retrieved from:
https://sq.wikibooks.org/wiki/Kodi_Penal
Criminal Code of Austria dated January 23,
1974. Retrieved from:
https://acortar.link/YLtSfd
Criminal Code of Bulgaria No. 26, dated May 1,
1968. Retrieved from:
https://lex.bg/laws/ldoc/1589654529
Criminal Code of Denmark No. 976 dated
September 17, 2019. Retrieved from:
https://www.retsinformation.dk/eli/lta/2020/
1650
Criminal Code of Estonia, dated June 6, 2001.
Retrieved from:
https://www.riigiteataja.ee/akt/12312201401
6
Criminal Code of Georgia No. 2287-rs, dated
July 22, 1999. Retrieved from:
https://www.policinglaw.info/assets/downlo
ads/Criminal_Code_of_Georgia.pdf
Criminal Code of Germany, dated November 13,
1998. Retrieved from:
https://acortar.link/xOKmBx
Criminal Code of Italy No. 1398, dated October
19, 1930. Retrieved from:
https://www.brocardi.it/codice-penale/
Criminal Code of Latvia, dated June 17, 1998.
Retrieved from:
https://likumi.lv/doc.php?id=88966
Criminal Code of Norway, dated May 20, 2005.
Retrieved from:
306
www.amazoniainvestiga.info ISSN 2322- 6307
https://lovdata.no/dokument/NL/lov/2005-
05-20-28
Criminal Code of Portugal No. 48/95, dated
March 15, 1995. Retrieved from:
https://diariodarepublica.pt/dr/legislacao-
consolidada/decreto-lei/1995-34437675
Criminal Code of Slovakia No. 300/2005, dated
May 20, 2005. Retrieved from:
https://www.zakonypreludi.sk/zz/2005-
300#f3204359
Criminal Code of Slovenia No. 50/12, dated May
20, 2008. Retrieved from:
https://pisrs.si/pregledPredpisa?id=ZAKO50
50
Criminal Code of Spain No. 10/1995, dated
November 23, 1995. Retrieved from:
https://www.boe.es/buscar/act.php?id=BOE-
A-1995-25444
Criminal Code of Sweden No. 1962:700, dated
December 21, 1962. Retrieved from:
https://acortar.link/fsCjX7
Criminal Code of the Netherlands, dated March
3, 1881. Retrieved from:
https://wetten.overheid.nl/BWBR0001854/2
020-07-25
Criminal Code of the Republic of Moldova No.
985-XV, dated April 18, 2002. Retrieved
from: https://acortar.link/sUhrmO
Criminal Code of Ukraine No. 2341-III, dated
April 5, 2001. Retrieved from:
https://zakon.rada.gov.ua/laws/show/2341-
14/ed20230811#Text
Dudorov, O., Kamensky, D., Komarnytskyi, V.,
Komarnytskyi, M., & Movchan, R. (2014).
Crimes against the environment: criminal
law characteristics: a practical guide. RVV
LDUVS named after E. O. Didorenko,
Luhansk, Ukraine [in Ukrainian]
Dudorov, O., & Movchan, R. (2020). About
directions for improvement of the mechanism
of criminal law protection of the environment
(for a note to the developers of the new
Criminal Code of Ukraine). Bulletin of the
Criminal Law Association of Ukraine, 1,
92-125
Faure, M. (2017). The Revolution in
Environmental Criminal Law in Europe.
Virginia Environmental Law Journal, (35),
321-356. Retrieved from
http://hdl.handle.net/1765/106878
Gavrysh, S. (2002). Criminal environmental
protection in Ukraine: issues of theory,
application and development of criminal
legislation. Institute of Legislation of the
Verkhovna Rada of Ukraine, Kyiv, Ukraine.
Retrieved from https://acortar.link/kMa2Rs
Havronyuk, M. (2013). Scientific understanding
of legal doctrine and criminal legislation of
foreign countries. Bulletin of the Criminal
Law Association of Ukraine, 1, 298-347.
Retrieved from: https://acortar.link/XAdkya
Kamensky, D., Dudorov, O., Savchenko, A.,
Movchan, R., & Danylevska, Y. (2023).
Criminal liability for humanitarian aid
embezzlement during war: The case of
Ukraine: Responsabilidad penal por
malversación de ayuda humanitaria durante
la guerra: el caso de Ucrania. Cuestiones
Políticas, 41(77), 760-776.
https://doi.org/10.46398/cuestpol.4177.50
Kornyakova, T. (2011). Criminological
principles of prevention of crimes against the
environment by prosecutor’s offices:
monograph. In Yure, Kyiv, Ukraine.
Retrieved from: https://acortar.link/bpsPbU
Kovtun, O. (2010). Legal protection of territories
and objects of the nature reserve fund of
Ukraine: Academic manual. Precedent, Kyiv,
Ukraine [in Ukrainian]
Land Code of Ukraine No. 2768-III dated
October 21, 2001. Retrieved from:
https://zakon.rada.gov.ua/laws/show/2768-
14#Text
Lavorgna, A., Rutherford, C., Vaglica, V.,
Smith, M. J., & Sajeva, M. (2018). CITES,
wild plants, and opportunities for crime.
European Journal on Criminal Policy and
Research, 24, 269-288
Law of Ukraine No. 2697-VIII. On the basic
principles (strategy) of the state
environmental policy of Ukraine until 2030.,
Verkhovna Rada of Ukraine, 2019. Retrieved
from https:
https://zakon.rada.gov.ua/laws/show/2697-
19#Text
Lisova, T., & Sharapova, S. (2020). Legal issues
of protection of agricultural land in Ukraine
at the present stage. Amazonia Investiga,
9(27), 209-216.
https://doi.org/10.34069/AI/2020.27.03.22
Matviychuk, V. (2011). Theoretical and applied
problems of criminal law protection of the
natural environment: a monograph. National
Academy of Management, Kyiv, Ukraine.
Retrieved from:
https://nam.kyiv.ua/files/publications/978-
966-8406-46-1-monog.pdf
Matviychuk, V. (2016). The importance of
distinguishing crimes against the natural
environment from similar administrative and
legal torts. Legal science, 8, 43-56
Model Criminal Code for member states of the
Commonwealth of Independent States dated
February 17, 1996. Retrieved from:
https://continent-
online.com/Document/?doc_id=30074120#p
os=0;0
Volume 13 - Issue 75
/ March 2024
307
http:// www.amazoniainvestiga.info ISSN 2322- 6307
Movchan, R. (2021). Criminal liability for
crimes in the field of land relations:
legislation, doctrine, practice. monograph.
“Tvori” LLC, Vinnytsia, Ukraine. Retrieved
from:
https://jmonographs.donnu.edu.ua/article/vie
w/8559
Movchan, R. (2023a). Differentiation of criminal
liability for intentional and negligent
destruction or damage to objects of plant life:
foreign experience, national perspectives.
Electronic scientific publication “Analytical
and comparative jurisprudence”, 4, 352-357.
https://doi.org/10.24144/2788-
6018.2023.04.59
Movchan, R. (2023b) Criminal and
administrative responsibility for the
destruction or damage of objects of the plant
world: problems of demarcation. Scientific
and information bulletin of the Ivano-
Frankivsk University of Law named after
King Danylo Halytskyi. Law series, 16,
266-277. https://doi.org/10.33098/2078-
6670.2023.15.27.2.266-277
Movchan, R., Dudorov, O., Kamensky, D.,
Vozniuk, A., & Babanina, V. (2022).
Criminal liability for illegal mining: analysis
of legislative novelties. Scientific Bulletin of
National Hirnichoho University, 5, 116-121.
https://doi.org/10.33271/nvngu/2022-5/116
Movchan, R., Kamensky, D., Pysmenskyy, Y.,
Dudorov, O., & Prokofieva-Yanchylenko, D.
(2023). Protection of the environment under
the draft Criminal Code of Ukraine and the
European criminal law: a comparative study.
Amazonia Investiga, 12(64), 65-72.
https://doi.org/10.34069/AI/2023.64.04.6
Movchan, R., Vozniuk, A., Burak, M.,
Areshonkov, V., & Kamensky, D. (2021).
Criminal law counteraction to land pollution
in the EU countries: searching for the optimal
model. Amazonia Investiga, 10(42), 15-23.
https://doi.org/10.34069/AI/2021.42.06.2
Myroshnychenko, V., Kamensky, D.,
Lysenko, T., Makarenko, T., & Petiahina, I.
(2024).“Defense of Ukraine” degree program
for future school teachers: a new element of
ukrainian higher education. Revista Eduweb,
18(1), 190-203.
https://doi.org/10.46502/issn.1856-
7576/2024.18.01.14
Okuyucu Ergün, G. (2021). Environmental
Criminal Law in The European Union.
Ankara University Faculty of Law Journal,
70(3), 909-924.
Oliynychuk, R. (2021). Features of the
investigation of the destruction or damage of
plant world objects. Actual Problems of Law,
2, 171-175.
https://doi.org/10.35774/app2021.02.171
Turlova Yu. A. (2015). Problems of
criminalization of crimes against the
environment in Ukraine. National legal
journal: theory and practice, 2/1(12),
120-125. Retrieved from:
http://www.jurnaluljuridic.in.ua/archive/201
5/2/part_1/26.pdf