CONDITIONS FOR THE EXCLUSION OF LIABILITY OF PERSONS AUTHORIZED TO PERFORM THE FUNCTIONS OF THE STATE OR LOCAL SELF-GOVERNMENT FOR COMMITTING AN ACT IN THE CONDITIONS OF MARTIAL LAW

Abstract

The article was observed the peculiarities of the normative consolidation of the exclusion of responsibility of persons authorized to perform the functions of the state or local self-government for committing an act under martial law. It was established that for the first time at the regulatory level, this legal institution was introduced by the Law of Ukraine dated 15.03.2022 No. 2124-IX, which provides for the activities of persons authorized to perform the functions of the state or local self-government under martial law as a new type of exclusion of liability (Part 3 of Article 9 of the Law of Ukraine «On the Legal Regime of Martial Law»). It was established that this circumstance, which excludes the illegality of the act, does not have a name, but contains certain conditions for the non-occurrence, in particular, of criminal liability: the period of implementation – the act was committed under martial law; relevant entity – a person authorized to perform the functions of the state or local self-government; nature of activity – committing an action or inaction or (making) a decision; attitude to the consequences – the subject could not foresee the negative consequences or which are covered by a justified risk; the purpose of the activity is to repel armed aggression against Ukraine or eliminate (neutralize) the armed conflict. The conducted research of the legal regulation of the exclusion of responsibility of persons authorized to perform the functions of the state or local self-government for the commission of an act under martial law was testified to the presence of certain deficiencies in determining its legal nature and individual features. The authors have expressed certain proposals for their elimination. It was concluded that the current version of the temporal condition limits the possibility of its application in other situations, when martial law is not declared, but there is an armed conflict. It is proposed to present a new version of this condition: «committed under martial law or during an armed conflict». It is substantiated that the persons authorized to perform the functions of the state or local self-government (as a condition of the specified circumstance) should not include military personnel and law enforcement officers, who are already provided by the legislator as subjects of combat immunity. The determining such a subject of exclusion of responsibility, it should not be a specific position in state authorities or local self-government bodies, but rather the ability to exercise power or organizational and administrative functions in institutions, enterprises and organizations of any form of ownership that should be decisive. It has been proven that the nature of the activity of such persons can be realized only through action. It is hypothesized that a person's subjective perception of negative consequences is possible due to indirect intent or carelessness (it is important that the person does not wish for such consequences to occur). The article was proposed that this circumstance, which excludes the illegality of an act, be provided for in Chapter VIII of the Criminal Code of Ukraine «Circumstances that exclude the criminal illegality of an act».