CRIMINAL LIABILITY FOR ENFORCED DISAPPEARANCE IN CRIMINAL LAW OF UKRAINE
Authors: Marin Oleksandr 
Published: August 2022

The article is devoted to the issues of criminal liability for enforced disappearance in criminal law of Ukraine. The international legal conditionality of the appearance of this prohibition in the Criminal Code of Ukraine, its adequacy to the modern needs of combating this phenomenon as well as the compliance with the conditions of implementation of the provisions of international legal acts in the national criminal legislation are analyzed. It should be taken into account that international legal acts describe the need to criminalize socially dangerous behavior, and the form of such criminalization is chosen by states in accordance with national traditions of law-making. The article cites and analyses corpus delicti of the criminal offence provided for by Article 146-1 of the Criminal Code of Ukraine «Enforced Disappearance», which appeared in the criminal law as a result of the adoption of the Law of Ukraine «On the Legal Status of Missing Persons». Potential difficulties in applying the norm provided for by Article 146-1 of the Criminal Code of Ukraine to socially dangerous acts, cases of unjustified competition and conflict of norms are revealed. It is stated that the norm provided for by Part 1 of Article 146-1 of the Criminal Code of Ukraine, is partly special in relation to several norms provided for by other articles of the Criminal Code: Article 146 «Illegal confinement or abduction of a person»; Article 371 «Knowingly unlawful detention, compelled appearance, house arrest or taking into custody»; Article 365 «Excess of authority or official powers by a law enforcement officer»; Article 364 «Abuse of authority or office». It should be noted that before the introduction of Article 146-1 to the Criminal Code of Ukraine virtually all the behavior constituting enforced disappearance, the criminalization of which was the obligation of the Ukrainian state under the Rome Statute of the International Criminal Court and International Convention for the Protection of All Persons from Enforced Disappearance, constituted criminally prohibited behavior in accordance with the above mentioned «general» criminal law norms. The exception, in fact, is only the formal corpus delicti of indulgence, which is not covered by Article 364 of the Criminal Code of Ukraine and the introduction of which into the system of criminal offences under the current Criminal Code of Ukraine we completely approve. The article also analyses the prospects of the adoption of amendments to the Criminal Code of Ukraine, proposed in the draft Law of Ukraine «On Amendments to Certain Legislative Acts of Ukraine on the Implementation of Norms of International Criminal and Humanitarian Law», which offers to supplement the Criminal Code of Ukraine with Article 442-1 «Crimes against humanity». Thus, the Ukrainian legislator will react for the second time to its international legal obligations regarding the implementation of the norms of international humanitarian law. The following options for preventing real and potential threats in the criminal law regulation of liability for enforced disappearance are proposed: to borrow the German experience of criminal law regulation in this area of public relations as well as to adopt the law on international criminal law.