PECULIARITIES OF DETERMINING THE TERRITORIAL LIMITS OF NATIONAL CRIMINAL JURISDICTION IN UKRAINE AND GERMANY (EXPERIENCE OF COMPARATIVE ANALYSIS)

Abstract

Introduction. For Ukraine, the European vector of development is the only and only way to improve the rule of law and mechanisms for the development of civil society, protection of human and civil rights and freedoms on its territory. The above requires studying the experience of regulating and protecting social relations used by Ukraine's partners in the European space. For example, the Federal Republic of Germany (Germany), which has been ranked high in the Rule of Law Index for many years, is traditionally a strong rule of law state and can be considered a worthy example in solving many social, economic and legal problems. In particular, the latter include determining the limits of national criminal jurisdiction, i.e. the powers of a particular state to apply, guided by domestic (national) criminal law, restrictions on the rights and freedoms of individuals and the real capabilities of agents of the same state to maintain a certain order of social relations in a certain territory. The definition of such limits is also necessary to eliminate competition between authorized agents of different subjects of international law in the performance of their law enforcement functions and administration of justice.

The purpose of this publication is to compare the methods of determining the limits of national criminal jurisdiction in the relevant legislative acts of Ukraine and Germany and to obtain scientifically sound results which will allow assessing the quality of its regulation in national criminal law. The methodological basis for this study is formed by the traditional methods of scientific knowledge (legal (dogmatic), philological and systemic methods), but above all, it is formed by the comparative (comparative, comparative legal) method.

Summary of the main results of the study. In the CC of Ukraine, the issue of the limits of national jurisdiction is regulated thoroughly, and they are provided for in Articles 6-10 of this law. Based on them, the literature distinguishes four principles of validity and effect of national legislation on criminal liability, of which the territorial principle is the priority. It establishes the spatial limits of the powers of state agents in criminal law relations, extending them to a certain territory regardless of the citizenship of the person who committed a criminal offense there. The main content of this principle is set forth in part 1 of Article 6 of the Criminal Code of Ukraine: “persons who have committed criminal offenses on the territory of Ukraine shall be subject to criminal liability under this Code”. Thus, the national criminal jurisdiction of Ukraine extends to all events that contain signs of a criminal offense and are committed within the space identified as the “territory of Ukraine”. The CC does not name the objects that make up this space. The CC of Ukraine specifies the criteria by which an offense is classified as committed within the national criminal jurisdiction: if it was started, continued, completed or terminated on the territory of Ukraine, as well as if its perpetrator or at least one of the accomplices acted on the territory of Ukraine (Article 6(2), (3) of the CC of Ukraine).  It is also worth mentioning the exceptional provision contained in its part 4 of Article 6 of the Criminal Code of Ukraine on the limitation of criminal jurisdiction, known as “diplomatic immunity”.

The German Criminal Law also contains a rule that German criminal law applies to crimes committed in Germany, which is the basis of Germany's territorial national criminal jurisdiction. As in the Ukrainian CC, the German CC does not specify certain spaces and objects to which this law applies. Interpretation of § 9 of the German Criminal Code, taking into account the provision of its § 3, allows us to conclude that German criminal jurisdiction extends to criminal offenses in the presence of any one of the following objective features (alternative objective criteria for recognizing the powers of law enforcement agencies to exercise national criminal jurisdiction): a) the socially dangerous act was committed in Germany; b) the socially dangerous consequence occurred in Germany; c) an accomplice to a criminal offense committed outside Germany committed an act in this country within the scope of his or her role.  These features can be designated as alternative objective criteria for determining the powers of law enforcement agencies to exercise national criminal jurisdiction. As we can see, in this form, the rules of Parts 2 and 3 of Article 6 of the CC of Ukraine are quite adequately correlated with these provisions of German criminal law. At the same time, the German Criminal Code also contains subjective criteria, which are required for the German national criminal jurisdiction to cover a crime. They are as follows: a) according to the perpetrator, the territory of Germany should have been the place where the result (consequence) of his criminal offense occurred; b) according to the accomplice, the territory of Germany should have been the place where the criminal offense was committed. Unlike the Criminal Code of Ukraine, regulating the limits of national criminal jurisdiction, the Criminal Code of Germany does not provide for exceptions to it, similar to those provided for in part 4 of Article 6 of the Criminal Code of Ukraine.

Conclusions. There are no fundamental differences between the regulation of the limits of national criminal jurisdiction under the laws of Ukraine and Germany. In both countries, it applies to all criminal offenses committed within the state territory (without specifying in the Criminal Code the objects that fall within it). The objective criteria for recognizing an offense as one subject to such jurisdiction are almost identical (although the Ukrainian criminal law describes them in more detail). At the same time, the Criminal Code of Ukraine does not provide for a corresponding subjective criterion (subjective criteria). Given that the criminal law of Ukraine (as well as the criminal law of Germany) pays maximum attention to the subjective side of a criminal offense (as an element of its corpus delicti), the use of a subjective criterion along with the objective one in the future to determine the limits of national criminal jurisdiction in the Criminal Code of Ukraine seems quite acceptable. Its implementation will help to clarify these limits. In addition, the comparative analysis shows that the advantage of the method used in the CC of Ukraine to determine the territorial limits of criminal law Ukraine is that it defines exceptions to it (regulation of diplomatic immunity), which makes the solution of this issue more complete.