Human infection with an infectious disease agent: analysis of constructive objective features of criminal offences

O. V.  Shamsutdinov

doi:10.32631/v.2024.3.09

O. V. Shamsutdinov Interagency Research Center on Problems of Combating Organized Crime at the National Security and Defense Council of Ukraine https://orcid.org/0000-0002-9325-9227

DOI: https://doi.org/10.32631/v.2024.3.09

Keywords: criminal law provision, venereal disease, virus, pathogen, infection, instrument of criminal offence.

Abstract

With a view to confirming the hypothesis that the ineffectiveness of criminal law provisions under Articles 130, 131, 133 of the Criminal Code of Ukraine is due to the shortcomings of their legislative design, the author analyses the definitions used by the legislator to determine the constructive objective features of criminal offences under Articles 130, 131, 133 of the Criminal Code of Ukraine. The author establishes that they are inconsistent with the terminology of healthcare regulations which should be used when qualifying encroachments on biological safety manifested in infection of a person (persons) with infectious disease agents.

The article states that current legislation does not contain any lists of incurable and venereal diseases. On this basis, it is concluded that the qualification of the relevant criminal offences is not based on the provisions of legislation, but on the previous court practice, common sense of law enforcement officers and the level of their legal awareness.

The view is supported that the indication of a virus as an instrument of criminal offences (Articles 130, 131 of the Criminal Code of Ukraine) significantly limits the criminalisation of encroachments on biological security in the form of spread of infectious diseases.

Attention is drawn to the discrepancy between the constructions of the objective side of the corpus delicti of criminal offences under Articles 130 and 133 of the Criminal Code of Ukraine, which provide for an identical mechanism of causing harm to the victim. It is established that the absence of any references in the disposition of Article 133 of the Criminal Code of Ukraine to the means of infection (live pathogen) unjustifiably delays the moment of termination of this criminal offence until the victim develops clinical manifestations of the disease.

Finally, the conclusion is made that the gradual widening of the gap between the substantive criminal law and medical law makes it increasingly difficult to qualify the infection of another person with dangerous infectious diseases and creates problems in delimiting related corpus delicti of criminal offences.

The editorial wording of the unified basic elements of a criminal offence consisting in infecting a person with a pathogen which is dangerous to his/her life is proposed.

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Author Biography

O. V. Shamsutdinov, Interagency Research Center on Problems of Combating Organized Crime at the National Security and Defense Council of Ukraine

Candidate of Law, Senior Researcher,

Department for Research on Countering Extremism, Terrorism and Their Financing (leading researcher).

References

Sukhov, Yu. O. (2022). Morbidity and mortality during wars and armed conflicts: trends and patterns. Infusion & Сhemotherapy, 4, 15–19. https://doi.org/10.32902/2663-0338-2022-4-14-19.

Pavlenko, I. V. (2016). Infection with a venereal disease: problems of qualification. National Technical University of Ukraine Journal. Political science. Sociology. Law, 1/2(29/30), 207–210.

Starko, O. (2015). The Infection with Venereal Disease: Objective Signs of Body of a Crime. History & Law Journal, 1(5), 135–138.

Yanishevska, K. D. (2020). Features of the criminal and criminological characteristics of infection with the human immunodeficiency virus or other incurable infectious disease. Juridical Scientific and Electronic Journal, 2, 351–354. https://doi.org/10.32782/2524-0374/2020-2/91.

Gutorova, N. О., Mykhailichenko, T. О., & Zabuha, Yu. Yu. (2023). Selected legal issues of epidemic safety during the war. Issues of Crime Prevention, 45, 11–23. https://doi.org/10.31359/2079-6242-2022-45-11.

Taras, M. (2013). Criminalizing HIV transmission and the rights of people living with HIV/AIDS. European Perspectives, 9, 198–206.

Brych, L. P. (2010). Crimes against health and against the safety of life and health under the legislation of Ukraine. Lviv State University of Internal Affairs.

Yanishevska, K. D., Ivakhniuk, T. V., & Savytska, I. V. (2020). To the question about the criminalization of coronavirus infection. Juridical Scientific and Electronic Journal, 8, 396–399. https://doi.org/10.32782/2524-0374/2020-8/97.

Kuzembaiev, O. S. (2020, May 15). Normative grounds for criminal liability in Ukraine for infection with the SARS-CoV-2 (COVID-19) [Conference presentation abstract]. International Scientific and Practical Conference “Legal life of modern Ukraine”, Odesa, Ukraine.

Aleksandrov, Yu. V., Andrushko, P. P., Antypov, V. I. et al. (2002). Scientific and Practical Commentary to the Criminal Code of Ukraine (S. S. Yatsenko, Ed.). A.S.K.

Brych, L. (2003). Common and distinguishing features of the composition of crimes under Article 130 of the Criminal Code of Ukraine “Infection with human immunodeficiency virus or other incurable infectious disease” with related elements of crimes. Visnyk of the Lviv University. Series Law, 38, 454–467.

Boiko, A. M., Brych, L. P., Dudorov, O. O. et al. (2019). Scientific and Practical Commentary on the Criminal Code of Ukraine (M. I. Melnyk, & M. I. Khavroniuk, Eds.). Dakor.

Baulin, Yu. V., Borysov, V. I., Tiutiuhin, V. I. et al. (2013). Criminal Code of Ukraine. Scientific and Practical Commentary (Vol. 2) (V. Ya. Tatsii, V. P. Pshonka, V. I. Borysov, & V. I. Tiutiuhin, Eds.). Right.

Korniienko, Ye. V. (2013). Criminal and legal characteristics of human immunodeficiency virus infection or other incurable disease [Candidate dissertation, National Academy of Internal Affairs].

Bantyshev, O. F., Hlushkov, V. O., Kopan, O. V.et al. (2011). Liability for crimes in the field of professional activity of medical workers and special types of bodily injuries provided for in Chapter II of the Special Part of the Criminal Code of Ukraine (V. O. Hlushkov, Ed.). Interagency Research Center at the National Security and Defense Council of Ukraine.

Mykhailov, V. Ye. (2011). Criminal liability for infection with the human immunodeficiency virus or other incurable disease: social conditioning and composition of the crime [Candidate thesis, National University “Yaroslav Mudryi Law Academy of Ukraine”].

Pavelko, Yu. R. (2019). Methods of investigation of crimes related to infection with human immunodeficiency virus or other incurable infectious disease or venereal disease [Candidate dissertation, Lviv Polytechnic National University].

Anisimov, H. M., Volodina, O. O., Dziuba, Yu. P. et al. (2016). Qualification of crimes (M. I. Panov, Ed.). Right.

Baulin, Yu. V., Borysov, V. I., Tiutiuhin, V. I. et al. (2015). Criminal Law of Ukraine. Special part (V. Ya. Tatsii, V. I. Borysov, & V. I. Tiutiuhin, Eds.). Right.

Aleksandrov, Yu. V., Dudorov, O. O., Klymenko, V. A. et al. (2009). Criminal Law of Ukraine. Special part (M. I. Melnyk, & V. A. Klymenko, Eds.). Atika.

Erhard, N. M. (2013, March 23). Legal issues related to human infection with infectious diseases [Conference presentation abstract]. International Scientific Conference “Formation of national and universal values among students of medical and pharmaceutical universities of Ukraine”, Kyiv, Ukraine.

Katerynchuk, K. V. (2019). Criminal and legal protection of personal health: doctrinal, legislative and law enforcement problems [Doctoral dissertation, Taurida National V. I. Vernadsky University].