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/ April 2023
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http:// www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2023.64.04.6
How to Cite:
Movchan, R., Kamensky, D., Pysmenskyy, Y., Dudorov, O., & Prokofieva-Yanchylenko, D. (2023). Protection of the environment
under the draft Criminal Code of Ukraine and the European criminal law: a comparative study. Amazonia Investiga, 12(64), 65-72.
https://doi.org/10.34069/AI/2023.64.04.6
Protection of the environment under the draft Criminal Code of
Ukraine and the European criminal law: a comparative study
Кримінально-правова охорона довкілля за проєктом Кримінального кодексу
України та європейським кримінальним законодавством: компаративістське
дослідження
Received: February 13, 2023 Accepted: April 1, 2023
Written by:
Roman Movchan1
https://orcid.org/0000-0003-2074-8895
PUBLONS: Web of Science ResearcherID: AAK-1080-2021
Dmitriy Kamensky2
https://orcid.org/0000-0002-3610-2514
PUBLONS: Web of Science ResearcherID: AAQ-4357-2021
Yevhen Pysmenskyy3
https://orcid.org/0000-0001-7761-7103
PUBLONS: Web of Science ResearcherID: R-2482-2019
Oleksandr Dudorov4
https://orcid.org/0000-0003-4860-0681
PUBLONS: Web of Science ResearcherID: ABA-1022-2021
Daria Prokofieva-Yanchylenko5
https://orcid.org/0000-0001-6458-5536
PUBLONS: Web of Science ResearcherID: AAH-7665-2020
Abstract
The purpose of the article is to study approaches
used in the Criminal Codes of certain European
countries regarding: 1) location in their systems
of special parts of norms on liability for
encroachment on the environment;
2) comparison of these approaches with the
version embodied in the project of the new
Criminal Code of Ukraine (hereinafter – the
Project); 3) development of scientifically
founded recommendations on this basis, which
can be used both for the improvement of the
relevant provisions of the Project and for the
relevant prescriptions of the criminal laws of
European states.
Participation of Roman Movchan in working on this research paper was made possible by the grant project “Improving Effectiveness
of Criminal Law Protection of the Environment in Ukraine: Theoretical and Applied Principles”, provided by the National Research
Fund of Ukraine (Grant No. 0122U000803).
1
Doctor of Law, Professor, Professor Department of Constitutional, International and Criminal Law, Vasyl’Stus Donetsk National
University, Ukraine.
2
Doctor of Law, Professor, Head of Law Courses Department, Berdyansk State Pedagogical University, Ukraine.
3
Doctor of Law, Professor, Head of Department of Police Activities at E.O. Didorenko Luhansk Educational & Scientific Institute of
Donetsk State University of Internal Affairs, Ukraine.
4
Doctor of Legal Sciences, Professor, Professor of the Department of Criminal Law Policy and Criminal Law of the Educational and
Scientific Institute of Law at Taras Shevchenko National University of Kyiv, Ukraine.
5
Doctor of Law, Director of the Interdepartmental Research Center for Combating Organized Crime under the National Security and
Defense Council of Ukraine, Ukraine.
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When analyzing legislation of specific European
countries, as well as substantiating research
results, a wide range of scientific methods has
been used: comparative legal, dialectical,
methods of system analysis and modeling.
Based on the research, it is summarized that,
contrary to the Ukrainian Project, the majority of
European states consolidated all criminal
offenses against the environment within a single
structural element of the Special part of national
Criminal Codes.
Borrowing experience of countries where
criminal law recognizes some offenses against
the use of natural resources as types of offenses
against property or economy was recognized as
impractical.
Keywords: comparative studies, criminal
offense, criminal liability, environment, natural
resources, economy, environmental security,
illegal possession, health, public safety, society,
traffic safety, national security.
Introduction
The conceptual novelty of the Project (EUAM
Ukraine, 2023) lies in its additional structuring,
which is uncharacteristic of the Special Part of
the current criminal legislation. In particular,
taking into account the rather heterogeneous
range of social relations which are violated as a
result of the commission of criminal offenses
against the environment (Movchan, 2020),
developers of the Project have actually
implemented the so-called two-level
interpretation of the generic object of
environmental criminal offenses proposed by
many domestic researchers (Kornyakova, 2011;
Samokysh, 2011; Turlova, 2018). This was
manifested in the proposed division of all
sections provided for in the Project. VIII of the
Special Part of the current Criminal Code of
Ukraine (hereinafter – the CC) criminal offenses
into two separate groups of offenses – “criminal
offenses against the safety of the environment”
and “criminal offenses against the order of use
of natural resources”.
From both a theoretical and a practical point of
view, the most interesting thing is that the authors
of the Project not only divided all the criminal
offenses provided for in Chapter VIII into two
groups, but also placed the corresponding
chapters in different books of the Special Part. If
criminal offenses against the environmental
safety (Chapter 5.3) are included in the book 5
“Criminal offenses against public health”, then
criminal offenses against the order of use of
natural resources (section 6.5) – in book 6
“Criminal offenses against the economy.”
Based on the results of this scientific
investigation, we will try to find out how correct
this approach is, and if it is unjustified, then what
version of the regulation of liability for criminal
offenses against the environment could be
embodied in the Project.
In order to achieve the highest efficiency of
criminal law norms (in particular, regarding
liability for encroachment on the environment),
their improvement should be carried out on the
basis of taking modern achievements of
European and world criminal law opinion into
account and also be based on the advanced
practices of foreign legislation (Khavronyuk,
2013). In Ukrainian realities, it is primarily about
the legislation of European countries, which
experience in the field of criminal law
environmental protection will be studied in the
course of writing this article with the possibility
of its further use.
Movchan, R., Kamensky, D., Pysmenskyy, Y., Dudorov, O., Prokofieva-Yanchylenko, D. / Volume 12 - Issue 64: 65-72 /
April, 2023
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The significance of conducting comparative
research is amplified when considering the
Association Agreement between Ukraine and the
EU, which was signed in 2014, as well as the
significant EU decision in 2022 to designate
Ukraine as a candidate for EU membership.
These documents explicitly emphasize that the
future political association and economic
integration between Ukraine and the EU are
contingent upon Ukraine's advancements in
aligning with the EU in political, economic, and
notably, legal domains.
Criminal law assumes a crucial role in this
context as it addresses the necessity of
harmonizing Ukraine’s criminal legislation with
pan-European standards for combating
environmental crimes. Additionally, it takes into
consideration the existing legislative measures
implemented by the EU member states.
Literature Review
The works of such Ukrainian researchers as
T. Kornyakova, I. Mitrofanov, V. Samokysh,
Yu. Turlova, A. Savchenko, A. Shulga, O. Yara
have made a notable contribution to the
development of issues of criminal law protection
of the environment with regard to improving its
legislative support.
A number of publications of comparative nature
regarding the European experience of criminal
law counteraction to environmental
encroachments on certain types of natural
resources (land (Movchan, 2016; Lisova &
Sharapova, 2020; Meiyappan et al., 2014),
subsoil (Movchan et al., 2021a; Movchan et al.,
2022)), have also been published by the authors
of this article.
At the same time, given the fact that Ukraine is
currently at the stage of developing a new
criminal law (comprehensive reform of criminal
legislation is being carried out), designed to
significantly improve the mechanism of criminal
law regulation taking into account Ukraine’s
aspirations to become the EU member, research,
the subject of which is a comprehensive analysis
of the provisions of the Project, becomes of
particular importance. Conducting such research
will make it possible to properly evaluate its
novels, identify potential risks in law
enforcement, respond to weaknesses in a timely
manner, etc. It is natural to study relevant issues
through the prism of criminal legislation of
European countries. It is necessary to state the
absence of similar academic works in the field of
criminal law protection of the environment,
which necessitated the preparation of this article.
It should be taken into account that available
publications relate to the study of either
international legal aspects of the subject under
consideration, or the legislation of only certain
countries, or are focused purely on the ecological
components of combating crimes against the
environment.
It is worth adding that previous researchers of the
topic at hand have concentrated either on
international (Lammers, 2001; Eshmurodov,
2020; Hollins & Percy, 1998) or merely internal
(Goyes et al., 2017; Ladychenko et al., 2019;
Savchenko et al., 2017) aspects of the problem.
Меthodology
This study is based on the use of the comparative
law method (Minchenko et al., 2021), which was
applied to find out existing approaches in
European countries to the regulation of liability
for criminal offenses against the environment.
The philosophical (dialectical) method made it
possible to understand problems of the research,
its methodological foundations, to structure the
research, to comprehend the research object in a
step-by-step mode. By employing the modeling
method, the provisions of the legislation of
European countries are determined, which can be
used during the improvement of domestic
criminal legislation.
Legislation of twenty-five European countries,
whose criminal legislation provides for liability
for criminal offenses against the environment,
was selected for consideration. Among those are
Austria, Albania, Bulgaria, Denmark, Estonia,
Iceland, Spain, Latvia, Lithuania, Macedonia, the
Netherlands, Norway, Poland, Portugal, San
Marino, Serbia, Slovakia, Slovenia, Turkey,
Hungary, Finland, Germany, Croatia,
Montenegro, Czech Republic. Selection of such
a wide range of countries is explained by the
scientifically proven fact that studying foreign
experience of as many countries as possible
contributes to the transposition of the relevant
provisions of the criminal legislation of various
foreign countries, their adaptation, convergence,
harmonization, unification, etc. (Movchan et al.,
2021b).
Results and discussion
Despite the conceptual change in the approach to
the construction of the Special Part of the
Criminal Code, the main principle of placing
norms in specific structural links of the Project
remained unchanged: from now on, these articles
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should be grouped into sections based on the
characteristics of the specific, not generic object
of criminal law protection; while the chapters
should be grouped into books based on the
characteristics of the generic object. In other
words, the main direct object of the criminal
offense provided for by a specific article must be
part of the specific object of the corresponding
group of criminal offenses (it is reflected in the
title of the section); the specific – of the generic
one (it can be judged from the title of the
corresponding book).
In turn, this means the need for a correlation
between the main direct object of criminal
offenses, which is provided for by the article
placed in a certain section, and the generic object
of criminal offenses to which a relevant book is
devoted. Of course, these objects can be and most
often are “distant” from each other in a certain
way, which is explained by the placement
“between them” of a link in the form of a specific
object closer to both. However, they must have a
fairly close connection, i.e., when causing
damage to the main immediate object, there must
be a “visible” violation of relations (values, etc.),
which are covered by the corresponding generic
object.
At the same time, we consider it erroneous to
attribute criminal offenses against the order of
use and protection of natural resources (section
6.5) in general, as well as, for example, their
varieties, such as the destruction or damage of
plant or animal natural resources, to
encroachments on the economy (book 6 of the
Project) (Mitrofanov, 2022). We consider as an
example mutilation of a wild animal, which is as
“remote” from the economy as, say, the infliction
of bodily harm on a person, the damage from
which can also be partially expressed with the
help of a property equivalent and which
(according to a similar logic) can be considered
an encroachment on the economy. Is it justified
to recognize as economic criminal offense the
behavior of the owner of a land parcel, who
removes the soil cover of the land located on it
without the permission established by law, i.e.
commits actions which qualify under Art. 254 of
the current Criminal Code of Ukraine, and if the
Project is adopted as a law, will it be considered
either as “illegal possession” (Article 6.5.4) or as
“depletion” of a natural resource (Article 6.5.7)?
In our opinion, the answer to these (and similar)
questions should be negative. The conclusion
cannot be affected by the fact that criminal
liability for the above-mentioned acts is
associated with their causing certain (significant
or insignificant) property damage. After all, the
latter is (should be) only a formalized and most
objective indicator of damage that has been done
to ecological legal relations, which are
fundamentally different from economic ones,
and some of which are the main direct objects of
the mentioned violations.
If not to the economic one, then to which block
of the encroachments provided by the Special
Part of the Project (that is, book) should criminal
offenses against the order of use and protection
of natural resources be assigned? The same issue
is brought up to date in the same way in relation
to the placement of norms on criminal offenses
against environmental safety.
And precisely in order to obtain a properly
substantiated answer to the question of the
optimal location of the prohibitions under
consideration in the Project, it is necessary to
refer to the relevant experience of European
countries, in which liability for environmental
torts is regulated (in various forms) by criminal
codes. As a result of the conducted comparative
analysis, it was found that foreign
parliamentarians primarily use six main
approaches to the location of norms on
encroachments, which are considered by the
current Criminal Code of Ukraine as criminal
offenses against the environment, and in the
Project – as criminal offenses against
environmental security (Chapter 5.3) and against
the order of use and protection of natural
resources (Chapter 6.5).
In most of the codes we have analyzed, all
articles on criminal offenses against the
environment are concentrated within one
structural subdivision of the Special Part.
Therefore, there are no examples of recognition
of the considered torts as encroachments on
various protected relations (group object), that is,
the placement of such units within the boundaries
of distinct links of a higher order. Despite the
unity on this issue, the parliamentarians of the
countries whose legislation is being studied come
from four different positions regarding the
location of the appropriate universal structural
unit. Such approaches largely depend on the
complexity of the architecture of the Special Part.
In particular, legislators of the countries whose
criminal codes implemented the so-called
“simple” (one-level) architecture of the Special
Part took two options for solving the specified
issue as a basis.
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Based on the first approach (as well as in the
current Criminal Code of Ukraine built on this
model), a separate section (chapter) is allocated
in the criminal codes of some states, fully
devoted to the regulation of responsibility for
criminal offenses (crimes) against the
environment (natural environment)
(Chapter 11 of the Criminal Code of Latvia,
Chapter 22 of the Criminal Code of Macedonia,
Chapter 24 of the Criminal Code of Serbia,
Chapter 30 of the Criminal Code of Slovenia,
Chapter XXIII of the Criminal Code of Hungary,
Chapter 29 of the Criminal Code of Germany,
Chapter XX of the Criminal Code of Croatia,
Chapter 25 of the Criminal Code of
Montenegro);
The second approach assumes that criminal
offenses against the environment are
consolidated into a single structural unit, within
which, along with environmental torts, the
following are placed: a) generally dangerous
offenses (Chapter VII of the Criminal Code of
the Netherlands); b) criminal offenses that cause
harm to society (public interests) (Chapter 21 of
the Criminal Code of Denmark, Chapter XIX of
the Criminal Code of Iceland); c) criminal
offenses against health care (Chapter XXXVIII
of the Criminal Code of Lithuania, Chapter 23 of
the Criminal Code of Norway).
In these countries, the relevant structural units
are most often placed between criminal offenses
against public safety, public transport (road
safety), the state, less often – “next to” criminal
offenses in the field of illegal drug trafficking or
against human health.
However, when determining the structure of the
Special Part of the Project, its developers took as
a model the example of another group of
countries, where a “complicated” (multilevel)
model of the construction of the Special Part was
used, which involves the division of units of a
higher level (generic object) into parts of a lower
order (special object). At the same time, in
countries with this structure of the criminal law,
the rule-makers also use two different methods of
solving the issue at hand.
The parliamentarians of the conditionally first
group of countries believe (in general, the third
approach) that the specifics of criminal offenses
against the environment is such that they do not
allow to attribute (or combine) these torts to any
other of the separate groups of offenses. With this
in mind, in the Special parts of the criminal codes
of these states, criminal offenses against the
environment are dedicated to separate structural
units of a higher order, within which lower
elements are often not distinguished at all
(Chapter IV of the Criminal Code of Albania,
Chapter 20 of the Criminal Code of Estonia,
Chapter VIII of the Criminal Code of the Czech
Republic).
It is also characteristic that, similar to the
previous version, the corresponding structural
links are again most often placed between
criminal offenses against public safety, public
order and morality, traffic safety, against the
state.
Instead, legislators of other states (the fourth
approach) see grounds: 1) for recognizing
criminal offenses against the environment as a
type of a group of offenses that is broader in
content – criminal offenses against security
(public safety and public order) or society
(community), to which they are included (Part 2,
Chapter 3 of the Criminal Code of Turkey).
Under such condition, together with criminal
offenses against the environment in the relevant
structural unit, liability for encroachment on
public safety, as well as public peace, public
health, traffic safety and operation of transport,
etc. is assumed once again; 2) to combine
criminal offenses against the environment and
safety in one structural unit: a) at the higher level,
within which separate elements of a lower order
are distinguished, dedicated to the regulation of
liability for, on the one hand, criminal offenses
against the environment, and on the other –
against public security (parts one and two of Ch.
6 of the Criminal Code of Slovakia); b) of a lower
level – subject to the implementation of this
option, the relevant norms are included in the
group of criminal offenses against society
(Part III, Chapter IV of the Criminal Code of
Portugal, Part I, Chapter 3 of the Criminal Code
of San Marino).
Much less often, foreign parliamentarians use the
approach approved in the Project, when, in view
of some difference in the objects of various
criminal offenses against the environment,
liability for their commission is assumed
according to the norms that are placed in various
structural units of the Special Part of the Criminal
Code. At the same time, and within such an
option, at least two varieties can be distinguished,
which are fundamentally different from each
other.
Legislators who tentatively profess the first of
them (in general, this is the fifth approach)
proceed from understanding of the organic unity
of all criminal offenses against the environment
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(generic object), which, at the same time, does
not prevent them from realizing that certain
groups of such offenses encroach on rather
heterogeneous social relations (specific object).
This approach is implemented by selecting two
sequentially placed structural parts (in a Criminal
Code with a simple architecture, they are
completely independent, and in the case of a
complex one, they are included in a single link of
a higher order). These parts, despite their
different names, actually (meaningfully) refer to
the same criminal offenses against the
environment, some of which are considered in
the Project as criminal offenses against
environmental safety (environmental pollution,
illegal waste management, etc.), while others as
criminal offenses against the order of use and
protection of natural resources (illegal
hunting/fishing, felling of trees (forest crime),
etc.). Taking into account this structuring
criterion, in the Criminal Code of Spain all
offenses against the environment are divided into
crimes against natural resources and the natural
environment (Chapter III), as well as crimes in
the field of protection of flora, fauna and
domestic animals (Chapter IV), and according to
the Criminal Code of Finland – on environmental
crimes (Ch. 48) and crimes in the field of natural
resources (Ch. 48-a).
Legislators in the second group of countries
include only those actions that the authors of the
Project recognize as encroachments on
environmental safety as criminal offenses against
the environment (sixth approach). At the same
time, certain criminal offenses against the order
of use and protection of natural resources can be
recognized as encroachments on: a) property (in
the Criminal Code of Poland, this is Ch. XXII
“Crimes against the environment” and Chapter
XXXV “Crimes against property”, which, in
particular, provides for liability for felling trees
in the forest for the purpose of appropriation
(Article 290); according to the Criminal Code of
Austria – Chapter 7 “Generally dangerous acts
and criminal acts against the environment” and
Chapter 6 “Criminal acts against other people’s
property”, which found a place for such
traditional (from the standpoint of the current
Criminal Code of Ukraine) environmental
offenses, as provided for in paragraphs 137–140
– illegal fishing and hunting); b) economy – a
relevant example can be observed in Bulgaria,
which Criminal Code includes such actions as
illegal mining, illegal felling of forests,
destruction of trees, etc. Part II “Crimes in certain
branches of the economy” includes Ch. 6
“Crimes against business” (at the same time, in
Chapter III “Crimes against public health and the
natural environment”, Chapter 11 “Generally
dangerous crimes”, the Bulgarian
parliamentarians provided for liability not only
for environmental pollution, violation of
veterinary regulations, illegal handling of waste,
but also for illegal drug trafficking, production of
food items dangerous to human health, animal
feed, etc. – that is, for actions similar to those for
which liability is consolidated within the scope
of Book 5 of the Project “Criminal Offenses
Against Public Health”).
Based on the results of the comparative legal
analysis, there are grounds to draw two main
conclusions which influenced the final position
on the issue under consideration, in particular,
regarding the assessment of the approach to the
placement of criminal offenses against the
environment in the system of the Special Part of
the Project.
First, it was possible to find only two countries
whose Special parts of the Criminal Codes
provide for the allocation of two structural units
dedicated to the regulation of liability for certain
types of criminal offenses against the
environment – these are Spain and Finland.
However, even “separated” environmental torts
in the mentioned states are recognized as
homogeneous, as evidenced by their placement
within the boundaries of parts located one after
the other, which are either independent or
included in a single link of a higher order (in the
Criminal Code with a simple and complex
architecture, respectively). At the same time, not
a single example of the approach embodied in the
Project was found, according to which two
relevant structural units (Section 5.3 and Section
6.5) are placed in different links of a higher order
(Book 5 and Book 6, respectively).
Secondly, taking into account the above, the
clarified fact that the parliamentarians of
countries in which all criminal offenses against
the environment are consolidated within a single
structural element, most often: 1) recognize their
organic kinship not with encroachments on the
economy or security, becomes even more
significant health, as provided for in the Project,
and with criminal offenses against public safety
or society: a) to which they are included (in
various forms); b) or with which they are
combined in single parts; 2) recognize the
impossibility of including/combining
environmental torts (taking into account their
specifics) into/from any other groups of criminal
offenses, singling out completely independent
subdivisions devoted exclusively to criminal
offenses against the environment. Moreover, this
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is characteristic of both countries with complex
and simple “architecture” of the Special Part of
the Criminal Code. Against this background, it is
characteristic that with such approach, the
relevant structural links are most often placed
next to articles on criminal offenses against
public safety, public order and morality, traffic
safety. Even indirectly, this fact can be
considered an additional evidence of recognition
of the closeness of the legal relations (values)
protected by the relevant sections (chapters).
Conclusion
By synthesizing all previous developments, as
well as taking into account the structure of the
Project, we came to the general conclusion that
the issue of regulation of liability for criminal
offenses against the environment should be
resolved in it (the Project) in one of two
alternative ways.
The option I provides for inclusion of the two
chapters, currently placed in different books, into
a single structural link of a higher order, which
deals not only with environmental, but also with
other offenses. Having analyzed the structure of
the Project, it can be stated that in the case of
implementation of this approach, articles on the
considered encroachments should be placed in
the book 7 “Criminal offenses against society.”
This approach is supported not only by the
foreign experience highlighted above, but also by
the placement in the book 7 of the Draft of norms
on the group of criminal offenses against
security.
Possibly the only disadvantages of this option are
that, if it is implemented, firstly, there will be a
certain imbalance between the book 5, in which
only two chapters will remain, and book 7, which
will concentrate eleven sections at once, and
secondly, the peculiarity of the object of specific
criminal offenses against the environment will
not be fully taken into account.
That is why option II is considered optimal (with
some reservations) – its essence is to allocate an
independent book on criminal offenses against
the environment, to which sections devoted to
criminal offenses against environmental safety
and against the order of use and protection of
natural resources, which are not currently placed
in “their” books, should be transferred,
respectively. The advantages of this approach
include the fact that it makes it possible to
maximally ensure/take into account the
following:
1) specifics of criminal offenses against the
environment, which is quite sufficient
(which is confirmed by the dominant foreign
experience) to allocate a separate book, fully
devoted to the relevant offenses;
2) absolute correlation between generic
(relevant book), specific (two mentioned
sections) and the main direct objects of
specific criminal offenses;
3) continuity of criminal legislation of Ukraine.
Given the presence of an unprecedentedly
large number of other radical updates
proposed in the Project, its authors should
try to preserve the mentioned continuity at
least in those few aspects, where it is
possible and where it does not violate the
conceptual principles of building a new CC.
Such step will help both lawmakers (when
updating criminal legislation) and law-
enforcement bodies (criminal law responses,
organization of reporting, keeping criminal-
law statistics, etc.), which are “accustomed”
to the presence of a separate independent
structural unit that unites articles about all
criminal offenses against the environment;
4) the best and at the same time the most
common foreign practices, in particular the
experience of those European countries
which recognize, on the one hand, the
organic unity of criminal offenses against
the environment and their fundamental
difference from all other criminally illegal
acts (placement in a single chain of higher
order), and on the other hand – the difference
in the nature of their anti-social orientation
(division into two parts of a lower order).
Acknowledgements
This research paper was written for the grant
project “Improving Effectiveness of Criminal
Law Protection of the Environment in Ukraine:
Theoretical and Applied Principles”, provided by
the National Research Fund of Ukraine (Grant
No. 0122U000803).
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