Criminal law protection of critical infrastructure objects against subversive encroachments

Abstract

The norms of domestic and foreign legislation, which establish a criminal law prohibition of encroachments on objects of critical importance for the economy, defense and life support of the population for subversive purposes, have been studied. With the help of the historical and legal method, an analysis of the criminalization of such socially dangerous acts as diversion, sabotage, and vandalism in Ukraine during the last century has been carried out. Moreover, using the comparativist method, the criminal law norms of France, Germany and the USA on responsibility for sabotage have been examined. At the same time, the main attention paid to the subject and forms of committing the corresponding socially dangerous acts, as well as the moment from which the crime is considered finished.

It has been established that the current legislation of Ukraine has a number of shortcomings and gaps in the criminal law protection of critical infrastructure objects from subversive encroachments. In particular, criminal liability is established for attempts to damage objects important to the state, and not for their actual damage, that is, real socially dangerous consequences (sabotage itself) require additional qualifications. The criminal law norm provided for in Art. 113 of the Criminal Code of Ukraine, is formulated with violation of the principle of proportionality of the social danger of the act and the severity of the punishment provided for its commission. The dispositively defined subject of diversion contains the term “national economy”, which has lost its legal basis, as well as a synecdoche (the use of the plural instead of the singular). On the objective side, the composition of sabotage, defined in Art. 113 of the Criminal Code of Ukraine, does not criminalize illegal inaction, as well as actions aimed at disorganization, slowing down or making impossible the operation of such facilities important to the state.

On this basis, it has been proposed to formulate the second form of sabotage (Article 113 of the Criminal Code of Ukraine) in the following wording: “Destruction or damage to a critical infrastructure object by arson, explosion or other means with the aim of weakening the state”, as well as to supplement the Criminal Code of Ukraine with an amendment on sabotage, which is understood as “actions aimed at weakening the state, actions or decision-making aimed at destabilizing or making impossible the intended functioning of a critical infrastructure object, in the absence of signs of diversion”.