Article title Misdemeanor, its Essence and the Procedure of Pre-Trial Investigation and Trial: The Latest Central Asian Approaches, as Compared with the Ones Already Known
Authors

Doctor of Law, Professor, Honored Lawyer of Ukraine, Professor of the Department of Criminal and Criminal Procedure Law National University of «Kyiv-Mohyla Academy» (Kyiv, Ukraine) ORCID ID: https://orcid.org/0000-0002-1304-9298 kunorvahk@gmail.com

 

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 2/2020
Сторінки [119-137]
DOI https://doi.org/10.33498/louu-2020-02-119
Annotation

The author investigates into the issue of defining the concept of misdemeanor as a type of offense, other than a crime and an administrative offense, in the context of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Simplifying Pre-trial Investigation of Certain Categories of Criminal Offenses”.

The article aims – with due regard for the experience of countries which run a parallel course – at finding out optimal models of misdemeanor, legal consequences arising after it is committed, and the associated procedure of its pre-trial investigation and trial.

The article provides a comparative analysis of approaches to the definition of misdemeanor which were applied at the turn of the twentieth century in the post-Soviet Baltic States, and later - in some post-Soviet Central Asian States, as well as those which were applied in the current criminal procedural legislation of Ukraine and in draft laws intended to amend it. It is determined that only the legal nature of misdemeanor different from a crime and an administrative offense is the basis for regarding misdemeanors as a separate type of offense: this is an act which, on the one part, does not cause significant or serious harm in the sense of the Criminal Code of Ukraine and does not pose a threat of causing such serious harm, and on the other part – its nature is not administrative.

Since misdemeanors are regarded as a separate type of offense, liability for them should be provided for by a separate law. The possibility of simplifying the relevant procedure depends on certain factors, in particular: the act is committed in the obvious conditions, i.e. when the fact that the act is committed and the person who committed it are obvious; judicial penalty (punishment) is imposed for the act which the person who committed it can serve without breaking his/her social ties and without creating excessive burdens for him/her; if the person denies the obvious fact of the offense committed by him/her and refuses to comply with the penalty (punishment), a serious risk arises for him/her of being convicted according to the general procedure and to be sentenced to a more severe penalty (punishment); the victim is ready to reconcile because the material and moral damages inflicted are compensated fully or partially – they incline the person towards pleading guilty, acknowledging the evidence, indemnifying the harm caused to the victim and reconciling with the latter. Ukrainian legislation may provide for at least three separate procedures of investigation and adjudication of misdemeanors.

 

Keywords misdemeanor; criminal offense; crime; procedure for pre-trial investigation of misdemeanors; procedure for trial of misdemeanors
References

Bibliography

Journal articles

1. Dmytruk M, ‘Kryminalnyi prostupok: analiz deiakykh zakonodavchykh initsiatyv’ [‘Criminal Misdemeanor: Analysis of Some Legislative Initiatives’] [2015] 2(5) Visnyk Asotsiatsii kryminalnoho prava Ukrainy 89–96 (in Ukrainian).

2. Zadoia K, ‘Sproshchene provadzhennia shchodo kryminalnykh prostupkiv za Kryminalnym protsesualnym kodeksom Ukrainy 2012 roku ta zakonodavstvom yevropeiskykh derzhav’ [‘Simplified Proceedings for Criminal Misdemeanors under the Criminal Procedure Code of Ukraine of 2012 and under Legislation of European States’] (2015) 1 Visnyk kryminalnoho sudochynstva 31–2 (in Ukrainian).

 

 

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