«Basics of Medical LAW» Course
LESSON № 4 Moral rights in health care.
(Practical – 6 hours)
1. The right to life and health activities.
2. The emergence of the right to life.
3. Legal problems of abortion.
4. Euthanasia.
1. The right to life and health activities.
The rights and freedoms of man and citizen, their genesis and implementation is one of the eternal problems of mankind. These issues are crucial for many thousands of years and remain at the forefront of issues of concern to scholars of our time. In a democratic
The most important and most valuable among individual rights and freedoms is the right to life. Life is a basic good and one of the highest social values of human deprivation which is irreversible and means the demise of the individual. The right to life is a natural and inalienable. No respect for this right all other rights have value and meaning. Therefore, the right to life is at the maximum legal protection, based on the Constitution. The right to life includes the totality of human rights in general, but does not coincide completely with any of them in particular. The right to life means not only giving up the war, the prohibition of slaughter and death, but also a decent existence conditions that are necessary for the full development of man. Unlike other rights, the right to life is a critical prerequisite foundation of human dignity, guaranteeing the integrity of the physical existence of man, because life is regarded as one and indivisible good, which is not subject to limitation.
The right to life provided a number of constitutional guarantees. Among them, one of the main guarantees of the right to life is the health system and its continuous development, the progress of medical science, improve medical security system improvement of sanitary and epidemiological welfare. When it comes to health care, it is necessary to consider the right to health is not just living as maintaining physiological human existence, and the focus should be on quality of life, that is internal (psychological) and external (physical) human condition, how fully a person feels in society, the extent to which it is socially active, as far as society is adapted to the perception of people, such as physical or mental disabilities. State authorities and local governments are required to take comprehensive measures to improve quality of life. It is important to remember that even a person dependent on hardware that supports its physiological existence, has the right to life and the provision of health and social care at the highest level reached by society. Human life – a physiological and psychological functioning of the organism as a whole. Man has the right to life and with persistent violations of these functions (paralysis, mental disorder), and in these cases it is life in legal terms can’t be considered less valuable than the life of any other person.
At the same time one of the key aspects of the legal status of a person can be considered a human right to health care. Within the health law grounded approach of the right to life and health care.
At the beginning of the XXI century enforcement of fundamental rights and freedoms has become an integral part of civilized society. Today it is evident that obtaining medical care – one of the aspects of the right to life.
The universality of this law and its natural character fixed in the international legal instruments that are recognized by all civilized countries of the world (e.g.,- Art. From the Universal Declaration of Human Rights, art. 6 of the International Covenant on Civil and Political Rights, art. 2-1 of the Convention on Protection of Human Rights and Fundamental Freedoms, etc.). For the first time legally right to life was enshrined in the Declaration of Independence in 1776 p., When he was proclaimed “the equality of all people, the right to life, liberty, personal happiness.” Further, given the different national characteristics, it is considered to be the rule of law in all major countries of the world. The requirements of international instruments are fully reflected in the Constitution of Ukraine, particularly in the Preamble of the Constitution of Ukraine declares that the state cares about the rights and freedoms of man and worthy conditions of life and in art. Since the Constitution stipulates that a person’s life and health, honor and dignity, inviolability and security are recognized in
Medical assistance is often in conflict with the right to life. This is the practice of organ transplantation and human tissue (when the donor – living man – removed a pair of organs for later transplantation, often putting his life a great danger) of a transaction cancer patients (as a result of surgery the patient dies, but without its of it could have some time to live) and a number of other health measures.
The right to life should be seen as a set of elements (features):
1) the right to preserve life;
2) The right to security of person;
3) the right to require the State to implement measures to support life;
4) the right to dispose of their lives;
5) The right to health and medical care.
The need to study the value of the right to life and medical practice dictated the following circumstances:
– ¾ problem saving lives in many ways related to medical activities, as they ofteeed medical assistance;
– ¾ rapid development of new medical technologies (Transplantation, genetics, cloning, resuscitation, etc.). Often come in conflict with the provision of the right to life;
– ¾ transaction abortion (abortion) raise the question of priority of life and health of mother and unborn human life;
– ¾ difficult social and economic upheavals of recent decades, which also affected the health sector, resulted in different access to care under varying degrees of protection of the right to life;
– ¾ euthanasia as a manifestation of “non-core” environmental health effects on human life. The validity of the term “right to die”;
– ¾ suicide, which is one of the options available independent life, and so on.
Bold self-direction to ensure the right to life – the right to health care – is caused by many factors, the main ones are:
– ¾ differences in the legal nature of the right to health and the right to medical care;
– ¾ multiplicity of manifestations of the right to health care;
– ¾ functioning in our country of various health systems and others.
The right to health care as a factor of the right to life – it is an opportunity, if necessary (disease, pathological condition, etc.) use the resources of the health care system that is to be assisted by medical staff. In this case, the fact of receiving medical care will be evidence of subjective rights that needs medical attention.
2. The emergence of the right to life.
The problem of determining the beginning of human life, i.e. the time after which she gets right to life and his guard, very important for many reasons, including those related to medical activities. The emergence of the right to life is not only a theoretical value of solving this problem depends on the capacity issue, the definition of the legal nature of abortion and others. Comprehensive analysis of the legal and medical literature suggests three approaches to determining the beginning of human life, according to which the right to life of a person occurs:
1. With the birth.
2. From the moment of conception.
Justification for the first position (the right to life arises from birth) is that:
1. Article 269 of the Civil Code of Ukraine stipulates that moral rights every individual from birth or by law.
2. Before birth, at different stage of fetal development, one part of the mother in the womb which it is located.
3. The subject of the right to life, as well as other rights can only be born a man, since the implementation of rights and obligations can only really existing, born a man.
Next view – the moment of conception as equivalent to the beginning of human life and, therefore, the beginning of the right to life. The main arguments in defense of this position, we note the following:
1. Religious culture that reflects respect for human life from the moment of conception, hence the condemnation of abortion, regardless of gestational age.
2. Regulations containing provisions which indirectly indicate the presence of certain rights being conceived – the future of man.
Civil Code of
The preamble of the Declaration of Children’s Rights 1959 states that “a child because of her physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth …“. There is a view that the embryo is a living creature and is protected by moral norms and the law, since his appearance in the so-called primary strips (embryo nervous system), approximately 14 days after conception. Other researchers involved in the study of issues related to the right to life, supporting the position of the origin of the human rights in the prenatal condition and other terms referred to in the early life of the fetus. This refers to the first heartbeat (4 weeks), the registration of electrophysiological brain activity (6 weeks), the response to painful stimuli, the formation of organs and systems of medical criteria , live birth and so on.
Ministry of Education and Science of Ukraine “On Approval of Regulations on prenatal period, life birth and stillbirth criteria and there registration ” from 29.03.2006, № 179 determines that the live birth – is the expulsion or extraction from the mother of the fetus, which, after the expulsion / removal (regardless of the duration of pregnancy, whether the umbilical cord was cut or placental separation happened) breathes or has any other evidence of life such as heartbeat, pulsation of the umbilical cord, certain movements of skeletal muscles. The fruit is a product of conception in utero, since the full 12 weeks of gestation (84 days from the first day of the last normal menstrual period) to the expulsion / exclusion from the mother (Section 1.4).
According to Section 2.5 How to understand live births during newborn baby, born or removed from the mother after a full 22 weeks of gestation (154 days from the first day of the last normal menstrual period). According to the Criteria perinatal period life birth and stillbirth (Section 2) so that he was born alive, have a newborn, which is available at least one of the following conditions:
– ¾ breathing;
– ¾ heartbeat;
– ¾ pulsation of the umbilical cord vessels;
– ¾ movements of skeletal muscles.
In terms of modern medical law, including formal legal grounds, is the most appropriate position for which, under existing provisions of the law, of the right to life (along with other fundamental rights and freedoms) will be associated with the birth, as this right, like any other law, there can be only actually existing person. Knowledge persons who study health law arguments in favor of other points of view (of the right to life from the moment of conception, in different periods of fetal development) necessary for the formation of the whole picture, and for adequate perception of all phenomena, which to some extent concerning this problem (abortion, euthanasia, etc.).. Prevention is the illegal trafficking of fetal tissue, and the inadmissibility of the use of the female body as an assembly line for the production of embryos should be achieved through a system of legal guarantees, rather than legislative change and fixing the beginning of the human right to life. It is important to note that these challenges are in the area of social activity state, which also includes financial, medical care young families, to enhance motivation for the conception and birth of children.
3. Legal problems of abortion.
Revealing the relationship between law and medicine in the broader context, it is worth noting that the issue of the legality of abortion (abortion). The problem affects the interests of both abortion and the fate of at least two people – a woman who decided to terminate the pregnancy, and embryo (fetus) that is in her womb.
Statistical data show that a significant number of abortions made in
First step is to decide on terminology. When abortion understand any abortion. To highlight the value of the right to life and health care are just curious abortion that is performed by the woman’s request.
National legislation abortion question regulated in Part 6. 281 of the Civil Code of Ukraine and in art. 50 Basic Laws of Ukraine on Health, which provides that abortion can be carried out at the request of women during pregnancy for a period not exceeding 12 weeks. In cases prescribed by law, an abortion can be performed during pregnancy from 12 to 22 weeks. For illegal abortion occurs criminal liability under Art. 134 of the Criminal Code of Ukraine.
Operation abortion should be safe for pregnant women. Unsafe abortion – a procedure interrupt an unwanted pregnancy specialist who does not possess the necessary skills or in an environment that does not meet the medical standards.
Detailing the legal provisions on abortion Instruction establishes that the pregnancy to 12 weeks abortion is informed by the woman’s request. The patients undergoing this operation according to guidelines have to receive pre-abortion and post-abortion counselling with information about abortion methods, there possible effects on women’s health. Handouts with above mentioned information supposed to be given tu the patients prior to discharge. Conducting abortion in patients under 14 years old or incapacitated person made at the request of their legal representatives, and the patient who has reached 14 years, made with its consent (Article 284 of the Civil Coh).
Respect for women cannot treat her as a new generation reproduction tool. In this sense it is unreasonable to decline abortion procedure option. It is advisable to create legal regulation of abortion on the following principles:
1. respect for women’s rights to manage the situation with regard to the presence of pregnancy;
2. creating conditions for the prevention of criminal artificial interruption of pregnancy;
3. declaration and implementation of the state policy aimed at reducing the number of abortions as a means of birth control.
4. Euthanasia.
Currently attention of lawyers, doctors, philosophers, members of other professions attracted issue of euthanasia (from the Greek. “Ei” – “light, blessed” and “thanatos” – “death”). Euthanasia is a deliberate act or omission of medical workers who carried them if writing request a patient who is in a state where aware of the importance of their actions and can control them, subject to the statutory conditions for termination of his physical, psychological and mental suffering As a result of implemented right to a dignified death.
The term proposed in the XVI century. English philosopher Francis Bacon, who has said: “The duty of a doctor is not only to restore health, but in fact to relieve pain and suffering, caused by disease …“. It is worth mentioning scientific field that develops today – legal thanatology. A. Starovoitova proposes to define “legal thanatology” as a field of legal knowledge that studies the determination of death, human death, euthanasia, legal transplantation of organs and tissues of humans and other issues directly related to somatic human rights. Increased interest in euthanasia explained as medicine advances, allowing long struggle for life, and the priority right to life, which is defined as the freedom to choose, including to extend life.
Ukrainian legislation, in particular in the Fundamentals of Legislation on Health (part of Art. 52) during euthanasia understand deliberately accelerating death or killing of the terminally ill to end their suffering. The Civil Code of Ukraine contains the prohibition to satisfy the request of the individual to terminate his or her life (Part 4 of Art. 281). Fundamentals of RF legislation on health care in art. 45 (“Prohibition euthanasia”) provides that the medical staff is forbidden to carry out euthanasia, that meet the request of a patient to speed up his death by any means or actions, including termination of artificial life-support measures. According to the Declaration on Euthanasia of 1987roku euthanasia is an act of deliberate interruption of the patient’s life, even made at the request of the patient or at the request of his relatives, is unethical. This does not relieve the physician of the patient’s desire to take into account that the process of dying naturally occurred in the final stages of treatment. The Lisbon declaration on the rights of the patient from 1981 proclaims the right of the patient to die with dignity (Section “A”).
In the scientific literature and various species classification euthanasia. In particular, it is divided into:
1. “Euthanasia”, “voluntary euthanasia” and “involuntary euthanasia”;
2. “Active” and “passive”;
3. “Positive” and “negative”;
4. “Method of deferred pen” and “filled syringe method”;
5. “Passive euthanasia” and “active euthanasia” and so on.
In particular, active euthanasia – is of any action, the introduction of drugs that accelerate death. Public popularity became an American pathologist J. Kevorkian that for quite some time has publicly active euthanasia seriously ill people who are confronted with such a request.
In 1989 he built his own device, so-called. Suicide car – Mercitron, through which terminally ill and suffering patients could finish most suicide. The device allowed the flow of drugs into the bloodstream, which stopped the heart and thereby stop the suffering of the patient. June 4, 1990 the first patient and the patient’s disease Alzheimer’s committed life through device doctor Kevorkian. Ideas and Practice euthanasia received considerable publicity in American society. In 1991, Michigan took his license to practice Medical doctor and prohibited work. Despite the ban, continued to help seriously ill patients to finish life, not as a doctor but as a private person.
For his efforts against it repeatedly violated the criminal case, but each time it justified. Thanks to the popularity of its services among patients and some support among the general population euthanasia ideas in American society began a dialogue on the feasibility and legal consequences of the expiry of the voluntary life. November 23, 1998 live tv Kevorkian proposed videotape of September 17 of that year, which showed voluntarily ended the life of a seriously ill patients. The film itself has Kevorkian lethal injection drugs to the patient that he has been unable to do so and reiterated his desire to die. Video Kevorkian and actions were regarded as murder against him was violated another criminal case.
This time the charges against doctor Kevorkian was pretty serious as live television, he documented that he ended his life seriously ill patients. During the trial the doctor stated that the patient was suffering from amyotrophic sclerosis and in the last stages of the disease itself was already unable to finish life. He said he helped seriously ill person to finish life for reasons of humanity and compassion. Nevertheless, the court found him guilty of murder and sentenced to 25 years in prison. After several unsuccessful appeals, he served eight years in prison before the governor of Michigan mercy on him due to the poor health and old age and released from prison June 1, 2007 release was the ban Terms assist in suicide and Kevorkian will not help patients. In 2008 he ran for Congress as senator from the state of Michigan, as an independent candidate, but was defeated. In 2011 he died of a pulmonary thrombosis caused by complications from liver cancer.
Passive euthanasia – is a non-use tools and non-medical manipulations that would support a lifetime of seriously ill patients. For passive euthanasia is the view that it is permissible even in the Ukrainian legislation. It’s about art. 43 Basic Laws of Ukraine on Health, which proclaims the right of patients to refuse medical intervention.
In addition, euthanasia can be classified as follows: the criterion method of implementing euthanasia is divided into active (positive or “filled syringe method”) is applied to terminally ill special tools or other actions that result in a quick and painless death and passive ( negative or “deferred syringe method”), which means giving up activities that contribute to the maintenance of life, that is aimed at stopping the continuation of life care, which accelerates the onset of natural death.
In another criterion – the subject will – share of voluntary euthanasia, that is applied to terminally ill medical or other means, resulting in mild and peaceful death at the request of a patient who is aware of their actions and can manage them and forced, which means causing Light’s death through appropriate means and action terminally ill, but the decision of family members, legal representatives or public institutions.
In fact, considering the human right to euthanasia, we can talk about human right to die.
So, given all of the above, combined with features of socio-economic and legal status of human and civil rights in Ukraine, the legalization of euthanasia is not sufficiently justified. It should be including the target position of the Hippocratic Oath, which contains the following lines: “I do not give anyone a deadly product, which I asked and did not specify a path for this plan.” A large number of false diagnoses, determine the difficulties really hopeless condition of the patient, the true prescription as guardian of life and health – these and several other reasons to justify the inability of the law on euthanasia. Birth, and her departure from life – the natural biological processes. Lodge anyone the right to accelerate the death of another person is unacceptable. Any other approach redefine the health care as a means of ensuring the right to die, which is unacceptable as the lack of a legal right, and through the State’s position, according to which medicine to help preserve and enhance human life and health.
Today’s question about the possibility of euthanasia remains open. In most countries in the world euthanasia or by law, or prohibited it. The very first country to recognize euthanasia were the Netherlands.
Also, euthanasia was legalized in Belgium in
In Finland and Sweden, passive euthanasia is not considered illegal, but the basis for its application is a free and conscious will of the patient, even with similar requests from immediate family recognized legally invalid.
The world’s first law “On the human right to die” was adopted in
In Parliament addressed the issue of euthanasia, but resentment of the clergy are not allowed to establish them. Today, euthanasia is illegal in Ukraine. This is stated in article 52 of “Basic Laws of Ukraine on Health Care.”
So the question of euthanasia is perceived ambiguously. On the one hand the use of euthanasia, ensure the human right to self-order their lives and humanity, which cannot tolerate the intolerable suffering high positive assessment deserves respect for the will of man who wants his departure from life to remove the moral and financial burden with loved ones.
On the other hand euthanasia paralyzed to scientific progress, because if euthanasia is permitted by the legislator, the medical staff will not have to look for new methods to relieve the suffering of patients, scientists, biologists and geneticists have to invent new ways to fight cancer, AIDS and other serious illnesses.
Legalizing euthanasia would lead to unacceptable pressure on some disabled people, the elderly and terminally ill people who wish to live more, at the same time do not want to be “useless and a burden” to society.
It is difficult to establish a voluntary decision. And even in the case where the voluntary consent of the patient is clear, there is always the possibility that the patient may reconsider its decision, whereas the procedure is started killing already cause irreversible changes in his body.
Euthanasia procedure can facilitate the commission of crimes through the use of physical or psychological pressure on the patient’s medical staff bribery, abuse of official position, fraud and so on.
It may be difficult to correct diagnosis and prognosis of further development of the disease, the problem of obtaining patient consent, which is unconscious, the problem of establishing and leading voluntary withdrawal from life, medical and ethical issues, and many others.
In today’s environment Euthanasia can become a means of killing lonely old children with disabilities, persons suffering from incurable diseases and the treatment of missing money and more.
Moreover, if we consider euthanasia from a legal point of view, a doctor who makes lethal injection actually commits murder.
Note that the criterion of untreated difficult to determine when you can expect from the science of healing from serious illness and reduce the suffering of patients.
Therefore, a clear conclusion about the possibility of euthanasia is difficult to do. In case of approval of euthanasia should consider many aspects clearly define the procedure for execution of euthanasia, the number of persons for which it can be conducted to determine what shall bear criminal responsibility and the person who somehow violated the euthanasia process.
Chapter II: Human and Citizens’ Rights, Freedoms and Duties
Article 21
All people are free and equal in their dignity and rights.
Human rights and freedoms are inalienable and inviolable.
Article 22
Human and citizens’ rights and freedoms affirmed by this Constitution are not exhaustive.
Constitutional rights and freedoms are guaranteed and shall not be abolished.
The content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws or in the amendment of laws that are in force.
Article 23
Every person has the right to free development of his or her personality if the rights and freedoms of other persons are not violated thereby, and has duties before the society in which the free and comprehensive development of his or her personality is ensured.
Article 24
Citizens have equal constitutional rights and freedoms and are equal before the law.
There shall be no privileges or restrictions based on race, color of skin, political, religious, and other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic, or other characteristics.
Equality of the rights of women and men is ensured: by providing women with opportunities equal to those of men, in public and political, and cultural activity, in obtaining education and in professional training, in work and its remuneration; by special measures for the protection of work and health of women; by establishing pension privileges, by creating conditions that allow women to combine work and motherhood; by legal protection, material and moral support of motherhood and childhood, including the provision of paid leaves and other privileges to pregnant women and mothers.
Article 25
A citizen of Ukraine shall not be deprived of citizenship and of the right to change citizenship.
A citizen of Ukraine shall not be expelled from Ukraine or surrendered to another state.
Ukraine guarantees care and protection to its citizens who are beyond its borders.
Article 26
Foreigners and stateless persons who are in Ukraine on legal grounds enjoy the same rights and freedoms and also bear the same duties as citizens of Ukraine, with the exceptions established by the Constitution, laws or international treaties of Ukraine.
Foreigners and stateless persons may be granted asylum by the procedure established by law.
Article 27
Every person has the inalienable right to life.
No one shall be arbitrarily deprived of life. The duty of the State is to protect human life.
Everyone has the right to protect his or her life and health, the lives and health of other persons against unlawful encroachments.
Article 28
Everyone has the right to respect of his or her dignity.
No one shall be subjected to torture, cruel, inhuman, or degrading treatment or punishment that violates his or her dignity.
No person shall be subjected to medical, scientific, or other experiments without his or her free consent.
Article 29
Every person has the right to freedom and personal inviolability.
No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law.
In the event of an urgent necessity to prevent or stop a crime, bodies authorized by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately, if he or she has not been provided, within seventy-two hours from the moment of detention, with a substantiated court decision in regard to the holding in custody.
Everyone arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of a defender.
Everyone detained has the right to challenge his or her detention in court at any time.
Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.
Article 30
Everyone is guaranteed the inviolability of his or her dwelling place.
Entry into a dwelling place or other possessions of a person, and the examination or search thereof, shall not be permitted, other than pursuant to a substantiated court decision.
In urgent cases related to the preservation of human life and property or to the direct pursuit of persons suspected of committing a crime, another procedure established by law is possible for entry into a dwelling place or other possessions of a person, and for the examination and search thereof.
Article 31
Everyone is guaranteed privacy of mail, telephone conversations, telegraph, and other correspondence. Exceptions shall be established only by a court in cases envisaged by law, with the purpose of preventing crime or ascertaining the truth in the course of the investigation of a criminal case, if it is not possible to obtain information by other means.
Article 32
No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine.
The collection, storage, use, and dissemination of confidential information about a person without his or her consent shall not be permitted, except in cases determined by law, and only in the interests of national security, economic welfare, and human rights.
Every citizen has the right to examine information about himself or herself, that is not a state secret or other secret protected by law, at the bodies of state power, bodies of local self-government, institutions and organizations.
Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be expunged, and also the right to compensation for material and moral damages inflicted by the collection, storage, use, and dissemination of such incorrect information.
Article 33
Everyone who is legally present on the territory of Ukraine is guaranteed freedom of movement, free choice of place of residence, and the right to freely leave the territory of Ukraine, with the exception of restrictions established by law.
A citizen of Ukraine may not be deprived of the right to return to Ukraine at any time.
Article 34
Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.
Everyone has the right to freely collect, store, use and disseminate information by oral, written, or other means of his or her choice.
The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice.
Article 35
Everyone has the right to freedom of personal philosophy and religion. This right includes the freedom to profess or not to profess any religion, to perform alone or collectively and without constraint religious rites and ceremonial rituals, and to conduct religious activity.
The exercise of this right may be restricted by law only in the interests of protecting public order, the health and morality of the population, or protecting the rights and freedoms of other persons.
The Church and religious organizations in Ukraine are separated from the State, and the school – from the Church. No religion shall be recognized by the State as mandatory.
No one shall be relieved of his or her duties before the State or refuse to perform the laws for reasons of religious beliefs. In the event that the performance of military duty is contrary to the religious beliefs of a citizen, the performance of this duty shall be replaced by alternative (non-military) service.
Article 36
Citizens of Ukraine have the right to freedom of association in political parties and public organizations for the exercise and protection of their rights and freedoms and for the satisfaction of their political, economic, social, cultural and other interests, with the exception of restrictions established by law in the interests of national security and public order, the protection of the health of the population or the protection of rights and freedoms of other persons.
Political parties in Ukraine promote the formation and expression of the political will of citizens, and participate in elections. Only citizens of Ukraine may be members of political parties. Restrictions on membership in political parties are established exclusively by this Constitution and the laws of Ukraine.
Citizens have the right to take part in trade unions with the purpose of protecting their labor and socio-economic rights and interests. Trade unions are public organizations that unite citizens bound by common interests that accord with the nature of their professional activity. Trade unions are formed without prior permission on the basis of the free choice of their members. All trade unions have equal rights. Restrictions on membership in trade unions are established exclusively by this Constitution and the laws of Ukraine.
No one may be forced to join any association of citizens or be restricted in his or her rights for belonging or not belonging to political parties or public organizations.
All associations of citizens are equal before the law.
Article 37
The establishment and activity of political parties and public associations are prohibited if their program goals or actions are aimed at the liquidation of the independence of Ukraine, the change of the constitutional order by violent means, the violation of the sovereignty and territorial indivisibility of the State, the undermining of its security, the unlawful seizure of state power, the propaganda of war and of violence, the incitement of inter-ethnic, racial, or religious enmity, and the encroachment on human rights and freedoms and the health of the population.
Political parties and public associations shall not have paramilitary formations.
The creation and activity of organizational structures of political parties shall not be permitted within bodies of executive and judicial power and executive bodies of local self-government, in military formations, and also in state enterprises, educational establishments and other state institutions and organizations.
The prohibition of the activity of associations of citizens is exercised only through judicial procedure.
Article 38
Citizens have the right to participate in the administration of state affairs, in All-Ukrainian and local referendums, to freely elect and to be elected to bodies of state power and bodies of local self-government.
Citizens enjoy the equal right of access to the civil service and to service in bodies of local self-government.
Article 39
Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, processions, and demonstrations, upootifying in advance the bodies of executive power or bodies of local self-government.
Restrictions on the exercise of this right may be established by a court in accordance with the law and only in the interests of national security and public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons.
Article 40
Everyone has the right to file individual or collective petitions, or to personally appeal to bodies of state power, bodies of local self-government, and to the officials and officers of these bodies, that are obliged to consider the petitions and to provide a substantiated reply within the term established by law.
Article 41
Everyone has the right to own, use, and dispose of his or her property, and the results of his or her intellectual and creative activity.
The right of private property is acquired by the procedure determined by law.
In order to satisfy their needs, citizens may use the objects of the right of state and communal property in accordance with the law.
No one shall be unlawfully deprived of the right of property. The right of private property is inviolable.
The expropriation of objects of the right of private property may be applied only as an exception for reasons of social necessity, on the grounds of and by the procedure established by law, and on the condition of advance and complete compensation of their value. The expropriation of such objects with subsequent complete compensation of their value is permitted only under conditions of martial law or a state of emergency.
Confiscation of property may be applied only pursuant to a court decision, in the cases, in the extent and by the procedure established by law.
The use of property shall not cause harm to the rights, freedoms and dignity of citizens, the interests of society, aggravate the ecological situation and the natural qualities of land.
Article 42
Everyone has the right to entrepreneurial activity that is not prohibited by law.
The entrepreneurial activity of deputies, officials, and officers of bodies of state power and of bodies of local self-government is restricted by law.
The State ensures the protection of competition in entrepreneurial activity. The abuse of a monopolistic position in the market, the unlawful restriction of competition, and unfair competition, shall not be permitted. The types and limits of monopolies are determined by law.
The State protects the rights of consumers, exercises control over the quality and safety of products and of all types of services and work, and promotes the activity of public consumer associations.
Article 43
Everyone has the right to labor, including the possibility to earn one’s living by labor that he or she freely chooses or to which he or she freely agrees.
The State creates conditions for citizens to fully realize their right to labor, guarantees equal opportunities in the choice of profession and of types of labor activity, implements programs of vocational education, training and retraining of personnel according to the needs of society.
The use of forced labor is prohibited. Military or alternative (non-military) service, and also work or service carried out by a person in compliance with a verdict or other court decision, or in accordance with the laws on martial law or on a state of emergency, are not considered to be forced labor.
Everyone has the right to proper, safe and healthy work conditions, and to remuneratioo less than the minimum wage as determined by law. The employment of women and minors for work that is hazardous to their health, is prohibited. Citizens are guaranteed protection from unlawful dismissal.
The right to timely payment for labor is protected by law.
Article 44
Those who are employed have the right to strike for the protection of their economic and social interests.
The procedure for exercising the right to strike is established by law, taking into account the necessity to ensure national security, health protection, and rights and freedoms of other persons.
No one shall be forced to participate or not to participate in a strike.
The prohibition of a strike is possible only on the basis of the law.
Article 45
Everyone who is employed has the right to rest.
This right is ensured by providing weekly rest days and also paid annual vacation, by establishing a shorter working day for certain professions and industries, and reduced working hours at night.
The maximum number of working hours, the minimum duration of rest and of paid annual vacation, days off and holidays as well as other conditions for exercising this right, are determined by law.
Article 46
Citizens have the right to social protection that includes the right to provision in cases of complete, partial or temporary disability, the loss of the principal wage-earner, unemployment due to circumstances beyond their control and also in old age, and in other cases established by law.
This right is guaranteed by general mandatory state social insurance on account of the insurance payments of citizens, enterprises, institutions and organizations, and also from budgetary and other sources of social security; by the establishment of a network of state, communal and private institutions to care for persons incapable of work.
Pensions and other types of social payments and assistance that are the principal sources of subsistence, shall ensure a standard of living not lower than the minimum living standard established by law.
Article 47
Everyone has the right to housing. The State creates conditions that enable every citizen to build, purchase as property, or to rent housing.
Citizens ieed of social protection are provided with housing by the State and bodies of local self-government, free of charge or at a price affordable for them, in accordance with the law.
No one shall be forcibly deprived of housing other than on the basis of the law pursuant to a court decision.
Article 48
Everyone has the right to a standard of living sufficient for himself or herself and his or her family that includes adequate nutrition, clothing and housing.
Article 49
Everyone has the right to health protection, medical care and medical insurance.
Health protection is ensured through state funding of the relevant socio-economic, medical and sanitary, health improvement and prophylactic programs.
The State creates conditions for effective medical service accessible to all citizens. State and communal health protection institutions provide medical care free of charge; the existing network of such institutions shall not be reduced. The State promotes the development of medical institutions of all forms of ownership.
The State provides for the development of physical culture and sports, and ensures sanitary-epidemic welfare.
Article 50
Everyone has the right to an environment that is safe for life and health, and to compensation for damages inflicted through the violation of this right.
Everyone is guaranteed the right of free access to information about the environmental situation, the quality of food and consumer goods, and also the right to disseminate such information. No one shall make such information secret.
Article 51
Marriage is based on the free consent of a woman and a man. Each of the spouses has equal rights and duties in the marriage and family. Parents are obliged to support their children until they attain the age of majority. Adult children are obliged to care for their parents who are incapable of work.
The family, childhood, motherhood and fatherhood are under the protection of the State.
[edit]Article 52
Children are equal in their rights regardless of their origin and whether they are born in or out of wedlock.
Any violence against a child, or his or her exploitation, shall be prosecuted by law.
The maintenance and upbringing of orphans and children deprived of parental care is entrusted to the State. The State encourages and supports charitable activity in regard to children.
Article 53
Everyone has the right to education.
Complete general secondary education is compulsory.
The State ensures accessible and free pre-school, complete general secondary, vocational and higher education in state and communal educational establishments; the development of pre-school, complete general secondary, extra-curricular, vocational, higher and post-graduate education, various forms of instruction; the provision of state scholarships and privileges to pupils and students.
Citizens have the right to obtain free higher education in state and communal educational establishments on a competitive basis.
Citizens who belong to national minorities are guaranteed in accordance with the law the right to receive instruction in their native language, or to study their native language in state and communal educational establishments and through national cultural societies.
Article 54
Citizens are guaranteed the freedom of literary, artistic, scientific and technical creativity, protection of intellectual property, their copyrights, moral and material interests that arise with regard to various types of intellectual activity.
Every citizen has the right to the results of his or her intellectual, creative activity; no one shall use or distribute them without his or her consent, with the exceptions established by law.
The State promotes the development of science and the establishment of scientific relations of Ukraine with the world community.
Cultural heritage is protected by law.
The State ensures the preservation of historical monuments and other objects of cultural value, and takes measures to return to Ukraine the cultural treasures of the nation, that are located beyond its borders.
Article 55
Human and citizens’ rights and freedoms are protected by the court.
Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies of state power, bodies of local self-government, officials and officers.
Everyone has the right to appeal for the protection of his or her rights to the Authorized Human Rights Representative of the Verkhovna Rada of Ukraine.
After exhausting all domestic legal remedies, everyone has the right to appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organizations of which Ukraine is a member or participant.
Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.
Article 56
Everyone has the right to compensation, at the expense of the State or bodies of local self-government, for material and moral damages inflicted by unlawful decisions, actions or omission of bodies of state power, bodies of local self-government, their officials and officers during the exercise of their authority.
Article 57
Everyone is guaranteed the right to know his or her rights and duties.
Laws and other normative legal acts that determine the rights and duties of citizens shall be brought to the notice of the population by the procedure established by law.
Laws and other normative legal acts that determine the rights and duties of citizens, but that are not brought to the notice of the population by the procedure established by law, are not in force.
Article 58
Laws and other normative legal acts have no retroactive force, except in cases where they mitigate or annul the responsibility of a person.
No one shall bear responsibility for acts that, at the time they were committed, were not deemed by law to be an offence.
Article 59
Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his or her rights.
In Ukraine, the advocacy acts to ensure the right to a defense against accusation and to provide legal assistance in deciding cases in courts and other state bodies.
Article 60
No one is obliged to execute rulings or orders that are manifestly criminal.
For the issuance or execution of a manifestly criminal ruling or order, legal liability arises.
Article 61
For one and the same offence, no one shall be brought twice to legal liability of the same type.
The legal liability of a person is of an individual character.
Article 62
A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through legal procedure and established by a court verdict of guilty. No one is obliged to prove his or her innocence of committing a crime.
An accusation shall not be based on illegally obtained evidence as well as on assumptions. All doubts in regard to the proof of guilt of a person are interpreted in his or her favor.
In the event that a court verdict is revoked as unjust, the State compensates the material and moral damages inflicted by the groundless conviction.
Article 63
A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law.
A suspect, an accused, or a defendant has the right to a defense.
A convicted person enjoys all human and citizens’ rights, with the exception of restrictions determined by law and established by a court verdict.
Article 64
Constitutional human and citizens’ rights and freedoms shall not be restricted, except in cases envisaged by the Constitution of Ukraine.
Under conditions of martial law or a state of emergency, specific restrictions on rights and freedoms may be established with the indication of the period of effectiveness of these restrictions. The rights and freedoms envisaged in Articles 24, 25, 27, 28, 29, 40, 47, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62 and 63 of this Constitution shall not be restricted.
Article 65
Defense of the Motherland, of the independence and territorial indivisibility of Ukraine, and respect for its state symbols, are the duties of citizens of Ukraine.
Citizens perform military service in accordance with the law.
Article 66
Everyone is obliged not to harm nature, cultural heritage and to compensate for any damage he or she inflicted.
Article 67
Everyone is obliged to pay taxes and levies in accordance with the procedure and in the extent established by law.
All citizens annually file declarations with the tax inspection at their place of residence, on their property status and income for the previous year, by the procedure established by law.
Article 68
Everyone is obliged to strictly abide by the Constitution of Ukraine and the laws of Ukraine, and not to encroach upon the rights and freedoms, honor and dignity of other persons.
Ignorance of the law shall not exempt from legal liability.
CRIMINAL CODE OF UKRAINE
(This Code enters into force on September 1, 2001)
GENERAL PART
Chapter I. GENERAL PROVISIONS
Article 1. Objectives of the Criminal Code of Ukraine
1. The objective of the Criminal Code of Ukraine is to provide legal protection of the rights and liberties of the human being and citizen, property, public order and public safety, the environment, and the constitutional order of Ukraine against criminal encroachments, to secure peace and safety of mankind, and also to prevent crime.
2. To this aim, the Criminal Code defines which socially dangerous acts or omissions count as offenses, and which punishments are to be imposed upon persons who commit them.
Article 2. Grounds for criminal liability
1. Commission by a person of a socially dangerous act that has such elements of crime as created by this Code gives grounds for criminal liability.
2. A person is deemed innocent of a crime and may not be criminally punished until his/her guilt is legally proven and found by a lawful sentence.
3. No person may be prosecuted more than once for one and the same offense.
Chapter II. LAW ON CRIMINAL LIABILITY
Article 3. Ukrainian legislation on criminal liability
1. The Criminal Code of Ukraine, based on the Constitution of Ukraine and generally recognized principles and rules of international law, shall be the Ukrainian legislation on criminal liability.
2. The Ukrainian laws on criminal liability, adopted after the entry of this Code into force, shall be incorporated in this Code following its entry into force.
3. The criminality of any act and also its punishability and other criminal consequences shall be determined exclusively by this Code.
4. Application of the law on criminal liability by analogy shall be prohibited.
5. The laws of Ukraine on criminal liability must be consistent with provisions of existing international treaties, consent for the binding effect of which has been granted by the Verkhovna Rada of Ukraine.
Article 4. Operation of the law on criminal liability in time
1. The law on criminal liability shall enter into force ten days after its official promulgation, unless otherwise is provided in the law itself, but not prior to the day of its publication.
2. The criminality and punishability of an act shall be determined by such law on criminal liability as was in effect at the time of commission of the act.
3. The time of commission of a criminal offense shall be the time in which a person committed an act or omission provided for by the law on criminal liability.
Article 5. Retroactive effect of the law on criminal liability in time
1. The law on criminal liability, which repeals the criminality of an act or lenifies criminal liability, shall be retroactive in time, that is it shall apply to persons who had committed relevant acts before that law entered into force, including the persons serving their sentence or those who have completed their sentence but have a conviction.
2. The law on criminal liability that criminalizes an act or increases criminal liability shall not be retroactive in time.
3. The law on criminal liability, which partially lenifies and partially increases criminal liability, shall be retroactive in time only in the part which lenifies the liability.
Article 6. The operation of the law on criminal liability in regard to offences committed on the territory of Ukraine
1. Any person who has committed an offense on the territory of Ukraine shall be criminally liable under this Code.
2. An offense shall be deemed to have been committed on the territory of Ukraine if it has been initiated, continued, completed or discontinued on the territory of Ukraine.
3. An offense shall be deemed to have been committed on the territory of Ukraine if the principal to such offense, or at least one of the accomplices, has acted on the territory of Ukraine.
4. Where a diplomatic agent of a foreign state or another citizen who, under the laws of Ukraine or international treaties the consent to the binding effect of which has been granted by the Verkhovna Rada of Ukraine, is not criminally cognizable by a Ukrainian court commits an offense on the territory of Ukraine, the issue of his criminal liability shall be settled diplomatically.
Article 7. The operation of the law on criminal liability in regard to offenses committed by citizens of Ukraine or stateless persons outside Ukraine
1. Citizens of Ukraine and stateless persons permanently residing in Ukraine, who have committed offenses outside Ukraine, shall be criminally liable under this Code, unless otherwise provided by the international treaties of Ukraine, the consent to the binding effect of which has been granted by the Verkhovna Rada of Ukraine.
2. Where the persons referred to in the first paragraph of this Article underwent criminal punishment for the committed criminal offenses outside Ukraine, they shall not be criminally liable for these criminal offenses in Ukraine.
Article 8. The operation of the law on criminal liability in regard to offenses committed by foreigationals or stateless persons outside Ukraine
Foreigationals or stateless persons not residing permanently in Ukraine, who have committed criminal offenses outside Ukraine, shall be criminally liable in Ukraine under this Code in such cases as provided for by the international treaties, or if they have committed any of the special grave offenses against rights and freedoms of Ukrainian citizens or Ukraine as prescribed by this Code.
Article 9. Legal consequences of conviction outside Ukraine
1. A judgment passed by a foreign court may be taken into account where a citizen of Ukraine, a foreigational, or a stateless person have been convicted of a criminal offense committed outside Ukraine and have committed another criminal offense on the territory of Ukraine.
2. Pursuant to the first paragraph of this Article, the repetition of criminal offenses, or a sentence not served, or any other legal consequences of a judgment passed by a foreign court shall be taken into account in the classification of any new criminal offense, determination of punishment, in the discharge from criminal liability or punishment.
Article 10. Extradition of a person accused of a criminal offense and a person convicted of a criminal offense
1. Citizens of Ukraine and stateless persons permanently residing in Ukraine, who have committed criminal offenses outside Ukraine, shall not be extradited to a foreign state for criminal prosecution and committal for trial.
2. Foreigationals, who have committed criminal offenses on the territory of Ukraine and were convicted of these offenses under this Code, may be transferred to serve their sentences for the committed offenses in the state, whose nationals they are, where such transfer is provided for by the international treaties of Ukraine.
3. Foreigationals or stateless persons not residing permanently in Ukraine, who have committed crimes outside Ukraine and stay on the territory of Ukraine, may be extradited to a foreign state for criminal prosecution and committal for trial, or transferred to serve their sentence, where such extradition or transfer is provided for by the international treaties of Ukraine.
Chapter III. CRIMINAL OFFENSE, ITS TYPES AND STAGES
Article 11. Notion of a criminal offense
1. A criminal offense shall mean a socially dangerous culpable act (action or omission) prescribed by this Code and committed by an offender.
2. Although an act or omission may have, technically, any elements of an act under this Code, it is not an offense if, due to its insignificance, it is not a social danger, i.e. it neither did nor could cause considerable harm to any natural or legal person, community, society or the state.
Article 12. Classification of criminal offenses
1. Depending on the gravity, criminal offenses shall be classified as minor offenses, medium grave offenses, grave offenses, or special grave offenses.
2. A minor criminal offense shall mean an offense punishable by imprisonment for a term up to two years or a more lenient penalty.
3. A medium grave offense shall mean an offense punishable by imprisonment for a term up to five years.
4. A grave criminal offense shall mean an offense punishable by imprisonment for a term up to ten years.
5. A special grave offense shall mean an offense punishable by more than ten years of imprisonment or a life sentence.
Article 13. Consummated and unconsummated criminal offenses
1. A consummated criminal offense shall mean an offense which comprises all elements of a criminal offense as prescribed by the relevant article of the Special Part of this Code.
2. An unconsummated criminal offense shall mean the preparation for crime and criminal attempt.
Article 14. Preparation for crime
1. The preparation for crime shall mean the looking out or adapting means and tools, or looking for accomplices to, or conspiring for, an offense, removing of obstacles to an offense, or otherwise intended conditioning of an offense.
2. Preparation to commit a minor criminal offense does not give rise to criminal liability.
Article 15. Criminal attempt
1. A criminal attempt shall mean a directly intended act (action or omission) made by a person and aimed directly at the commission of a criminal offense prescribed by the relevant article of the Special Part of this Code, where this criminal offense has not been consummated for reasons beyond that person’s control.
2. A criminal attempt shall be consummated where a person has completed all such actions as he/she deemed necessary for the consummation of an offense, however, the offense was not completed for the reasons beyond that person’s control.
3. A criminal attempt shall be unconsummated where a person has not completed all such actions as he/she deemed necessary for the consummation of an offense for the reasons beyond that person’s control.
Article 16. Criminal liability for an unconsummated criminal offense
The criminal liability for the preparation for crime and a criminal attempt shall rise under Article 14 or 15 and that article of the Special Part of this Code which prescribes liability for the consummated crime.
Article 17. Voluntary renunciation in an unconsummated criminal offense
1. The voluntary renunciation shall mean the final discontinuation of the preparation for crime or a criminal attempt by a person of his/her own will, where that person have realized that the criminal offense may be consummated.
2. A person who voluntarily renounced to consummate a criminal offense shall be criminally liable only if the actual act committed by that person comprised elements of any other offense.
Chapter V. GUILT AND ITS FORMS
Article 23. Guilt
Guilt shall mean a mental stance of a person in regard to the performed act or omission under this Code and to the consequences thereof, as expressed in the form of intent or recklessness.
Article 24. Intent and its forms
1. An intent may be direct or indirect.
2. The intent is direct where a person was conscious of the socially injurious nature of his/her act (action or omission), anticipated its socially injurious consequences, and wished them.
3. The intent is indirect where a person was conscious of the socially injurious nature of his/her act (action or omission), foresaw its socially injurious consequences, and anticipated, though did not wish them.
Article 25. Recklessness and its types
1. Recklessness subdivides into criminal presumption and criminal negligence.
2. Recklessness is held to be criminal presumption where a person anticipated that his/her act (action or omission) may have socially injurious consequences but carelessly expected to avoid them.
3. Recklessness is held to be criminal negligence where a person did not anticipate that his/her act (action or omission) may have socially injurious consequences, although ought to and could anticipate them.
Chapter VI. COMPLICITY
Article 26. The notion of complicity
Criminal complicity is the willful co-participation of several criminal offenders in an intended criminal offense.
Article 27. Types of accomplices
1. Organizer, abettor and accessory, together with the principal offender, are deemed to be accomplices in a criminal offense.
2. The principal (or co-principal) is the person who, in association with other criminal offenders, has committed a criminal offense under this Code, directly or through other persons, who cannot be criminally liable, in accordance with the law, for what they have committed.
3. The organizer is a person who has organized a criminal offense (or criminal offenses) or supervised its (their) preparation or commission. The organizer is also a person who has created an organized group or criminal organization, or supervised it, or financed it, or organized the covering up of the criminal activity of an organized group or criminal organization.
4. The abettor is a person who has induced any other accomplice to a criminal offense, by way of persuasion, subornation, threat, coercion or otherwise.
5. The accessory is a person who has facilitated the commission of a criminal offense by other accomplices, by way of advice, or instructions, or by supplying the means or tools, or removing obstacles, and also a person who promised in advance to conceal a criminal offender, tools or means, traces of crime or criminally obtained things, to buy or sell such things, or otherwise facilitate the covering up of a criminal offense.
6. The concealment of a criminal offender, tools or means of a criminal offense, traces of crime or criminally obtained things, or buying or selling such things shall not constitute complicity where they have not been promised in advance. Persons who have committed such acts shall be criminally liable only in cases prescribed by Articles 198 and 396 of this Code.
7. A promised failure to report a crime which is definitely known to be in preparation or in progress, prior to the consummation of such, shall not constitute complicity. Any such person shall be criminally liable only if the act so committed comprises the elements of any other criminal offense.
Article 28. Criminal offense committed by a group of persons, or a group of persons upon prior conspiracy, or an organized group, or a criminal organization
1. A criminal offense shall be held to have been committed by a group of persons where several (two or more) principal offenders participated in that criminal offense, acting without prior conspiracy.
2. A criminal offense shall be held to have been committed by a group of persons upon prior conspiracy where it was jointly committed by several (two or more) persons who have conspired in advance, that is prior to the commencement of the offense, to commit it together.
3. A criminal offense shall be held to have been committed by an organized group where several persons (three or more) participated in its preparation or commission, who have previously established a stable association for the purpose of committing of this and other offense (or offenses), and have been consolidated by a common plan with assigned roles designed to achieve this plan known to all members of the group.
4. A criminal offense shall be held to have been committed by a criminal organization where it was committed by a stable hierarchical association of several persons (three and more), members or structural units of which have organized themselves, upon prior conspiracy, to jointly act for the purpose of directly committing of grave or special grave criminal offenses by the members of this organization, or supervising or coordinating criminal activity of other persons, or supporting the activity of this criminal organization and other criminal groups.
Article 29. Criminal liability of accomplices
1. The principal (or co-principals) shall be criminally liable under that article of the Special Part of this Code which creates the offense he has committed.
2. The organized, abettor and accessory shall be criminally liable under the respective paragraph of Article 27 and that article (or paragraph of the article) of the Special Part of this Code which creates an offense committed by the principal.
3. The features of character of a specific accomplice shall be criminated only upon such accomplice. Other circumstances that aggravate responsibility and are provided for by articles of the Special Part of this Code as the elements of a crime that affect the treatment of the principal’s actions, shall be criminated only upon the accomplice who was conscious of such circumstances.
4. Where the principal commits an unconsummated criminal offense, other accomplices shall be criminally liable for complicity in an unconsummated crime.
5. Accessories shall not be criminally liable for the act committed by the principal, where that act was no part of their intent.
Article 30. Criminal liability of organizers and members of an organized group or criminal organization
1. An organizer of an organized group or criminal organization shall be criminally liable for all the criminal offenses committed by the organized group or criminal organization, if those offenses were part of his intent.
2. Other members of an organized group or criminal organization shall be criminally liable for the criminal offenses prepared or committed with their participation, regardless of the role each of them had in such offenses.
Article 31. Voluntary renunciation of accomplices
1. In event of a principal’s (or co-principals’) voluntary renunciation to commit a criminal offense, he (or they) shall not be criminally liable where the conditions prescribed by Article 17 of this Code are satisfied. In this event other accomplices shall be criminally liable for the preparation of the criminal offense or the attempted offense which was voluntary renunciated by the principal.
2. An organizer, abettor or accessory shall not be criminally liable in event of their voluntary renunciation, where they averted the offense or timely reported the preparation or commission of the offense to appropriate public authorities. The accessory’s failure to supply the means and tools or remove obstacles for the offense shall also be regarded as his voluntary renunciation.
3. In event of a voluntary renunciation of any accomplice, the principal shall be criminally liable for the preparation of the criminal offense or for the attempted offense depending on the stage at which his act was precluded.
Chapter VIII. CIRCUMSTANCES EXCLUDING CRIMINALITY OF AN ACT
Article 36. Necessary defense
1. The necessary defense shall mean actions taken to defend the legally protected rights and interests of the defending person or another person, and also public interests and interests of the state, against a socially dangerous trespass, by inflicting such harm upon the trespasser as is necessary and sufficient in a given situation to immediately avert or stop the trespass, provided the limits of the necessary defense are not exceeded.
2. Every person shall have the right to necessary defense notwithstanding any possibility to avoid a socially dangerous trespass or request assistance of other persons or authorities.
3. The excess of necessary defense shall mean an intended causing of a grievous harm to the trespasser, which is not adequate to the danger of the trespass or circumstances of the defense. The excess of necessary defense shall entail criminal liability only in cases specifically prescribed in Articles 118 and 124 of this Code.
4. A person shall not be subject to criminal liability where that person was not able, due to high excitement, to evaluate if the harm caused by that person was proportionate to the danger of the trespass or circumstances of defense.
5. The use of weapons or other means or things for protection against an attack of an armed person or an attack of a group of persons, and also to avert an unlawful violent intrusion upon a dwelling place or other premises, shall not be treated as the excess of necessary defense and shall not entail criminal liability irrespective of the gravity of harm caused to the trespasser.
Article 37. Misread Defense
1. The misread defense shall mean actions resulting in a harm caused in the absence of any real socially dangerous trespass where the person, who misinterpreted actions of the victim’s, only mistakenly presumed the reality of such trespass.
2. The misread defense shall exclude any criminal liability for the harm caused only if the circumstances involved furnished reasonable grounds for the person to believe that there was a real trespass and that person was not and could not be aware that his/her presumption was mistaken.
3. Where a person was not and could not be aware that his/her presumption was mistaken, but acted in excess of defense justifiable under the circumstances of a real trespass, that person shall be criminally liable for the excess of necessary defense.
4. Where a person, under the circumstances, was not aware of, but ought to realize the absence of a real socially dangerous trespass, that person shall be criminally liable for the harm caused by recklessness.
Article 38. Apprehension of an offender
1. Any actions of the victim or other persons immediately following a trespass and aimed at the apprehending of the offender and bringing him or her to appropriate public authorities and were not in excess of what was necessary for such apprehension, is not held to be criminal.
2. Any willful infliction, upon an offender, of grievous harm clearly disproportionate to the danger of the trespass or circumstances involved in the apprehension of the offender, is held to be in excess of measures necessary for the apprehension. The excess of measures necessary for the apprehension of an offender shall entail criminal liability only in cases specifically provided for in Articles 118 and 124 of this Code.
Article 39. Extreme necessity
1. Infliction of harm to legally protected interests in circumstances of extreme necessity, that is to prevent an imminent danger to a person or legally protected rights of that person or other persons, and also public interests or interests of the state, shall not be a criminal offense, where the danger could not be prevented by other means and where the limits of extreme necessity were not exceeded.
2. Any willful infliction of harm upon any legally protected interests, where such harm is larger than the harm thus prevented, is held to be in excess of extreme necessity.
3. A person shall not be criminally liable for exceeding the limits of extreme necessity where that person could not, as a result of high excitement raised by the danger, evaluate if the harm caused was proportionate to such danger.
Article 40. Physical or mental coercion
1. A person’s action or omission that caused harm to legally protected interests, is not to be held a criminal offense, where that person acted under direct physical coercion which rendered him or her unable to be in control of his/her actions.
2. The decision on a person’s criminal liability for causing harm to legally protected interests, shall be made pursuant to provisions of Article 39 of this Code, where that person was subject to physical coercion, under which he/she was able to control his/her actions, and also subject to mental coercion.
Article 41. Obeying an order or command
1. A person’s action or omission that caused harm to legally protected interests, shall be lawful, where that person acted to obey a legal order or instructions.
2. An order or command is held to be lawful where it is duly issued by an appropriate person acting within his/her commission and, in its substance, is not contrary to applicable laws and does not breach the constitutional rights and freedoms of the human being and citizen.
3. A person shall not be criminally liable for disobeying a patently criminal order or command.
4. A person, who obeyed a patently criminal order or command, shall be criminally liable on general grounds for the acts committed in pursuance of such order or command.
5. Where a person was not and could not be aware of the criminal nature of an order or command, the criminal liability for the act committed in pursuance of such order or command shall arise only with respect to the person who gave the criminal order or command.
Article 42. An act involving risk
1. No act (action or omission) in prejudice of legally protected interests shall be held to be a criminal offense where it was committed in circumstances of justified risk to achieve a significant purpose valuable to the community.
2. A risk shall be justified if the goal pursued could not, under the circumstances, be achieved otherwise than by an action (omission) involving risk and the person that allowed the risk reasonably believed that he/she exercised enough caution to avert harm to the legally protected interests.
3. A risk shall not be justified if it knowingly endangered lives of other people, or created a threat of environmental disaster or any other emergency.
Article 43. Undertaking a special mission to prevent or uncover criminal activities of an organized group or criminal organization
1. A compelled causing of harm to legally protected interests by a person shall not be a criminal offense, where such person was undertaking a special mission, pursuant to law, by way of participation in an organized group or criminal organization for the purpose of preventing or uncovering its criminal activities.
2. Any such person as described in the first paragraph of this article shall be criminally liable only for committing, as part of an organized group or criminal organization, a special grave criminal offense which was willful and involved violence with respect to the victim, or a grievous crime, which was willful and involved grievous bodily injury to the victim or other serious or particularly serious consequences.
3. A person who has committed such criminal offense may not be sentenced to life and may not be imprisoned for a longer term than half of the maximum term of imprisonment prescribed by the law in respect of this crime.
Chapter IX. DISCHARGE FROM CRIMINAL LIABILITY
Article 44. Legal grounds and procedure for discharge from criminal liability
1. A person, who committed a criminal offense, shall be discharged from criminal liability in cases prescribed by this Code, and also on the grounds of the Law of Ukraine of amnesty or an act of pardon.
2. The discharge from criminal liability in cases prescribed by this Code shall be exercised exclusively by court. The procedure of discharge from criminal liability in shall be established by law.
Article 45. Discharge from criminal liability in view of effective repentance
A person who has committed a minor criminal offense for the first time shall be discharged from criminal liability if, upon committing that offense, he/she sincerely repented, actively facilitates the detection of the offense, and fully compensates the losses or repairs the damage inflicted.
Article 46. Discharge from criminal liability in view of reconciliation of the offender and the victim
A person who has committed a minor criminal offense for the first time shall be exempt from criminal liability if he/she reconciled with the victim and compensated the losses or repaired the damage inflicted.
Article 47. Discharge from criminal liability in view of admission by bail
1. A person, who has committed a minor criminal offense or an offense of medium gravity for the first time and sincerely repented, may be discharged from criminal liability for admission by bail on request of the collective body of an enterprise, institution or organization on condition that such person, within one year of his/her admission by bail, will not fail the trust of the collective body, avoid measures of correctional nature or break public peace.
2. If conditions of the admission by bail are not satisfied, the person shall be subject to criminal liability for the offense committed.
Article 48. Discharge from criminal liability due to a change of situation
A person who has committed a minor criminal offense or an offense of medium gravity for the first time may be discharged from criminal liability if it is found that at the time of investigation or trial, due to a change of situation, the act committed by that person has lost its socially dangerous nature or that person has ceased to be dangerous to the public.
Article 49. Discharge from criminal liability due to limitation period
1. A person shall be discharged from criminal liability if the following periods have elapsed from the date of the criminal offense to the effective date of the judgment:
(1) two years where a minor offense has been committed and the prescribed punishment is less severe than the restraint of liberty;
(2) three years where a minor offense has been committed and the prescribed punishment is the restraint of liberty or imprisonment;
(3) seven years where an offense of medium gravity has been committed;
(4) fifteen years where a grave offense has been committed;
(5) twenty years where a special grave offense has been committed.
2. The statute of limitations shall be saved where a person who committed a criminal offense evaded investigation or trial. In such cases the running of the statute of limitations is resumed as of the date of the person’s surrender or apprehension. In this case the person shall be discharged from liability if twenty years elapsed after the commission of the offense.
3. The statute of limitation shall be forfeited where a person, before the terms specified in paragraphs (1) and (2) of this Article have expired, commits another medium grave, grave or special grave offense. In this case a limitation period starts on the date on which such new crime is committed. Each offense gives rise to its own period of limitation.
4. Where a person has committed a special grave offense punishable by life imprisonment, the issue of limitation shall be decided by a court. Where a court rules out the possibility to apply a period of limitation, a sentence of life may not be imposed and is commuted to an imprisonment for a determinate term.
5. The statute of limitation shall not apply where any crime against the peace and humanity, as provided for in Articles 437 through 439, and paragraph 1 of Article 442 of this Code.
Chapter X. PUNISHMENT AND ITS TYPES
Article 50. The definition of punishment and its purpose
1. The punishment is a coercive measure imposed in a judgment of court on behalf of the State upon a person found guilty of a criminal offense and consists in restraint of the sentenced person’s rights and freedoms secured by law.
2. The punishment is aimed not only at penalizing but also reformation of sentenced persons and prevention of further offenses by both the sentenced and other persons.
3. The punishment is not meant to cause physical sufferings or humiliate human dignity.
Article 51. Types of punishment
1. The following types of punishment may be imposed by a court on persons convicted of criminal offenses:
(1) fine;
(2) revocation of a military or special title, rank, grade or qualification class;
(3) deprivation of the right to occupy certain positions or engage in certain activities;
(4) community service
(5) correctional labor;
(6) service restrictions for military servants;
(7) forfeiture of property;
(8) arrest;
(9) restraint of liberty;
(10) custody of military servants in a penal battalion;
(11) imprisonment for a determinate term;
(12) life imprisonment.
Article 52. Primary and additional punishments
1. Primary punishments are community service, correctional labor, service restrictions for military servants, arrest, restraint of liberty, custody of military servants in a penal battalion, imprisonment for a determinate term, and life imprisonment.
2. Additional punishments are revocation of a military or special title, rank, grade or qualification class, and forfeiture of property.
3. Fine, revocation of the right to occupy certain positions or engage in certain activities may be imposed as either primary or additional punishments.
4. Only one primary punishment, as defined in a sanction of an article in the Special Part of this Code, may be imposed for one criminal offense. The primary punishment may be accompanied by one or several additional punishments in cases and manner prescribed by this Code.
5. Evading the punishment imposed in a judgment of court entails liability pursuant to Articles 389 and 390 of this Code.
Article 53. Fine
1. The fine is a pecuniary penalty imposed by a court in cases and within limits provided for in the Special Part of this Code.
2. The amount of a fine shall be determined by a court depending on the gravity of the offense committed and the property status of the guilty person but within the limits of four to one thousand tax-free minimum individual income, unless a larger amount of a fine is prescribed by articles of the Special Part of this Code.
3. A fine shall be imposed as an additional punishment only if it is specifically sanctioned by an article in the Special Part of this Code.
4. Where a fine cannot be paid, a court may replace the outstanding amount of a fine by community service calculated as ten hours of community service for each tax-free minimum individual income established by law, or by correctional labor calculated as one month of correctional labor for four tax-free minimum incomes established by law, but for a period not exceeding two years.
Article 54. Revocation of a military or special title, rank, grade or qualification class
A person, who has a military or special title, rank, grade or qualification class and was convicted of a grave or special grave offense, may be subject to revocation of his/her military or special title, rank, grade or qualification class by a judgment of court.
Article 55. Deprivation of the right to occupy certain positions or engage in certain activities
1. Deprivation of the right to occupy certain positions or engage in certain activities may be imposed as primary punishment for a term of two to five years or as additional punishment for a term of one to three years.
2. Deprivation of the right to occupy certain positions or engage in certain activities as additional punishment may also be imposed without reference to a sanction of an article in the Special Part of this Code, if a court, having regard to the nature of the offense committed by a person in office or in connection with a certain activity, the character of the person convicted, and other circumstances of the case, decides that such person should be deprived of the right to occupy certain positions or engage in certain activities.
3. Where deprivation of the right to occupy certain positions or engage in certain activities is imposed as additional punishment together with the arrest, restraint of liberty, custody of military servants in a penal battalion, or imprisonment for a determinate term, it shall extend through all the term of the primary punishment, and also for a term specified in a judgment of court that came into effect. For this purpose, the term of additional punishment is calculated from the moment of completion of the primary punishment; and – for the purpose of punishment imposed in the form of deprivation of the right to occupy certain positions or engage in certain activities as additional to other primary punishments, and also for the purpose of Article 77 of this Code – is calculated from the moment that the judgment comes into effect.
Article 56. Community service
1. Community service consists in performance, by a convicted person during hours free from work or studies, of unpaid work valuable to the community, as determined by the local government authorities.
2. The term of community service imposed may be from 60 to 240 hours and its duration in any single day may not be longer than 4 hours.
4. Community service may not be imposed upon persons who have been certified to have a first or a second degree disability, pregnant women, persons of retirement age, and military servants in active service.
Article 57. Correctional labor
1. The punishment of correctional labor shall be imposed for a term of six months to two years and is to be served by the convicted person at the place of his/her employment. A certain amount of money shall be deducted from the convicted person’s salary in favor of the State, ranging from 10 to 20 percent as determined in the judgment of court.
2. Correctional labor shall not be imposed upon pregnant women, women on maternity leave, disabled persons, persons under 16 years of age, persons of retirement age, military servants, law enforcement officers, notaries, judges, prosecutors, defense attorneys, civil servants, and local government officials.
3. A court may substitute correctional labor by a fine calculated as three tax-free minimum incomes, established by the law, for one month of correctional labor, for those persons who became disabled after their sentence was awarded by a court.
Article 58. Service restrictions for military servants
1. The punishment of service restriction shall be imposed on convicted military servants, other than those in active service, for a term of six months to two years in cases provided for in this Code, and also if a court, having regard to the circumstances of the case and the character of the person convicted, finds it possible to substitute the restriction of liberty or imprisonment for a term not exceeding two years by a service restriction for the same term.
2. A certain amount of money shall be deducted from the military pay of the person sentenced to a service restriction in favor of the State, ranging from 10 to 20 percent as determined in the judgment of court. While serving this sentence, the person sentenced may not be promoted in office or military rank, and the term of sentence is not to be included in the time-in-service for the purposes of regular promotion in military rank.
Article 59. Forfeiture of property
1. The punishment of forfeiture consists in forceful seizure of all, or a part of, property of a convicted person without compensation in favor of the State. Where a part of property is to be forfeited, a court shall specify which part is to be forfeited or name the things to be forfeited.
2. Forfeiture of property shall be imposed for grave and special grave offenses and shall only be applied in cases specifically provided for in the Special Part of this Code.
3. The list of property exempt from forfeiture shall be determined by the law of Ukraine.
Article 60. Arrest
1. The punishment of arrest consists in holding a convicted person in custody and shall be imposed for a term of one to six months.
2. A military servant shall be put under arrest in a guardhouse.
3. Arrest shall not be imposed on persons under 16 years of age, pregnant women and women having children under 8 years of age.
Article 61. Restraint of liberty
1. The punishment of restraint of liberty consists in holding a person in an open penitentiary institution without isolation from the society but under supervision and with compulsory engagement of the convicted person in work.
2. Restraint of liberty shall be imposed for a term of one to five years.
3. Restraint of liberty shall not be imposed on minors, pregnant women and women having children under 14 years of age, persons of retirement age, military servants in active service, and persons with the first or second degree disability.
Article 62. Custody of military servants in a penal battalion
1. The punishment of custody in a penal battalion shall be imposed on military servants in active service for a term of six months to two years in cases provided for in this Code, and also where a court, having regard to the circumstances of the crime and the character of the convicted person, finds it possible to substitute an imprisonment for a term not exceeding two years by a custody in a penal battalion for the same term.
2. Custody of military servants in a penal battalion shall not be applied to substitute imprisonment for the persons who previously served a sentence of imprisonment.
Article 63. Imprisonment for a determinate term
1. The punishment of imprisonment consists in confinement of a convicted person and placing him or her in a penitentiary institution for a determinate period of time.
2. Imprisonment shall be imposed for a term of one to fifteen years.
Article 64. Life imprisonment
1. The punishment of life imprisonment is imposed for special grave offenses and shall apply only in cases specifically provided for by this Code, where a court does not find it possible to impose imprisonment for a determinate term.
2. Life imprisonment shall not be imposed on persons who committed offenses under 18 years of age and to persons over 65 years of age, and women who were pregnant at the time of offense or at the time of sentencing.
Chapter XI. IMPOSITION OF PUNISHMENT
Article 65. General principles of imposition of punishment
1. A court shall impose a punishment:
(1) within the limits prescribed by a sanction of that article of the Special Part of this Code, which creates liability for the committed criminal offense;
(2) pursuant to provisions of the General Part of this Code;
(3) having regard to the degree of gravity of the committed offense, character of the guilty person, method and motives of the committed offense, nature and extend of damages, and circumstances mitigating or aggravating the punishment.
2. The punishment imposed on an offender should be adequate and sufficient to reform the offender and prevent new offenses.
3. The grounds for imposing a punishment milder than the one prescribed for a committed offense in a relevant article of the Special Part of this Code, are specified in Article 69 of this Code.
4. A punishment heavier than one prescribed for a committed offense in a relevant article of the Special Part of this Code may be imposed pursuant to Articles 70 and 71 of this Code in case of cumulative offenses and cumulative sentencing.
Article 66. Circumstances mitigating punishment
1. For the purposes of imposing a punishment, the following circumstances shall be deemed to be mitigating:
(1) surrender, sincere repentance or actively assistance in detecting the offense;
(2) voluntary compensation of losses or repairing of damages;
(3) the commission of an offense by a minor;
(4) the commission of an offense by a pregnant woman;
(5) the commission of an offense in consequence of a train of adverse personal, family or other circumstances;
(6) the commission of an offense under influence of threats, coercion or financial, official or other dependence;
(7) the commission of an offense under influence of strong excitement raised by improper or immoral actions of the victim;
(8) the commission of an offense in excess of necessary defense;
(9) undertaking a special mission to prevent or uncover criminal activities of an organized group or criminal organization, where this has involved committing an offense in any such case as provided for by this Code;
2. When imposing a punishment, a court may find circumstances, other than those specified in paragraph 1 of this Article, to be mitigating.
3. If any of the mitigating circumstances is specified in an article of the Special Part of this Code as an element of an offense, that affects its treatment, a court shall not take it into consideration again as a mitigating circumstance when imposing a punishment.
Article 67. Circumstances aggravating punishment
1. For the purposes of imposing a punishment, the following circumstances shall be deemed to be aggravating:
(1) repetition of an offense or recidivism;
(2) the commission of an offense by a group of persons upon prior conspiracy (paragraph 2 or 3 of Article 28);
(3) the commission of an offense based on racial, national or religious enmity and hostility;
(4) the commission of an offense in connection with the discharge of official or public duty by the victim;
(5) grave consequences caused by the offense;
(6) the commission of an offense against a minor, an elderly or helpless person;
(7) the commission of an offense against a woman who, to the knowledge of the culprit, was pregnant;
(8) the commission of an offense against a person who was in a financial, official or other dependence on the culprit;
(9) the commission of an offense through the use of a minor, a person of unsound mind or mentally defective person;
(10) the commission of an especially violent offense;
(11) the commission of an offense by taking advantage of a martial law or a state of emergency or other extraordinary events;
(12) the commission of an offense by a generally dangerous method;
(13) the commission of an offense by a person in a state of intoxication resulting from the use of alcohol, narcotic, or any other intoxicating substances;
2. Depending on the nature of an offense committed, a court may find any of the circumstances specified in paragraph 1 of this Article, other than those defined in subparagraphs (2), (6), (7), (9), (10), and (12), not to be aggravating, and should provide the reasons for this decision in its judgment.
3. When imposing a punishment, a court may not find any circumstances, other than those defined in paragraph 1 of this Article, to be aggravating.
4. If any of the aggravating circumstances is specified in an article of the Special Part of this Code as an element of an offense, that affects its treatment, a court shall not take it into consideration again as an aggravating circumstance when imposing a punishment.
Article 68. Imposition of punishment for unconsummated criminal offense and offense committed in complicity
1. For the purposes of imposition of punishment for an unconsummated criminal offense, a court, while being guided by Articles 65-67 of this Code, shall consider the degree of gravity of a person’s act, the degree of consummation of the criminal intent, and the reasons for which the offense was not consummated.
2. For the purposes of imposition of punishment upon accomplices in a criminal offense, a court, while being guided by Articles 65-67 of this Code, shall take into account the nature and the degree of each person’s participation in the criminal offense.
Article 69. Imposition of a punishment milder than prescribed by the law
1. In presence of several circumstances mitigating the punishment and significantly decreasing the degree of gravity of the offense committed, having regard to the character of an offender, a court may, by providing the reasons for its judgment, impose, for a specially grave, grave or medium grave offense, a primary punishment lower than the lowest threshold prescribed by a sanction of an article in the Special Part of this Code, or change to another, milder type of primary punishment, which is not prescribed by a sanction of the article concerned with this offense. In this case, the court may not impose a punishment lower than the lowest threshold prescribed for this type of punishment in the General Part of this Code.
2. Based on the grounds specified in paragraph 1 of this Article, a court may decide not to impose an additional punishment, which is defined as a mandatory punishment by a sanction of an article in the Special Part of this Code.
Article 70. Imposition of punishment for cumulative criminal offenses
1. In event of cumulative criminal offenses, a court, having determined the punishment (both primary and additional) for each offense, shall impose a final punishment by way of merging milder punishment into a havier one, or by way of full or partial adding up of imposed punishments.
2. In adding up punishments, the final cumulative punishment shall be within the limits prescribed by that sanction of an article in the Special Part of this Code, which provides for a heavier punishment. Where at least one of the criminal offences is an intentional grave or special grave offense, the court may impose a final cumulative punishment within the maximum term provided for this kind of punishment in the General Part of this Code. Where life imprisonment is imposed for at least one of the criminal offenses committed, the final cumulative punishment shall be determined by way of merging milder punishments into life imprisonment.
3. A primary cumulative punishment may be supplemented by additional punishments imposed by a court for criminal offenses of which a person was convicted.
4. A punishment shall be imposed under the rules set out in paragraphs 1 to 3 of this Article where, after a sentence in the case was passed, it is established that the sentenced person is guilty of yet another criminal offense committed before such previous sentence was passed. In this case, the punishment that has been fully or partially served under the previous sentence shall be merged into the term of the final punishment pursuant to the rules set out in Article 72 of this Code.
Article 71. Imposition of punishment by cumulating sentences
1. Where a convicted person commits a new crime after the sentence was passed but before the full term has been served, a court shall, fully or partially supplement the new sentence with the unexpired term of the previous sentence.
2. In adding punishments through cumulation of sentences, the total term of punishment may not exceed the maximum term prescribed for this kind of punishment in the General Part of this Code. In cumulating punishments of imprisonment, the final term shall not exceed fifteen years, and where at least one of the offenses is a special grave offense, the total term may exceed fifteen years but should not exceed twenty five years. In cumulating punishments of life sentence or any milder punishments, the total term of the final punishment imposed through cumulation of sentences shall be determined by way of merging any milder punishments into life imprisonment.
3. Any additional punishment imposed at least in one of the sentences or an unserved term of any additional punishment under a previous sentence shall be added to the final primary punishment imposed through cumulation of sentences.
4 The final punishment imposed through cumulation of sentences shall be longer than the punishment imposed for any new criminal offense and also the unserved term of any previous sentence.
5. Where a convicted person commits two or more criminal offenses after the sentence was passed but before the full term has been served, a court shall impose punishments for these new offenses under rules set out in Article 70 of this Code, and then fully or partially add the unexpired term of the previous sentence to the final punishment determined by way of cumulation of sentences within the limits prescribed in paragraph 2 of this Article.
Article 72. Rules of adding up punishments and merging previous terms
1. In adding up punishments for cumulative offenses and cumulative sentences, a milder type of punishment is merged into a heavier punishment based on the following proportions:
(1) one day of imprisonment equals to:
(a) one day of custody in a penal battalion for military servants, or one day of arrest;
(b) two days of restraint of liberty;
(c) three days of service restriction for military servants, or three days of correctional labor;
(d) eight hours of community service;
(2) one day of custody in a penal battalion for military servants, or one day of arrest custody equals to:
(a) two days of restraint of liberty;
(b) three days of service restriction for military servants, or three days of correctional labor;
(3) one day of restraint of liberty equals to three days of service restriction for military servants, or three days of correctional labor.
(4) one day of restraint of liberty of arrest equals to eight hours of community service.
2. In imposing a punishment through cumulation of offenses or sentences, where the punishment is to be correctional labor or service restrictions for military servants, only the terms of these punishments shall be added up. Any deductions from salaries of a convicted person shall not be added up and shall be calculated for each sentence separately.
3. Primary punishments of a fine, or deprivation of the right to occupy certain positions or engage in certain activities, when imposed as aggregate sentences for an aggregate of crimes, do not merge and shall be served separately.
4. Additional punishments of various types shall always be served separately.
5. A court shall merge the pretrial detention into the term of punishment, in case of sentencing to imprisonment, on a day for day bases or pursuant to the rules set out in paragraph 1 of this Article. In imposing punishments not specified in paragraph 1 of this Article, a court may take into account the pretrial detention and mitigate the punishment or discharge the convicted person from serving it.
Article 73. Calculation of terms of punishment
The terms of punishment shall be calculated in years, months and hours. In case of substituting, adding up or merging of pretrial detention, the terms of punishment may be calculated in days.
Chapter XII. DISCHARGE FROM PUNISHMENT AND FROM SERVING IT
Article 74. Discharge from punishment and from serving it
1. Discharge of a convicted person from punishment or from further serving of punishment, substitution of an imposed punishment by a milder punishment or mitigation of punishment, except for discharge from punishment or mitigation of punishment on the grounds of the Law of Ukraine on Amnesty or an act of pardon, may only be exercised by court in cases prescribed by this Code.
2. A person convicted of acts made no longer punishable by law shall be immediately discharged from punishment imposed by a court.
3. A punishment imposed on a convicted person, which is heavier than the sanction of a new law, shall be lowered to the maximum threshold of punishment prescribed by such sanction.
4. A person who committed a minor criminal offense or medium grave offense may be discharged from punishment upon a judgment of court, if the court is satisfied that, due to good conduct and diligent work demonstrated by this person at the time of proceedings, he/she shall not be treated as socially dangerous.
5. A person may also be discharged from punishment by a judgment of court on the grounds provided for in Article 49 of this Code.
Article 75. Discharge on probation
1. Where, in imposing a punishment of correctional labor, service restriction for military servants, restraint of liberty, or imprisonment for a term not exceeding five years, a court, having regard to the gravity of an offense, the character of the culprit and other circumstances of the crime, finds that the convicted may be reformed without serving the punishment, it may order a discharge on probation.
2. In this case, the court shall order to discharge the convicted person from serving the sentenced imposed on the condition that, during the probation period, this person commits no further criminal offenses and complies with the obligations imposed on him or her.
3. A probation period shall be from one to three years.
Article 76. Obligations imposed on a person discharged on probation
1. In case of discharge on probation, a court may impose the following obligations on the convicted person:
(1) apologize to a victim publicly or in any other way;
(2) not leave outside Ukraine for permanent residence without a permission of criminal enforcement authorities;
(3) notify criminal enforcement authorities of any change in the place of residence, employment or studies;
(4) regularly register with criminal enforcement authorities;
(5) undergo medical treatment for alcoholism, drug addiction, or any disease which poses threat to health of other persons.
2. The conduct of such convicted person shall be monitored by penal enforcement authorities at the place of his/her residence, and the conduct of military servants shall be monitored by commanders of military units.
Article 77. Imposition of additional punishments in case of discharge from primary punishment on probation
In case of discharge on probation, additional punishments may be imposed, such as fine, deprivation of the right to occupy certain positions or engage in certain activities, and revocation of a military or special title, rank, grade or qualification class.
Article 78. Legal consequences of discharge on probation
1. Upon the expiry of a probation period, a convicted person, who complied with obligations imposed on him or her by a court and committed no further criminal offenses shall be discharged from the punishment imposed on him or her by a court.
2. If a convicted person fails to comply with obligations imposed on him or her, or regularly commits offenses that entail administrative penalties and demonstrate his/her unwillingness to reform, a court shall send the convicted person to serve the imposed sentence.
3. If a convicted person commits another crime while on probation, a court shall impose a punishment on him or her pursuant to Articles 71 and 72 of this Code.
Article 79. Discharge on probation for pregnant women and women having children under seven years of age
1. Where a restraint of liberty or imprisonment is imposed upon pregnant women or a women having children under seven years of age, except for the persons sentenced to imprisonment for a term over five years for grave or special grave offenses, a court may discharge such persons from both primary and additional punishments on probation for a period of leave granted by law to women in view of pregnancy, childbirth and until the child attains seven years of age.
2. Where pregnant women or women having children under 7 years of age are discharged on probation, a court may impose upon a convicted woman any such obligation as provided for by Article 76 of this Code.
3. The conduct of the convicted persons shall be monitored by criminal enforcement authorities.
4. Upon the expiry of a probation period, depending on the conduct of the convicted woman, a court shall discharge her from punishment or send her to serve the imposed sentence.
5. Where a convict discharged on probation relinquishes her child, resigns the child to a children’s home, neglects her duty to take care of the child, fails not comply with the obligations imposed upon her by a court or regularly commits offenses that entail administrative penalties and demonstrate her unwillingness to reform, a court, on a motion of the monitoring authority, shall refer such convicted woman to serve her sentence imposed by a court.
6. Where a convicted woman commits another offense while on probation, a court shall impose a punishment on her pursuant to Articles 71 and 72 of this Code.
Article 80. Discharge from serving a sentence due to expiry of limitation periods for enforcement of judgment
1. A person shall be discharged from serving his/her sentence, if it was not enforced within the following periods of time elapsing from the date on which the judgment came into force:
(1) two years for a sentence lesser than the restraint of liberty;
(2) three years for a sentence of restraint of liberty or imprisonment imposed for a minor offense;
(3) five years for a sentence of imprisonment imposed for a medium grave offense and also a sentence of imprisonment for a term up to five years imposed for a grave offense;
(4) ten years for a sentence of imprisonment for a term over five years imposed for a grave offense, and also a sentence of imprisonment for a term up to ten years imposed for a special grave offense;
(5) fifteen years for a sentence of imprisonment for a term over ten years imposed for a special grave offense.
2. Periods of limitations for additional punishments shall depend on the primary punishment imposed in a judgment of court.
3. Limitation periods shall be suspended if a convicted person avoids serving his/her sentence. In such cases, limitation periods shall resume on the date the convicted person appeared to continue to serve his/her sentence or on the day of his/her apprehension. In this case, the limitation periods provided for in subparagraphs (1) to (3) of paragraph 1 of this Article shall be doubled.
4. Limitation periods shall be suspended, if, prior to the expiry of periods provided for in paragraphs 1 to 3 of this Article, a convicted person commits another medium grave offense, grave offense or special grave offense. In this case, the limitation period shall begin on the date of the new criminal offense controls for the commencement of a limitation period.
5. A court shall decide any issues related to the application of limitation periods to a person sentenced to life imprisonment. If the court finds it impossible to apply limitation period, the life imprisonment shall be substituted by imprisonment.
6. No limitation periods shall apply where a person was convicted for criminal offenses against peace and security of mankind as provided for by Articles 437 to 439 and 442 of this Code.
Article 81. Parole
1. Parole may be applied to persons who serve their sentences of correctional labor, or service restrictions for military servants, or restraint of liberty, or custody of military servants in a penal battalion, or imprisonment. A person may also be fully or partially paroled from serving his/her additional punishment.
2. Parole may be applied, if a sentenced person displays decent behavior and diligence in work as a proof of his/her reformation.
3. Parole may be applied after a sentenced person has actually served:
(1) not less than one-half of the term imposed by a court for a minor or medium grave offense, and also for a reckless grave offense;
(2) not less than two-thirds of the term imposed by a court for an intended grave offense or reckless special grave offense, and also where that person had previously served a sentence of imprisonment imposed for an intended offense but committed another intended offense before the conviction was canceled or revoked and had been sentenced for that offense to imprisonment;
(3) not less than three quarters of the term imposed by a court for an intended special grave offense, or of the term imposed on a person who had been previously paroled but committed another intended offense during the remaining part of the sentence;
4. Where a paroled person commits another offense during the remaining part of the sentence, a court shall impose a punishment under the rules provided for by Articles 71 and 72 of this Code.
Article 82. Commutation of the remaining part of a sentence
1. A court may commute the remaining part of a sentence of restraint of liberty or imprisonment. In this case, a more lenient punishment shall be imposed within the terms provided for by the General Part of this Code with regard to a given type of punishment and may not exceed the remaining part of the original sentence.
2. Where the remaining part of a primary sentence is commuted, the sentenced person may also be discharged from the additional punishment of deprivation of the right to occupy certain positions or engage in certain activities.
3. Commutation of the remaining part of a sentence may be applied if the sentenced person displays signs of rehabilitation.
4. The remaining part of a sentence may be commuted after a sentenced person has actually served:
(1) not less than one-third of the term imposed by a court for a minor or medium grave offense, and also for a reckless grave offense;
(2) not less than one-half of the term imposed by a court for an intended grave offense or reckless special grave offense, and also where that person had previously served a sentence of imprisonment imposed for an intended offense but committed another intended offense before the criminal record was canceled or revoked and had been sentenced for that offense to imprisonment;
(3) not less than two-thirds of the term imposed by a court for an intended special grave offense, or of the term imposed on a person who had been previously paroled but committed another intended offense before the expiry of the remaining part of his/her sentence;
5. Persons, whose sentence was commuted, may be paroled under rules provided for by Article 81 of this Code.
6. If a person commits another offense while serving a commuted sentence, a court shall add the remaining part of the commuted sentence to the punishment imposed for any new offense according to the rules provided by Articles 71 and 72 of this Code.
Article 83. Discharge from punishment for pregnant women and women with children under three years of age
1. Women sentenced to the restraint of liberty or imprisonment, who become pregnant or give birth to a child while serving their sentences, except women sentenced to imprisonment for a term over five years for intended grave or special grave offenses, may be discharged, by a court, from serving their sentences for a period of time within which a women may enjoy her maternity leave, in accordance with the law, in connection with her pregnancy, child birth and until the child attains three years of age.
2. Discharge from serving a sentence shall apply to any sentenced female who has a family or relatives, who agree to live with her, or any sentenced female who is able to independently provide proper conditions for raising of her child.
3. The conduct of such women shall be monitored by a local criminal enforcement authority.
4. When the child attains three years of age or if the child dies, a court may discharge the sentenced female from serving her sentence, or commute her sentence, or order that she should continue to serve her original sentence, depending on her conduct. In case of ordering the continued service of sentence, the court may fully or partially include the period, during which the sentence female was released from serving her sentence, in the term of her sentence.
5. Where a sentenced female, who was discharged from serving her sentence, abandons her child, or places it in an orphanage, or disappears from the place of residence, or refuses to raise or take care for her child, or regularly commits wrongdoings that involve administrative penalties and demonstrate her unwillingness to reform, a court may, upon a motion of the control authority, order that the sentenced female should continue to serve her original sentence.
6. Where a sentenced female commits another criminal offence while being discharged from serving her sentence, a court shall impose a punishment on her pursuant to the rules provided for by Articles 71 and 72 of this Code.
Article 84. Discharge on medical grounds
1. A person shall be discharged from punishment, if he/she develops a mental disease while serving his/her sentence, which renders him/her incapable of realizing his/her actions (or omissions) or controlling them. Such person may be subject to compulsory medical measures pursuant to Articles 92 to 95 of this Code.
2. A person, who develops a serious illness after commission of a criminal offense or imposition of a sentence, which precludes him/her from serving his/her sentence, may be discharged from punishment or further service. During consideration of any such matter, a court shall take into account the gravity of the offense committed, the nature of the disease, the character of the offender, and other circumstances of the case.
3. Military servants sentenced to service restrictions, arrest or custody in a penal battalion, who are found unfit to continue military service due to health problems, shall be released from punishment.
4. Where persons, refereed to in paragraphs 1 and 2 of this Article, recover, they shall be ordered to continue to serve their sentences, provided the limitation periods, prescribed by Articles 49 or 80 of this Code, have not expired, or where no other grounds for discharge are available. For these purposes, the period of time, within which any compulsory treatment measures were applied, shall be included in the term of sentence pursuant to the rules provided for by paragraph 5 of Article 72 of this Code, where each day of compulsory treatment counts as one day of imprisonment.
Article 85. Discharge from punishment on the basis of the Law of Ukraine on amnesty or an act of pardon
A sentenced person may be fully or partially discharged from his/her primary or additional punishment or may have his/her sentence or the remaining part of it commuted on the basis of the Law of Ukraine on amnesty or an act of pardon,
Article 86. Amnesty
1. Amnesty shall be announced in a Law of Ukraine in regard of a certain category of persons.
2. The Law on amnesty may fully or partially discharge offenders from criminal liability or punishment.
3. The Law on amnesty may commute a sentence or the remaining part of a sentence.
Article 87. Pardon
1. Pardon is granted by the President of Ukraine in regard of a particular individual.
2. An act of pardon may substitute a life sentence imposed by a court by imprisonment for a term not less than twenty five years.
Chapter XIII. CONVICTION
Article 88. Legal consequences of conviction
1. A person shall be held to have a conviction from the date on which the judgment of guilty enters into force and until the conviction is canceled or revoked.
2. Conviction shall have legal implications in case of commission of a new criminal offense, and also other cases provided for by Ukrainian laws.
3. Persons convicted without imposition of any sentence, or discharged from punishment, or those who have served their sentence for any criminal offense the criminality and punishability of which was subsequently repealed by law, shall be held to have no conviction.
4. Rehabilitated persons shall be held to have no conviction.
Article 89. Cancellation of conviction
The following person shall be held to have no conviction:
(1) persons sentenced under Article 75 of this Code, if they commit no further offenses during the probation period, and the probation is not revoked during the prescribed period for any other reasons provided for by law. If the term of any additional punishment exceeds the term of probation, a person shall be held to have no conviction after completing to serve such additional punishment;
(2) women sentenced under Article 79 of this Code, if they commit no further offenses during the probation period, and are not ordered to continue to serve their sentences imposed by a court after the probation period. Where a convicted female was not discharged from an additional punishment and its term exceeds the term of the primary punishment, she shall be held to have no conviction after completing to serve such additional punishment;
(3) persons sentenced to the deprivation of the right to occupy certain positions and engage in certain activities, after completing to serve this punishment;
(4) persons who have completed to serve their sentence of service restrictions for military servants, or custody in a penal battalion, or those who were paroled in respect of such offenses, and also military servants who have served their punishment at a guardhouse instead of arrest;
(5) persons sentenced to a fine, or community service, or correctional labor, or arrest, they commit no further offenses within one year from the date on which they completed to serve their sentence (primary or additional);
(6) persons sentenced to restraint of liberty, or sentenced to imprisonment for a minor offense, if they commit no further offenses within two years from the date on which they completed to serve their sentence (primary or additional);
(7) persons sentenced to imprisonment for a medium grave offense, if they commit no further offenses within three years from the date on which they completed to serve their sentence (primary or additional);
(8) persons sentenced to imprisonment for a grave offense, if they commit no further offenses within six years from the date on which they completed to serve their sentence (primary or additional);
(9) persons sentenced to imprisonment for a special grave offense, if they commit no further offenses within eight years from the date on which they completed to serve their sentence (primary or additional);
Article 90. Calculation of periods for the cancellation of conviction
1. The periods of the cancellation of conviction shall be calculated from the date of completion of a primary or additional sentence.
2. The cancellation period shall include the time during which the sentence was not enforced, provided that the limitation period was not interrupted. If a sentence was not enforced, the conviction shall be canceled upon expiration of limitation periods for enforcement of a sentence.
3. If a person is paroled, the cancellation period shall be calculated from the date of discharge (from serving any primary or additional sentence) on parole.
4. If any unserved portion of a sentence is commuted, the cancellation period shall be calculated from the date of completion of the commuted sentence (primary or additional).
5. If a person who completed his/her sentence, commits another offense before the expiration of the period for cancellation of conviction, this period shall be suspended and recalculated. In any such cases, the cancellation periods shall be calculated separately for each criminal offense, after the actual completion of the sentence (primary and additional) imposed for the last committed offense.
Article 91. Revocation of conviction
1. If a person, who completed his/her sentence of restraint of liberty or imprisonment, displays good conduct and diligent work as a proof of his/her rehabilitation, a court may revoke his/her conviction before the expiration of periods described in Article 89 of this Code.
2. Conviction may only be revoked after the expiration of at least one-half of the cancellation period provided for by Article 89 of this Code.
3. The procedures related to revocation of conviction shall be established in the Criminal Procedure Code of Ukraine.
Chapter XIV. COMPULSORY MEDICAL MEASURES AND COMPULSORY TREATMENT
Article 92. Definition and purpose of compulsory medical measures
Compulsory medical measures shall mean an outpatient psychiatric assistance, placement of a person, who committed a socially dangerous act that involves elements of any act described in the Special Part of the Code, in a special treatment institution for the purpose of his/her compulsory treatment, and also prevention of this person from committing any socially dangerous acts.
Article 93. Persons subjected to compulsory medical measures
Compulsory medical measures may be applied by a court to persons who:
(1) committed any socially dangerous acts in condition of insanity;
(2) committed a criminal offense in condition of partial insanity
(3) committed a criminal offense crime but developed insanity before a sentence was pronounced or while serving a sentence.
Article 94. Types of compulsory medical measures
1. A court may impose the following compulsory medical measures depending on the seriousness of a mental condition, the gravity of an act committed, and the degree to which the offender is dangerous to himself or others:
(1) compulsory outpatient psychiatric assistance;
(2) hospitalization in a regular-security mental institution;
(3) hospitalization in a reinforced-security mental institution;
(4) hospitalization in a high-security mental institution;
2. A court may order compulsory outpatient psychiatric assistance in respect of a mentally sick person who committed an socially dangerous act, if the condition of the person does not necessitate inpatient treatment in a mental institution.
3. A court may order hospitalization in a regular-security mental institution in respect of a mentally sick person whose mental condition and the nature of his/her socially dangerous act necessitates custody in a mental institution and compulsory treatment.
4. A court may order hospitalization in a reinforced-security mental institution in respect of a mentally sick person who committed a socially dangerous act that involved no trespass against lives of other persons and whose mental condition is not dangerous to the public but necessitates custody in a mental institution and treatment in conditions of reinforced security.
5. A court may order hospitalization in a high-security mental institution in respect of a mentally sick person who committed a socially dangerous act that involved a trespass against lives of other persons and whose mental condition and the nature of his/her socially dangerous act pose an increased hazard to the public and necessitate custody in a mental institution and treatment in conditions of high security.
6. If compulsory medical measures are found not to be necessary or are discontinued, a court may place a mentally sick person under care of relatives or custodians on condition of a compulsory medical follow-up.
Article 95. Continuation, change or discontinuation of compulsory medical measures
1. Continuation, change or discontinuation of compulsory medical measures shall be ordered by a court upon a motion of a representative of the mental institution (psychiatrist), who provides psychiatric assistance to a person, together with am appended opinion of a panel of psychiatrists, which states the reasons for continuation, change or discontinuation of any compulsory measures.
2. Persons subjected to compulsory medical measures shall be examined at least once every six months by a panel of psychiatrists who shall determine any reasons that may justify a court motion seeking discontinuation or change of any such measures. If no reasons are found, which justify the discontinuation or change of a compulsory medical measures, a representative of a mental institution (psychiatrist) who provides psychiatric assistance to the person, shall file an application with a court, together with an opinion of the panel of psychiatrists, which provides reasons for continuation of compulsory medical measures. If compulsory medical measures need to be extended beyond a six-month period, a representative of a mental institution (psychiatrist) who provides psychiatric assistance to the person, shall file with a local court an application for extension of compulsory measures. The application shall be accompanied with an opinion of a panel of psychiatrists, which provides reasons for the need to continue psychiatric assistance to the person. Every further extension of compulsory medical measures may not exceed six months.
3. Where compulsory medical measures are discontinued due to improvement of mental condition of a person, a court may place him/her under care of relatives or custodians on condition of a compulsory medical follow-up.
4. Where compulsory medical measures are discontinued due to recovery, persons, who committed any offense in state of sanity but developed insanity before a sentence was pronounced, shall be liable to punishment on general grounds, and persons, who developed insanity while serving a sentence, shall continue to serve the sentence.
Article 96. Compulsory treatment
1. Compulsory treatment may be ordered by a court in respect of persons, who committed offenses and have any disease dangerous to the health of others, irrespective of the punishment imposed on them.
2. In case of imprisonment or restraint of liberty, treatment shall be provided at the place of service. In case of any other type of punishment, treatment shall be provided in special treatment institutions.
BIBLIOGRAPHY:
A. Principal:
1. Law Dictionary: Mass Market Edition (Barron’s Legal Guides), Stephen H. Gifis.
2. Universal Human rights in Theory and Practice, Jack Donnelly.
3. From Modernization to Globalization. Social perspectives on International Development // J. Timons, Amy Hite. – Blackwell Publishers, Oxford, UK, 1999.
4. Lon L. Fuller, The Morality of Law (1964, 2nd ed. 1969). See also Barnabas D. Johnson, Rule of Law: Ten Principles Governing Law and Law-Making, which summarizes and builds on Fuller’s work.
5. Lecture.
B. Sites:
http://www.hg.org/law-books.html;
http://www.campusbooks.com/books/law/.
The methodical instruction has been worked out by: Sopiha M.O.
The methodical instruction was discussed at the Chair sitting «27» August 2013
Minute № 3
The Head of the Department of Medical Law Rogalskyy I.O.
TERNOPIL 2013
