СRIMINAL LAW PROTECTION OF THE RIGHTS AND INTERESTS OF THE MILITARY: THE EXPERIENCE OF FOREIGN COUNTRIES

Abstract

The article presents a comparative study of the legislative provisions of leading European countries and the United States regarding criminal liability for encroachments on the rights and legally protected interests of military personnel. The comparative analysis is driven by the need to eliminate existing flaws and shortcomings in Article 435-1 of the Criminal Code of Ukraine, adopted in 2022 amid the full-scale armed aggression. Among the main deficiencies of this provision, domestic scholars highlight the following: 1) inconsistency of the perpetrator of the criminal offense, as provided for in Article 435-1 of the Criminal Code of Ukraine, with the one designated for Chapter XIX of the Special Part of the Criminal Code of Ukraine; 2) inconsistency of the object of the criminal offense, as provided for in Article 435-1 of the Criminal Code of Ukraine, with the chapter of the Special Part of the Criminal Code of Ukraine in which the provision is placed; 3) limitation of the application of Article 435-1 of the Criminal Code of Ukraine exclusively to conditions of armed aggression by the Russian Federation; 4) limitation of the application of Article 435-1 of the Criminal Code of Ukraine solely to cases where the person carrying out measures to ensure national security and defense, repelling, and deterring armed aggression by the Russian Federation is a military serviceman; 5) absence of a direct link between the nature of the performed activities and the act of encroachment itself, as the provision only establishes characteristics of the legal status of the victim.The author examines the criminal liability legislation of several countries and provides examples of the criminal-legal protection of the rights and interests of military personnel in the legislation of France, Germany, Austria, Italy, and the United States. It is determined that although these provisions were developed and incorporated into national criminal laws outside a wartime context, their experience may be valuable for improving Article 435-1 of the Criminal Code of Ukraine. The borrowing of certain legislative constructions, as well as the experience in interpreting specific terms and concepts used in criminal liability provisions – either through separate notes or by referencing norms containing interpretive definitions – could help to address some of the structural shortcomings and deficiencies of Article 435-1 of the Criminal Code of Ukraine.