The dissertation is a completed scientific study covering problematic issues of applying measures of criminal law influence for illegal abortion or sterilization. Based on the results of the scientific analysis carried out by the author, conclusions were formulated and recommendations were made aimed at improving provisions of domestic criminal legislation and law enforcement practice regarding the prevention of criminal offenses described in Art. 134 of the Criminal Code of Ukraine (hereinafter – Criminal Code).
The first chapter of the work covers general principles and prerequisites for the investigation of criminal liability for illegal abortion or sterilization. In particular, the author’s review of the state of scientific development of the issue of liability for the crime provided for by Art. 134 of the Criminal Code has been done. An increase in scientific attention to this issue has been noted, which is primarily due to the ratification of the Istanbul Convention by our country, the European integration aspirations of Ukraine, as well as the obvious strengthening of the comparative component both in the legislative discourse and in the scientific research in the field of criminal law.
The relevant provisions of The Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) were studied and the results of the implementation of this international legal act into the Ukrainian criminal law were critically analyzed. One of the novelties of the Criminal Code of Ukraine, related to the signing of the Istanbul Convention by our country, was the introduction of new categories of crimes within the scope of Art. 134 of the Criminal Code: in part 2 – coercion to making abortion without victim’s voluntary consent; in part 4 – forcing to undergo sterilization without victim’s voluntary consent.
In the second chapter of the dissertation, analysis of the components of the crime of “illegal abortion or sterilization” was carried out, as well as some issues of the criminal law qualification of the acts described in Art. 134 of the Criminal Code.
The substance of the element of public danger of illegal abortion or sterilization was revealed – it was determined that abortion has a negative effect on the human body not only biologically, mechanically or psychologically, but can also cause problems with subsequent pregnancies or even lead to a woman’s death.
Based on the results of the author’s comparison of the provisions of Art. 134 of the Criminal Code and Art. Art. 38 and 39 of the Istanbul Convention, taking into account the systematic approach to the interpretation of legal acts, attention was drawn to what the Ukrainian legislator described in Part 2 and Part 4 of Art. 134 of the Criminal Code, respectively, forcing an abortion/sterilization without victim’s voluntary consent. This has been recognized as a flawed approach. Based on the comments made by the degree seeker, two alternative ways of optimizing the wording of Part 2 and Part 4 of Art. 134 of the Criminal Code, which will contribute to the improvement of the relevant provisions of criminal law and the practice of their application, have been proposed.
In the last chapter of the dissertation study, measures of criminal law character on persons who have committed illegal abortion and sterilization have been analyzed.
In particular, dissertation proposes to optimize sanctions of 1-4 Art. 134 of the Criminal Code by including an indication of the minimum amount of the main types of punishments as follows: 1) in Part 2, restriction of liberty for up to three years or deprivation of liberty for up to two years; 2) in Part 3, restriction of liberty for a period of three to five years or deprivation of liberty for two to five years; 3) in Part 4, restriction of liberty for a term of up to three years or deprivation of liberty for up to two years; 4) in Part 5, restriction of liberty for a period of two to five years or deprivation of liberty for two to five years.
Subsection 3.2 of the work carefully analyzes the content and enforcement potential of special confiscation as a separate measure of a criminal law character. It was determined that Art. 134 of the Criminal Code is not included the closed list of criminal offenses for which special confiscation may be applied in accordance with Part 1 of Art. 96-1 of the Criminal Code. At the same time, it was emphasized that all (except for the fourth) parts of Art. 134 of the Criminal Code describe such basic type of punishment as deprivation of liberty, which, on the basis of part 1 of Art. 96-1 of the Criminal Code, formally gives a court right to apply special confiscation for the acts described in those parts. Based on the results of working out limited cases based on Art. 134 of the Criminal Code no reference to the application of special confiscation to a person guilty of an illegal abortion has been established.
