Criminal law
Criminal law [кримінальне право; kryminalne pravo]. In Kyivan Rus’ criminal law was based primarily on customary law as recorded in the 11th and 12th century in Ruskaia Pravda (Rus’ Law). Crime was called obyda (offense) and originally had a private character; later it was considered public, however, since it constituted a ‘breach of the peace.’ Crimes against the public interest (sorcery, adultery, etc) were tried under ecclesiastical laws. Vengeance, state-controlled from an early date, was the oldest form of punishment, but was later replaced by recompense, supplemented by public punishment (banishment and seizure, vyra, fines). The death penalty was introduced by Volodymyr the Great for a short period (under the influence of the Byzantine clergy), but was soon abolished and replaced by monetary fines.
In the Lithuanian-Ruthenian state the customary law of the Ruskaia Pravda remained in effect along with new official legal sources, in particular the Lithuanian Statute. Criminal law became public. Guilt (criminal intent) was recognized as the basis of criminal liability. New categories of crimes of lese majesty and crimes against the state (treason, rebellion, assassination, conspiracy), religion, and family were introduced. Penalties became public, and there was wide application of the death penalty, even for adultery. Imprisonment also became effective as a penalty (its use was, however, limited).
During the period of the Hetman state (1648–1764), the old customary laws, the Ruskaia Pravda, and the Lithuanian Statute initially remained the principal sources of criminal law. Later, despite opposition from the Cossack starshyna, the Russian government ordered the publication of a new legal code entitled ‘Laws by Which the Little Russian People Are Judged’ (see Code of Laws of 1743). The new criminal code was progressive in that it provided a better definition of individual crimes and outlined a wider scope of conditions for criminal liability. Punishment was both public (most frequently capital punishment, torture, and imprisonment) and private (intended both to correct a wrong and to punish).
In the Ukrainian lands that came under Polish domination (Galicia, 14th century; Right-Bank Ukraine, 16th century) and remained so until the partition of Poland, Polish criminal law was introduced gradually, but the basic ideas of the Ruskaia Pravda and the Lithuanian Statute remained in effect for centuries.
In Russian-ruled Ukraine the criminal provisions of the Ruskaia Pravda and the Lithuanian Statute remained in effect until replaced in 1840 by the Code of Laws of the Russian Empire. The final criminal code of 1903 (only partially enforced) showed some progress under the influence of Western European laws, but retained certain typically Russian provisions, such as the principle of analogy or such punishments as exile with forced labor, deportation, and forcible resettlement in Siberia and other remote parts of the empire.
In Ukraine under Austria the criminal laws of the empire were introduced immediately. The code of 1852, a relatively modern one based on the ideas of the classical school of criminal law, remained in force until the fall of the empire in 1918.
The short-lived Ukrainian state established during the period of the struggle for independence (1917–20) did not produce a new criminal code; the codes of the former empires, Russia and Austria-Hungary, remained in force with certain logical changes in application.
After the First World War and the fall of the independent Ukrainian state and until the Second World War Ukrainian lands were under the domination of the Union of Soviet Socialist Republics (central and eastern Ukraine), Poland (Galicia and the northwestern territories), Romania (Bukovyna and Bessarabia), and Czechoslovakia (Transcarpathia). In each of these regions the criminal laws of the respective occupying regimes were in force.
Criminal law in the Ukrainian SSR. Under the Constitution of the USSR the fundamentals of criminal legislation for all Soviet republics must be enacted by the Supreme Soviet of the USSR and subsequently accepted by the republics. Accordingly, the Criminal Code of the Ukrainian SSR was enacted by the Supreme Soviet of the Ukrainian SSR on 28 December 1960, on the basis of the Foundations of Criminal Legislation of the USSR and Its Constituent Republics, approved by the Supreme Soviet of the USSR on 25 December 1958, and went into effect on 1 April 1961. The code (in sections 3 and 7) established the concept of crime as a ‘socially dangerous act ... as defined by criminal law.’ Thus, the law recognized the ‘material concept of crime,’ firmly established in Soviet tradition, but limited its scope to acts specified by the law as crimes. Thus, the code accepted the principle of ‘no crime and no punishment without law,’ as it was generally accepted by the codes of the Western world. Technically it rejected the traditional Soviet concept of crime as ‘every socially dangerous act’ regardless of whether or not it was specified by law (analogy).
The code also provided that punishment of criminals could be imposed only by courts (article 3). This principle of formal legality, however, was questionable in view of the widespread practice in the USSR of prosecuting and penalizing ‘socially dangerous’ people outside of the courts (eg, by the KGB) for actions not specified in the criminal code. (An act of 5 November 1934 giving the NKVD punitive powers was not superseded by the newer legislation.)
Criminal responsibility was based on guilt (vyna), a term not hitherto known in Soviet criminal law, which took the forms of intent and negligence. The formal requirement of guilt as the condition of criminal responsibility, however, did not abolish the traditional concept of the ‘social danger’ of the perpetrator as the basis for the treatment he/she received. The code (article 50) provided that if the court found the perpetrator ‘no longer socially dangerous,’ he/she should be relieved of criminal responsibility.
Punishment, according to article 22 of the code, not only constituted retribution for the crime, but also aimed at rehabilitating the criminal. It asserted that punishment was not aimed at inflicting physical suffering or offending human dignity. This provision lost its credibility, however, in light of the actual punitive practices of the Soviet system, such as ‘corrective-labor camps’ and harsh prisons, fabricated charges, long and often repeated sentences, exile to remote (Siberian) parts of the USSR, so-called therapy in special psychiatric hospitals (applied mostly to political opponents of the regime, ie, dissidents), and the absence of any official denial of Vladimir Lenin’s statement that criminal law, as an instrument of coercion, ‘ought not to abolish terror.’ Capital punishment, though it was referred to as an exceptional measure (article 24), was called for in nine kinds of crimes against the state, in several kinds of crimes against socialist property, and in military crimes. Prison and correctional labor camps, however, remained the most frequently applied penalties.
A special part of the code (articles 56–308), in accordance with ideas of ‘social danger,’ put ‘crimes against the state’ (26 forms) at the head of the list, followed by crimes ‘against socialist property’; military crimes concluded the list.
BIBLIOGRAPHY
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Yurii Starosolsky
[This article originally appeared in the Encyclopedia of Ukraine, vol. 1 (1984).]