The dissertation is devoted to the study of the problem of differentiation of criminal liability of participants in organized forms of complicity.
Section 1 examines the theoretical foundations of differentiation of criminal liability of participants in organized forms of complicity. Differentiation and individualization are called independent but interdependent principles of criminal law. The author characterizes the features of these principles and establishes the distinctive properties between them, which include: 1) the level of activity of the authorized subject: the level of rulemaking (differentiation), the level of law application (individualization); 2) the subject of implementation: the legislator (differentiation), the court (individualization); 3) the final legal document: the text of the Criminal Code (differentiation), the final court decision (individualization); 4) the result: differentiating rules (for differentiation), the choice of the sentence for the convicted person (for individualization); 5) criteria: the nature of public danger, the typical degree of public danger, the nature of the perpetrator (differentiation criteria), the severity of the criminal offense committed, the identity of the perpetrator (basic general), circumstances mitigating and aggravating punishment (auxiliary general), the nature and degree of participation of each of the accomplices in the commission of a criminal offense (special) (individualization criteria). The author distinguishes between the levels of individualization, namely, ordinary (within the sanction of the article) and extraordinary (beyond the sanction of the article, taking into account the provisions of the General Part of the Criminal Code). In terms of time, ordinary individualization precedes extraordinary individualization.
The author shows that the States which have ratified the Palermo Convention have distanced themselves from the concept of a criminal organization as envisaged in Framework Decision 2008/841/JHA by criminalizing the establishment and operation of an organized criminal group. Some countries have introduced a national flavor to the understanding of organized forms, due to historical traditions that have influenced the existence of national organized forms of complicity, such as a mafia-type criminal organization (Italy), «thieves in law», «underworld» (Georgia). The EU member states differentiate criminal liability for organized forms of crime to a greater extent in the articles of the Special Part, while the post-Soviet states – in both the General and Special Parts of their Codes.
The author supports the approach according to which group (a group of persons and a group of persons by prior conspiracy) and organized (an organized group and a criminal organization) forms of complicity (forms generalis) should be distinguished by the degree of cohesion. The difference between forms generis and forms generalis, apart from the location of the relevant provisions, is that the legislator uses the features of forms generalis when constructing forms generis complicity. If the article of the Special Part of the Criminal Code describes complicity in the form of generalized forms using terminology which makes it possible to identify its belonging to one of the forms of complicity in the form of generalized forms, then this form of generalized forms and its features should be used to characterize the relevant form of generalized forms.
The author concludes that a gang (Article 257 of the Criminal Code), given the lack of a clear definition by the legislator of its belonging to any organized form generalis, may take the form of both an organized group and a criminal organization, and a criminal association (Parts 4, 5 of Article 255 of the Criminal Code) may take the form of a criminal organization. The author concludes that a criminal association is not an independent form of complicity.
Section 2 is devoted to the differentiation of criminal liability of participants of organized forms of complicity in the articles of the General Part of the Criminal Code of Ukraine. It is established that stability is a universal feature inherent in organized forms of complicity in general, and therefore cannot have a normative differentiating value. The author proposes to provide for such a differentiating feature of a criminal organization as structuredness, which is latent in the current Criminal Code. The author characterizes the structure of a criminal organization which consists of individual elements (members of the organization and/or its structural parts) which have a functional purpose and dialectically interact with other elements of the criminal organization structure, forming different horizontal (linear) and vertical (hierarchical) levels of structure.
