Kvasha Oksana, Gatselyuk Vitaliy, Peremot Serhiy. Introducing the «Kingpin» Definition to the Criminal Law of Ukraine: A Step to Critical Appraisal
Recently the Ukrainian legislators are persistently attempt to alter the concept of accessory and accomplice criminal liability by making the person’s «kingpin» standing criminally liable; the other proposed novelty is to distinguish and define a new and separate form of the criminal activity – a criminal association. Analysis of the respective bills both being submitted during the 6th Convocation of the Parliament and those submitted to the acting one confirms the conclusion that they hardly conforms to the well-established Criminal Code instruments and institutions, particularly in respect of the criminal liability grounds and principle of legal certainty.
Some initial efforts to criminalize ‘kingpin’ standing were undertaken by national legislators early in 2012, in the context of extension liability for the crime privity. Bill No. 10506 (On the Criminal Code amendment with the provisions on the «kingpin» criminal liability and criminal liability of those living a criminal life) has for the first time made it criminally liable the pure fact of a criminal organization membership, escalating liability for those boring the «kingpin» titularity. The Bill has been shelved, and thus newer adopted or signed into a law.
Later, in 2015, under the current convocation of the Parliament, a new concurrent Bill No. … has been submitted. The Bill was based on the same theoretical underpinning as the previous one, making it criminally liable the pure fact of a person’s «criminal occupation».
However, a critical analysis of the Bill makes a number of its flaws and drawbacks clear and evident.
The core provisio of the Bill … is to amend the Article 255 of the Criminal Code with the new one making, as it was noticed above, a criminally liable of any sort of involvement into criminal undertaking activities. However, as it may be opined, even the currently-in-force edition of A255 clearly provides for the liability of a person in case it acts as an accessory or accomplice of the crime. At the same time, one should note the key difference between the provisions proposed by the Bill and those of current A255. The former provides for criminal liability in case of creation of, or participation (membership) to the «criminal undertaking».
However, it is also clear that for the purposes of A255 liability, a perpetrators should establish alliance with the clear intent to commit a grave crime.
In turn, at the Bill there no such clearly and unequivocally this defined mens rea requirement.
Even further, the envisaged by the Bill concept of actus reus does not require commitment of any crime for the benefit of the established criminal undertaking or by the respective person by itself.
Another point of concern in respect of the Bill novelties is the vagueness of its wording and terminology. Though the Bill attempts to provide for certain clarification of its elements, this task was certainly not achieved with the acceptable outcome. Consequently, the Bill would not pass the test of the legal certainty and predictability. This also leaves no room for the Bill to be compatible with the requirements of Article 6 of the ECHR and relevant ECtHR case-law concerned the with the guaranties of the right to fair trial.
Abroad (for example in criminal legislation of some of the states of US) a criminal liability for the maleficent undertaking membership do exists. However, for the person to be prosecuted, one should be directly attached (though as accessory or accomplice) to the illegal activities of respective undertaking or its other members.
Hence, the Authors of the Article are ready to delivers some base steps to be done in order to get over the legislative and speculative obstacles on the «kingpin» standing criminalization.
First, a clear identification for the meaning and notion of the terminology, embedded to the legislative text, should be provided. Secondly, a clear theoretical underpinning should lay
at the ground of the concept of «criminal undertaking membership» liability envisaged by the Bill. Here the proper benchmark for the development would be the widely-shared in the scientific community opinion that the membership in a sort of the criminal undertaking should be culpable (and thus subject to prosecution) as soon as the person clearly and unequivocally participates at the criminal activities of the respective undertaking or in some other way supports or shares its tasks and ideas. The same is true for the liability of the «kingpin» as an instigator or direct mastermind or the criminal activities of others.
This e-mail message may contain confidential and/or privileged material. Delivery of this message to any person other than the intended recipient(s) does not in any way waive privilege or confidentiality. The information transmitted is intended only for the person or entity to whom or which it is addressed. Unauthorized use, disclosure or copying is strictly prohibited.
The sender accepts no liability for the proper transmission of this communication or for any delay in its receipt.
Key words: criminal liability basis, accompliceship, ‘kingpin’, legal certainty, rule of law, criminalization.