For a full-fledged analysis of a criminal offense, in addition to the identity of the criminal and his/her motive, the victim of the crime plays an important role, more precisely, the level of his/her victimization. The level of victimization determines the probability that a person will become a victim of a criminal offense. Within the framework of criminology, the concepts of victim and suffered individual are identical, therefore, within the scope of this study, we will use both terms. However, we consider it necessary to remind that a person's acquisition of the status of a victim determines his/her range of procedural rights and obligations (Article 55 of the Criminal Procedure Code of Ukraine), which distinguish him/her from other participants in criminal proceedings. In turn, the concept of a suffered person is not fixed in the current legislation, therefore, within the framework of criminal proceedings, such a person will not be able to enjoy the same scope of rights as the victim.
In the theory of criminology, there are many classifications of victim behavior. Ukrainian scientific criminologists distinguish the following types: 1) provoking behavior; 2) positive or non-provoking behavior; 3) neutral behavior; 4) passive behavior [3, p. 150].
Determining the role of the victim's behavior is important not only in victimology as a science, but also in the judicial practice of national courts and the ECHR. The issue of victimology is most acute in cases against sexual freedom and sexual integrity of a person. Quite often, the defense party in cases under Art. 152 of the Criminal Code of Ukraine tries to prove the suspect's lack of guilt by referring to the provocative behavior of the victims, their state of alcohol, drug or other intoxication. We suggest considering the position of the Supreme Court in this category of cases. In the decision of December 8, 2021, in case No. 566/1420/19, the Supreme Court noted the following: "According to the provisions established in law enforcement practice, the state of alcoholic or other intoxication of the victim; her behavior before the event; her neglect of personal safety measures; the moral face of the victim and her way of life; immoral or other victim behavior of the victim, who may have deliberately provoked the criminal's sexual behavior with the intention of stopping further acts of a sexual nature against her, do not exclude criminal liability under Art. 152 of the Criminal Code of Ukraine [2]". It follows from this that even provocative behavior, which, according to the classification, maximally increases the risk of committing a crime against a person, is not a basis for recognizing the absence of a crime in the actions of the accused.
In the practice of the ECHR, the issue of victim behavior in cases against sexual freedom and personal integrity is considered in combination with Art. 8 of the European Convention on Human Rights (the right to respect for private and family life). The position of the Court in the case of J.L. v. Italy (no. 5671/16) is indicative., where the Court found unsubstantiated the reference to the red lingerie "displayed" by the applicant during the evening, as well as the comments about her bisexuality, relationships and casual sexual relations. Likewise, the Court recognized as inappropriate the considerations regarding the "ambivalent attitude towards gender", which were revealed by the appeals court, in particular from its creative decisions" [4]. In this decision, the ECHR clearly determined that the applicant's previous relationship with the accused, her behavior on the day of the crime, sexual orientation and cultural activities are important for establishing the circumstances of the case, but are not relevant for assessing the veracity of her testimony and the criminal responsibility of the accused.
It is worth remembering that the victim's behavior plays an important role not only in criminal offenses related to sexual freedom and personal integrity, but also in other categories of cases, such as, for example, causing intentional grievous bodily harm in case of exceeding the limits of necessary defense (Article 124 of the Criminal Code of Ukraine). In case No. 404/2605/20, the court of first instance qualified the actions of the accused under Art. 124 of the Criminal Code of Ukraine. The appellate court overturned the sentence and adopted a new one, by which the accused was found guilty of intentional grievous bodily harm (part one of Article 121 of the Criminal Code of Ukraine). The Supreme Court's ruling dated January 19, 2022 reads as follows: "In view of the grounds for necessary defense, defined in Art. 36 of the Criminal Code, the victim's behavior, which manifests itself in any other form, other than socially dangerous encroachment, and which provoked violence on the part of other persons, does not exclude the fact that a person will find himself in a situation of necessary defense" [1]. This case is special in that it examines the victim behavior not of the victim, but of the accused. According to the circumstances of the case, the behavior of the accused provoked a fight, during which numerous damages were caused to his health. In response, the accused pulled out a knife and injured the victim. It was established that the provocative behavior of the accused does not exclude the occurrence of the state of necessary defense.
Given the above positions of the courts, we can draw the following conclusions:
1) Provocative behavior of the victim, which is expressed in actions/inaction, his/her lifestyle, activities, as well as being in a state of intoxication, does not relieve the offender of responsibility and is not a reason for exemption from responsibility and reclassification of the crime to a milder one.
2) In some cases, victimization is inherent not only to the victim, but also to the accused, and the provocative behavior of the latter does not exclude the emergence of a state of necessary defense and taking appropriate actions for the purpose of protection.
Literature:
1. Постанова Верховного Суду від 19 січня 2022 року у справі № 404/2605/20 URL: https://reyestr.court.gov.ua/Review/102634463 (last access: 01.11.2023).
2. Постанова Верховного Суду від 08 грудня 2021 року у справі № 566/1420/19 URL: https://reyestr.court.gov.ua/Review/101829946 (last access: 01.11.2023).
3. Кримінологія : навчальний посібник-практикум (для здобувачів вищої освіти, що навчаються на першому (бакалаврському) рівні вищої освіти (081 «Право», 262 «Правоохоронна діяльність») / С.А. Шалгунова, А.М. Орлеан, О.С. Скок, Т.В. Шевченко, Ю.М. Крамаренко, Г.В. Барабаш, Ю.В. Волошина, І.В. Шило / За заг. ред. к.ю.н., доц. С.А. Шалгунової / Дніпро : Дні пропетровський державний університет внутрішніх справ, 2020. – 332 с.
4. CASE OF J.L. v. ITALY - [Ukrainian Translation] summary by the Supreme Court of Ukraine URL: https://hudoc.echr.coe.int/eng#{"fulltext":["5671/16"],"languageisocode":["UKR"],"appno":["5671/16"],"documentcollectionid2":["CHAMBER"]} (last access: 01.11.2023).
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Scientific adviser: Serhii Tarasiuk, PhD, National aviation university, Kyiv, Ukraine
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