CANCELLATION OR MODIFICATION OF "SPECIAL" NORMS ON CRIMINAL LIABILITY AS A PROBLEM OF CRIMINAL LAW REGULATION

Abstract

The article clarifies the criminal legal consequences of the cancellation of "special" norms, as well as the modification of "special" norms, as a result of which a certain range of actions is deduced from their validity. Proposals for solving problems arising as a result of such legislative changes are also substantiated. On the example of the cancellation from the Criminal Code of Ukraine of articles 365-1, 423, 424 of the Criminal Code of Ukraine, which established liability for excess of official authority by the official of a legal entity of private law, abuse of authority or official position by a military official as well as modification in Art. 365 of the Criminal Code of Ukraine on the excess of official authority, as a result of which the circle of subjects of this criminal offense was limited, it is established that the cancellation of a "special" norm, as well as the modification of such norm, which led to a narrowing of the range of actions covered by it, leads to the exemption from criminal liability of all persons who committed such acts before the entry into force of such changes, despite the fact that these acts contain signs of a criminal offense provided for by the "general" norm. It has been proven that this approach corresponds to the legal positions of the European Court of Human Rights. It is substantiated that the problem of avoiding criminal liability in such cases can be solved by supplementing the Criminal Code of Ukraine with a provision that would indicate that a law that cancels or modifies "special" norms is not considered a law that cancels the criminal illegality of an act within the meaning of Article 5 of the Criminal Code of Ukraine, as well as regulations in the Criminal Procedural Code of Ukraine on the mechanism for changing the qualification of relevant acts, the procedure for re-evaluation of evidence, as well as ensuring the right to defense in such cases. It is argued that the creation of so-called "special" norms should be avoided as much as possible, and such a way of differentiating criminal responsibility can only be justified by the need to significantly reduce or significantly strengthen responsibility for a certain group of acts covered by the "general" norm.