The thesis is devoted to research of criminal liability for the violation of equality of rights of citizens depending on their race, nationality, religious beliefs, disability and other features (Article 161 of the Criminal Code of Ukraine), and to the development of proposals for improving the existing criminal law and practice of its application. The theoretical and philosophical feasibility study of criminal liability for the stated crime is carried out, the constitutional principles of equality of rights and equality before the law are analyzed. It is studied that equality of rights and equality before the law are not identical concepts. Equality before the law, as a principle of criminal law, aims at ensuring the equal liability for all citizens to bear criminal responsibility for a completed offence, the type and volume of which is provided for in the criminal law. The equality of rights within the scope of the criminal law is considered as a significant social value, which acts as the most important object of the criminal protection.
In accordance with the methodological principles developed in the doctrine of criminal law, the author clarified the grounds for criminalizing the violation of equal rights of citizens depending on their race, nationality, religious beliefs, disability and other features, namely: social, criminological and normative ones.
The objective features of the crime provided by Article 161 of the Criminal Code of Ukraine were investigated, generic and specific object are determined. The direct object of crime, as a part of specific and generic object, it is proposed to consider social relations ensuring the equality of rights of man and citizen in specific areas of their life. The author analyzed the characteristics of the crime victim and concluded that it should be not only a “citizen”, but a “man” in the first instance. On this basis it is proposed to name the Article 161 of the Criminal Code of Ukraine and its disposition bring in compliance with the Constitutional Law, indicating there a “man” and a “citizen as the crime victim.
Were analyzed international standards in the field of human rights and the international experience in protecting citizens' equality, proposed to harmonize the provisions of Part 1 of Article 161 of the Criminal Code with the regulations of the European law. To indicate all forms of a criminal act (Part 1 of Article 161 of the Criminal Code), it is proposed to introduce a term “discrimination” used in the law as a generic concept for determination of various acts related to the violation of the equality of a man and citizen.
In the analysis of subjective parameters of violation of citizens’ equality based on their race, nationality, religious preferences, disability and other features (Part 1 of Article 161 of the Criminal Code), it was established that the latter is committed only with specific intent, that is, the subject is aware of the social danger of its act and wants to do it. The author has proved that, unlike the motive, the purpose is not a mandatory feature of the subjective aspect of the crime provided for in Article 161 of the Criminal Code, and does not affect its qualification. Special attention is paid to the study of characteristics of the offender.
The paper also deals with qualifying circumstances of this crime. The author maintains the position on the expediency of specifying the type of physical violence that may be used in the commission of this crime, considering that the latter should be such that is not dangerous to the victim’s life or health. It also expresses the opinion that for these components of crime a qualifying circumstance “organized group of persons”, provided for by Part 3 of Article 161 of the Criminal Code, is not socially conditioned, does not apply in practice in qualifying such crimes, and therefore should be excluded from the content of the law as not corresponding to the grounds of criminalization.
On the basis of the study a number of proposals for improving the current criminal law of Ukraine (in particular, a new version of Article 161 of the Criminal Code of Ukraine) and practices for its application were formulated.
