INTERPRETATION OF THE TERM «CRITICALLY IMPORTANT INFRASTRUCTURE OBJECT» IN THE QUALIFICATION OF CRIMINAL OFFENSES
Authors:   National Academy of the Security Service of Ukraine, Ivanov Y. 
Published: May 2024

Currently, the term «critically important infrastructure object» in the articles of the Special Part of the Criminal Code of Ukraine occurs in part two and note of Article 259 and in note of Article 360. At the same time, its proper interpretation in law enforcement practice is very important for the correct qualification of the relevant actions of the person and for the appointment of punishment adequate to their social danger. This highlights the need for a comprehensive essential and substantive characteristics of the term based on current legislation. The purpose of the article is to develop, based on the analysis of current legislation, a clear understanding of the essence and meaning of the term «critically important infrastructure object» in order to ensure the correct application of criminal law norms in which this term is used. Critical infrastructure objects need enhanced protection because their decommissioning, or even a partial disruption, can have devastating consequences not only for the state’s economy but also for national security in general. Therefore, the state system of protection of critical infrastructure should be built in such a way as to protect these objects as much as possible from threats, including any illegal encroachments. To do this, the entire available arsenal of tools should be used, including the tools of criminal law. Ukraine, developing its own state system of critical infrastructure protection, focuses mainly on the most significant experience in this area gained by the United States and the European Union. At the same time, the European Union is the subject of special attention also because the Constitution of our state enshrines a strategic course for full membership in this integration entity. In the absence of a basic legislative act that would regulate all aspects of the functioning of the state system of critical infrastructure protection, the interpretation of the term «critically important infrastructure object» used in certain criminal law norms, which is identical to the term «critical infrastructure object», is based, first of all, on the provisions of the current Law of Ukraine «On Basic Principles of Cyber Security of Ukraine», but it is also necessary to refer to the bylaws of the Cabinet of Ministers of Ukraine and the NBU adopted for its implementation. In practice, when qualifying the actions of a person under part two of Article 259 of the Criminal Code of Ukraine to establish the belonging of the object of knowingly false information to critical infrastructure, it is necessary to determine whether this object is included in the national list of critical infrastructure objects, or to one of the nine sectoral lists, or to the consolidated list of banks, which are referred by the NBU to critical infrastructure in the banking system of Ukraine. In this case, the presence of the object in at least one of these lists is a necessary and sufficient condition. It is obvious that the same algorithm of actions is suitable for use in establishing the presence of serious consequences of intentional damage or destruction of the telecommunications network, when a person’s actions are qualified under part three of Article 360 of the Criminal Code of Ukraine, taking into account paragraph 2 of the note to this article. However, in order to imperatively consolidate this approach, it is proposed to place in the note to this article, by analogy with Article 259 of the Criminal Code of Ukraine, a reference to the Law of Ukraine «On Basic Principles of Cyber Security of Ukraine».