SOME APPLIED TEMPORAL ASPECTS OF NATIONAL CRIMINAL LAW JURISDICTION (ON THE EXAMPLE OF LIABILITY FOR FRAUD, LEGALIZATION OF THE PROCEEDS OF CRIME, TAX EVASION, DUTIES, AND MANDATORY PAYMENTS)

Abstract

Introduction. Criminal law is a relatively unstable system. For objective or subjective reasons, its provisions are often adjusted by the legislator, i.e. they are in flux. At the same time, the Constitution of Ukraine guarantees everyone the right to know their rights and obligations. Democratic standards of legal regulation require, in particular, that after amending national legislation, the state should be limited in its power to apply the novelties retrospectively, i.e., as a general rule, refrain from regulating with new provisions those social relations and assessing those legal facts (including criminal offenses) that existed before the novelties came into force. In certain cases, the state should even be deprived of such powers in general. This is emphasized in fundamental national and international legal acts. At the same time, due to the dynamism of legislation, it is not always easy for persons applying the law, as well as those who read its provisions for any purpose, to correctly and accurately extrapolate the fundamental general provisions on the temporal aspects of national criminal law jurisdiction to specific legislative provisions that have been amended, and, accordingly, the above-mentioned subjects do not always correctly decide to apply a particular version of the amended law.

The purpose of the publication is to identify the applied temporal aspects of national criminal law jurisdiction and to obtain scientifically sound results in this area. This is done on the example of the articles of the Criminal Code of Ukraine on liability for fraud, legalization of the proceeds of crime, and evasion of taxes, duties, and mandatory payments.

The study uses comparative, dogmatic, historical and systematic methods.

Summary of the main results of the study. Generally recognized sources of law point to the need for careful regulation of the temporal properties of national legislation in the part which concerns public legal liability for offenses. For example, Article 58 of the Ukrainian Basic Law states that laws and other legal acts do not have retroactive effect, except when they mitigate or cancel a person's liability. No one can be held liable for acts that were not recognized by law as offenses at the time they were committed. According to Article 11(2) of the Universal Declaration of Human Rights, no punishment shall be imposed which is heavier than that which could have been applied at the time of the commission of the crime, and Article 7(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms recognizes the inadmissibility of imposing a punishment heavier than that which was applied at the time of the commission of the criminal offense. Pursuant to Article 49(1) of the Charter of Fundamental Rights of the European Union, no penalty shall be imposed which is heavier than that which was applicable at the time of the offense. If the law establishes a lighter penalty after the commission of the offense, it shall be applied. Guided by the above generally recognized international legal norms and standards for determining the time (temporal) limits of national criminal jurisdiction, the following postulates can be recognized 1) an act is recognized as a criminal offense (crime, misdemeanor) under the law in force at the time of its commission; 2) a person is not subject to criminal liability for his or her action or inaction if at the time of commission it was not recognized as a criminal offense under the applicable law; 3) a person may not be punished (or subjected to a criminal measure restricting his or her rights and freedoms) more severely than that provided for by the law in the version in force at the time of the act qualified as a crime or criminal offense; 4) if after committing a criminal offense, the law has changed and established a less severe punishment than the one that existed at the time of the offense (in a broader interpretation, a less severe criminal law measure that restricts his or her rights and freedoms), this person is subject to the new law (its new version), which further regulates his or her criminal law status. Under certain conditions, international human rights standards do not exclude the power of the state to apply to a person a law adopted after the criminal offense has been committed. In the national legislation, the provisions of Articles 4 and 5 of the Criminal Code of Ukraine adequately meet these standards. The general rules specified in them should ensure the regulation of the application of new laws on criminal liability. However, due to their abstract nature, they are not always properly implemented in law enforcement practice. They are also not always clear to persons who are just studying criminal law. A particularly large number of problems arise (may arise) if a criminal law provision has been amended several times.

Conclusions. Based on the analysis of current and previous versions of certain articles of the Criminal Code of Ukraine (namely, Art. 190, Art. 209, Art. 212 of this law), one can see the mandatory elements which are subject to comparative analysis with a view to determining the temporal limits of criminal jurisdiction based on a new (amended, supplemented, clarified) criminal law provision. Based on its results, the categories of “new law that enhances (mitigates) criminal liability”, “new law that establishes (abolishes) criminal unlawfulness of an act”, “new law that otherwise improves (worsens) the situation of a person” become more specific.