The thesis is the first comprehensive research of criminal liability for obstructing the legitimate activities of the Armed Forces of Ukraine and other military formations. It is carried out using the cognitive theory provisions, with study, analysis, and generalization of historical and contemporary achievements of criminal law, international and foreign experience, and the establishment of the crime features, and punishment analysis under Art. 114-1 of the Criminal Code of Ukraine, as well as with the development of scientifically based improvements for Ukrainian criminal legislation and investigative and court practice.
The genesis and criminal liability for obstructing the legitimate activity of military formations has been studied. The main legislation trends on criminal obstructing the activities of military formations at different historical stages have been determined. International standards of human rights in the activities of legal military formations have been determined and, it has been concluded that the provisions of international legal documents emphasise the need of keeping to principal international standards of human rights in the implementation of all the security and intelligence services activities, in particular ‒ the military formations’ legitimate activities. Two international legal criteria have been emphasized: enforcement and restrictive ones.
Foreign experience in combating the criminal obstructing the military formations’ activities, stating the absence of unified approaches to criminal liability in different countries has been considered. Based on the study and analysis of the military formations’ activity regulation, the «military formations», «legitimate activity of military formations» concepts and types of military formations have been established.
Objects of criminal obstructing the legitimate activity of military formations during a special period (generic, species, direct) have been determined. The social relations ‒ basis of national security of Ukraine in the part of military security during a special period, have been determined as the immediate object of obstructing the legitimate activities of military formations (p. 1 Art. 114-1 of the Criminal Code) and the main immediate crime object under Part 2 of that article. Attention is drawn to the fact that Art. 114-1 of the Criminal code protects the legitimate activities of military formations during a particular period as of a single and integral system element, ensuring the principles of the National Security of Ukraine and such period. It has become the theoretical basis for differentiation of crimes under Art. 114-1 of the Criminal Code, and the war crimes.
Signs of the objective side of obstructing the legitimate activities of military formations without aggravating circumstances have been determined: socially dangerous action; time, place (in the case of martial law) and the crime situation. It has been grounded that the special period is a combined (complex) characteristic of the criminal objective aspect – this is time, the situation and, in the case of martial law, ‒ the place of crime. It is emphasised that the special period: characterizes the special organization and military units staffing procedure as at war time; it covers the period of (a) mobilization (other than target), (b) imposing martial law, (c) the partially reconstructed period after the military actions are over; the special period defines the limits of criminal liability.
This paper contains the definition of severe consequences (p. 2, Art. 114-1 of the Criminal Code), including the death of one or more persons, incitement to suicide, infliction of grave bodily injuries to at least one person, or infliction of moderate bodily injuries to two or more persons, property damage in big or especially big amounts, etc.
The signs of the special crime subject, under Art. 114-1 of the Criminal Code, have been determined with an additional restrictive feature - such a person is not a military person, is not liable for service or not a part-time serviceman during training.
A mental state of criminal obstructing the legitimate activities of the Armed Forces of Ukraine and other military formations has been analysed. It is proved to be characterized by intentional guilt (direct intent – p.1 of Art. 114-1 of the Criminal Code) and mutual contributory negligence (in the form of intentional (direct intent) personal attitude to the act and reckless to the consequences (criminal negligence or criminal presumption) – p.2 of this article).
The scientific and legal analysis of the punishment of the crime under Art. 114-1 of the Criminal Code has grounded improvement of the sanction version. A new version of this article with another location, selected considering the crime generic object, has been represented.
