Kovalyk Y. Restrictive measures in criminal law of Ukraine

The thesis is a complex scholarly research of restrictive measures in the criminal law of Ukraine based on which well-substantiated suggestions and recommendations on improving the provisions on restrictive measures in the Criminal Code of Ukraine (hereinafter referred to as CC of Ukraine) and their implementation have been elaborated. The thesis offers an analysis of theoretical and methodological principles of researching the restrictive measures. The author has analyzed the available research related to applying one or a few restrictive measures to a person. The historical and legal analysis of restrictive measures in the criminal law of Ukraine has revealed their origins. The author was able to trace out the approaches to and reception of shaping the entire system of criminal law measures in different periods of Ukrainian statehood. The analysis of foreign experience in regulating criminal law measures made it possible to confirm that despite differences in law system types characteristic of foreign countries, their legislation contains legal phenomena which have common features with restrictive measures stipulated in the CC of Ukraine. It has been concluded that by their legal nature restrictive measures stipulated by the CC of Ukraine are qualified as security measures. This approach is supported by the specific goal of restrictive measures, namely to protect the victim from the culprit and prevent further unlawful acts against such a person. The author offers own definition of the crime related to domestic violence with reference to two constitutive features, namely the form (which must be characteristic of domestic violence, such as physical, sexual, psychological or economical) and identified circle of persons. The main conception of the thesis is substantiation of possible expansion of application of criminal law restrictive measures also to other kinds of criminal offence which are not related to domestic violence. It has been demonstrated that the potential of criminal law restrictive measures is underestimated, as they are capable of fulfilling the objectives of the CC of Ukraine and attaining the established goals also in the case of committing any criminal offence where the victim’s safety must be ensured. The thesis offers an analysis of conditions of imposing one or a few restrictive measures on a person. The thesis offers a differentiation of periods of restrictive measure application in view of the concept of criminal offence and its types as stipulated in the CC of Ukraine. It is necessary, however, to refuse from indicating the lower age limit (eighteen years) for the person to whom one or a few restrictive measures are applied. There is a necessity to modernize the types of restrictive measures stipulated in Chapter 1 91-1 of the CC of Ukraine. The current research made it possible to formulate the concept of criminal law restrictive measures. Thus, criminal law restrictive measures are binding measures of criminal law nature consisting in restricting the fulfilment of certain rights and freedoms of the person who has committed a criminal offence in order to protect the victim and prevent any further unlawful acts against such a person. There is a lack of appropriate legal regulation to control the application of restrictive measures stipulated by Article 91-1 of the CC of Ukraine. So far, the provisions of Chapter 4 of Article 91-1 of the CC of Ukraine on the controlling agents are merely declarative. The issue of establishing the criminal responsibility for deliberate non-compliance with restrictive measures stipulated by the CC of Ukraine has been analyzed.