In Ukraine, as well as in many countries of the CIS (Commonwealth of Independent States) all higher legal educational institutions include into their curriculum an academic course (sometimes – as a special academic course) of the theory of qualification of crimes, generally taught to the last year students. This academic course completes the block of criminal legal discipline study, but it is a separate, specific and independent academic discipline that has important theoretical and practical meaning. It should be noted that the issues of qualification of crimes in the law of many western countries (including the USA) gravitate more to the criminal process and are considered within the theory of criminal charge, whereas, in fact, for all the former Soviet Republics (including Ukraine) this kind of questions is a component of criminal legal branch.
Unfortunately, western scientists appear almost unfamiliar not only with specific features of Ukrainian theory of qualification of crimes (including provisions on the body of crime/corpus delicti as a legal basis of qualification, qualification of previous criminal activity, qualification of crimes committed in complicity, qualification of crimes in competition of criminal legal norms, qualification of multiple crimes, qualifications of acts in certain kinds of errors in the criminal law), but also with basic scientific foundations of qualification of crimes (in particular, the provisions on concepts, principles, types, functions, meaning, structure, grounds, conditions, rules, mechanisms, stages of qualification of crimes, legal consolidation of its results). In our opinion, the main reasons for that are: unavailability of sufficient professional information about the questions of qualification of crimes in English necessary for Ukrainian specialists; difference in the structures of criminal legal institutions of various states that are hard to compare with each other, or which implicates difficulties in finding appropriate translation for these issues; the reluctance of western lawyers to study the Ukrainian criminal law provisions, as many of them are unduly confident of rudimentary, second-best, pro-Soviet character of the provisions, and so on. Thus, it is necessary to cover at least the basic theoretical foundations concerning qualification of crimes for the English audience of lawyers, which we define as the purpose of this article.
In recent years in Ukraine, in particular by the Department of Criminal Law of the National Academy of Internal Affairs, the two books covering the issues of qualification of crimes were created: the study guide “Qualification of the crimes under investigation by the internal affairs bodies” (2011) [1] and the textbook “Theory of qualification of crimes” (2012) [2]. At the same time in Ukraine one can find other publications on the subject (eg, study guides “Scientific foundations of criminal legal qualification”, V.O. Navrotskyi, Kyiv, 2006, “Qualification of crimes”, M.Y. Korzhanskyi, Kyiv, 2007, “Qualification of crimes”, edited by O.O. Dudorov and E.O. Pysmenskyi, Kyiv, 2010). What can be said about the basic theoretical background of the issues of qualification of crimes? To qualify the crime means to establish full compliance of its signs with the signs of norms that provide responsibility for the commission of this crime. Therefore, qualification of crimes is finding (determination) of an article (articles, their parts or items) of the Criminal Code of Ukraine (hereinafter – CC), which includes responsibility for the committed socially dangerous act. Thus, the qualification of crimes implies setting and legal consolidation of exact match between the signs of a committed act and the signs of corpus delicti envisaged by the criminal law. In broad understanding the qualification of crimes is: 1) the result of criminal legal estimation of act… (Professor V.O. Navrotskyi), 2) criminal legal estimation of the committed act, selection and application to it of a criminal legal norm, which more fully describes its characteristics (Professor M.Y. Korzhanskyi). In our view, the qualification of crimes is the process of establishing correspondence (identity) between legally significant signs of the crime (actual corpus delicti) and signs of the crime envisaged by the CC (legal corpus delicti), and formulating of the conclusion about presence or absence of such correspondence (identity). This definition is based on the concept that the qualification of crimes is not only process, but also result of the process.
In the process of qualification it is necessary to be guided by the following principles: 1) legality; 2) formality; 3) objectivity; 4) exactness; 5) individuality; 6) completeness; 7) resolving of disputes in favor of the person whose actions are qualified; 8) inadmissibility of double incrimination; 9) stability.
Depending on a person who implements the qualification of crimes (depending on concrete subjects that implement criminal legal estimation of the committed act) it can be of two types: 1) official (legal) qualification of the crimes, which is implemented by authorized state officers, fixed in procedural documents and creates certain legal consequences with obligatory character; 2) non-official (doctrinal) – that is an appropriate legal estimation provided by citizens, advocates, journalists, scientists in scientific articles, monographs, textbooks, manuals, in presentations during scientific conferences, etc. (such qualification doesn’t have obligatory character, but can be considered by subjects of official qualification, can influence the development of the criminal law science and legislative activity, can form legal views of the society).
The structure of qualification of crimes includes the following components: a) object of qualification – the act that undergoes criminal legal estimation; b) subject of qualification – the bodies that carry out criminal legal estimation; c) content of qualification – that is its essence, and therefore triggers certain activity, in other words it is estimation of a committed behavior as criminal or non-criminal from the point of view of the criminal law.
The preconditions of qualification of crimes have the following requirements: a) deep study and understanding by the person applying the criminal legal provisions, the principles of criminal law, criminal legal policy of the state, investigative and judicial practice; b) correct clarifying and interpretation of the essence of the criminal law, all signs of a concrete criminal legal norm; c) complete and comprehensive study of actual characteristics of the committed socially dangerous act; d) application of the rules of qualification of crimes, developed by theory and practice. The grounds of qualification of crimes are as follows: 1) actual grounds that are circumstances of the case available in reality that became known to law enforcement agencies and were consolidated procedurally; 2) legal – formulated in the appropriate norms of the CC legal corpus delicti by which a legislator declares certain criminal behavior of a person as criminal.
The basic rules of qualification of crimes are as follows: 1) all actual signs of the offense must correspond to the legal signs of corpus delicti; 2) signs of the committed crime should be distinguished, separated from the related corpus delicti; 3) only that criminal legal norm, which most fully covers its signs, should always be applied to the committed crime; 4) in case of presence in the committed crime of the signs of general and special norms a special norm is to be applied; 5) qualified (with aggravated circumstances) corpus delicti has the priority (precedence) before the general corpus delicti while specially qualified (with the most aggravated circumstances) corpus delicti – before qualified corpus delicti; 6) act in which further damage to the additional direct object is the way, component of damaging the main object, is qualified as one crime; act in which further damage to the additional direct object is caused optionally, is qualified as aggregate of crimes; 7) way to commit a crime does not form the aggregate of crimes, if it is mandatory, essential and integral feature of the particular act; 8) each subsequent stage of completion of the crime absorbs the previous one: corpus delicti of the completed crime absorbs corpus delicti of the attempted crime while corpus delicti of the attempted crime absorbs corpus delicti of preparation to this crime; 9) intent always absorbs negligence, and any higher degree of fault absorbs the lower one; 10) in case of competition of an independent norm and a norm on participation in a more serious crime a norm on participation is to be applied.
Legal consolidation of results of qualification of crimes has four main components:
1. Statement of facts of the case – formulation of the actual corpus delicti, that is the description of a person’s behavior and other legal facts that were set (procedurally proven) and that have criminal legal meaning and in the system combination create actual corpus delicti.
2. Deducing of a formula of qualification – indication of the articles of Special Part of the CC and under certain conditions – of the articles of General Part of the CC containing description of the committed act, which makes possible usage of abbreviations and symbols. Formula of qualification is a set of literal and digital signs that point to the criminal legal norms (articles, their parts and items) that are to be applied. The meaning of the formula of qualification is that you can use it to make a brief and precise reference to the law on criminal responsibility and reduce the amount of procedural documents. It answers the question: whether the crime has corpus delicti and what article of the criminal legislation envisages for it.
From the General Part of the CC a formula of qualification of crimes can contain only the following norms: part 1 of art. 14 (preparation for crime); part 2 of art. 15 (complete attempted crime); part 3 of art. 15 (incomplete attempted crime); part 3 of art. 27 (organizer); part 4 of art. 27 (instigator); part 5 of art. 27 (accessory). If a person commits an attempted crime by omission, in the process of qualification of crimes one has to refer to part 1 of art. 15 of the CC and article of the Special Part of the CC, that includes responsibility for the completed crime on which the person commits the attempted crime (due to the fact that parts 2 and 3 of art. 15 of the CC describe an attempted crime as an action and, therefore, qualification with reference to these parts is impossible when criminal inaction takes place). For the perpetrator’s action it can never be qualified after any part of art. 27 “Types of Accomplices” of the CC.
From the Special Part of the CC a formula of qualification of crimes can include only the articles (parts of articles, items of parts of articles) containing “prohibited” norms (eg, art. 112, part 3 of art. 185, item 6 of part 2 of art. 115). “Explanatory” and “promotional” norms are not used in the formula of qualification of crimes.
3. Legal formulation of the charge – legal “decoding” and specification of a formula of qualification of crimes (in other words, it is a verbal reference to the criminal legal provisions, reflected in the formula of qualification, legal definitions contained in the norms of criminal legislation that establishes the responsibility for the committed crime).
4. Background of qualification – activity of appropriate state bodies with the aim to confirm the drawn decision on qualification of crimes by a certain norm (norms) of the CC (providing for the evidence base, formulating logical and consistent conclusions, etc.).
Meaning of qualification of crimes lies in the fact that every criminal case arrives at the truth, goals and objectives of criminal legal policy are realized, compliance with law is ensured, through appropriate enforcement reasonable sentence is passed and, ultimately, justice of criminal penalties is achieved.
We hope that the above mentioned provisions on the basic theoretical background of the issues of qualification of crimes will help English-speaking lawyers to create at least the general outline about the notion, essence and meaning of the described phenomenon in the criminal law of Ukraine.
Literature:
1. Qualification of the crimes under investigation by the internal affairs bodies : study guide / General edition by V. V. Kovalenko; scientific edition by O. M. Dzhuzha and A. V. Savchenko. – K. : Atika, 2011. – 648 p. (in Ukrainian language).
2. Kuznetsov V. V. Theory of qualification of crimes: textbook / Kuznetsov V. V., Savchenko A. V. / General edition by D.O.L, Prof. V. I. Shakun. – Fourth edition, upgraded. – K.: Alerta, 2012. – 316 p. (in Ukrainian language).
e-mail: kkpnavs@ukr.net
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