Tsyb I. The Concept of Desecration in Ukrainian Criminal Law

The dissertation, by analysing the theoretical provisions of criminal law science and legal practice of application of criminal law provisions with desecration as a feature, solves the scientific and practical task of identifying possible ways and proposals for improvement of those criminal law provisions with insult as a feature, as well as further development and improvement of the existing provisions of the theory of criminal law and the law on criminal liability. In particular, the author substantiates the need to consolidate criminal liability for offences involving insult under martial law. The author concludes that it is necessary to criminalise the desecration of the official symbols of the European Union, the United Nations and NATO. The author makes a reasonable proposal to criminalise the desecration of a place of remembrance of a deceased person (a place where the body/items of a deceased person or his/her ashes are not present, but which is important for people who commemorate such a person). The author improves the provision that the concept of "defilement" in the wording of Article 297 of the Criminal Code of Ukraine is more appropriate, since this concept covers both actions characterised by the concept of "indignation" according to the dictionaries of the Ukrainian language and actions constituting the objective side of the criminal offence under Article 297 of the Criminal Code of Ukraine and actions established by the Law of Ukraine "On Burial and Funeral Business". The author has improved the statement that the concept of "contempt/disregard" is more appropriate in the title and disposition of the criminal offence under Article 338 of the CC of Ukraine. The concept of "contempt" is the opposite in meaning to the concept of "respect". The Constitution of Ukraine establishes the obligation of citizens to honour the state symbols of Ukraine, i.e. to respect them. Under these circumstances, it would be appropriate to use the same root word "contempt" in the title and wording of Article 338 of the Criminal Code of Ukraine, a criminal law provision that establishes liability for failure to fulfil this obligation. The author develops the provisions on the necessity of legal regulation of the procedure of using the state symbols of Ukraine. It is noted that a considerable number of scientific monographs have been devoted to the issues of criminal offences characterised by "outrage". At the same time, the issue of "outrage" in the criminal law of Ukraine is still poorly understood, since most scholars either did not disclose the concept of "outrage" at all or used the concept contained in dictionaries of the Ukrainian language or in scientific and practical comments. The author notes that the definitions of the concept of "indignation" proposed in dictionaries do not quite successfully correlate with the acts that form the objective side of criminal offences characterised by "indignation". The concept of "outrage" has a considerable number of synonyms, but none of them is able to fully cover the actions that are included in the concept of "outrage". The concept of "outrage" is also synonymous with the concept of "zealotry". This term "zelzhivost" has been used to describe a significant number of acts that violate a person's honour and dignity. However, such acts do not in any way cover the acts included in the modern concept of "insult". Thus, the concept of "zelzhivost", as well as its derived synonym "insult", is not entirely appropriate for use in criminal offences under Articles 297 and 338 of the Criminal Code of Ukraine. The author notes that the criminal offence of "insult" was established for the first time in Article 22 of Chapter 25 of the Law on the Rights of Minorities. It establishes criminal liability for stealing from churches or other sacred places, as well as for digging up graves and stealing from the dead. The original text of the document uses the term "prouganiye", which in modern Ukrainian means "outrage". It has been established that the first criminal law provision in the modern sense which established criminal liability for the desecration of a grave was Article 256 of Chapter 4, Section 2 of the Code of Criminal and Correctional Punishments. The first criminal law provision in the modern sense establishing criminal liability for desecration of state symbols was Article 87 of the Criminal Code of the Ukrainian SSR of 1922.