The European Commission drew attention to the need for further development of the justice system and protection of fundamental human rights in Ukrainian legislation in accordance with the EU’s provisions on Justice, Freedom and Security when deciding to support Ukraine’s candidacy for EU membership. A significant role in that is played by the development of Ukraine’s criminal legislation with its focus on the protection of fundamental rights and freedoms and security of citizens.

At the same time, there are a significant number of problems caused by a certain novelty of the subject matter, lack of experience and difference in legal cultures in the practice of approximation of national criminal legislation to EU law. The purpose of the article is to examine, the main methodological issues of approximation of national criminal legislation of Ukraine to the EU acquis, taking into account the compliance of national criminal law measures with the consolidated definition of crime and victimization rate in the State and the provisions of EU supranational law, based on the study of modern European literature in the field of criminal policy issues.

 The author examines the basic algorithm for working out the approximation: analysis of current EU legislation, case law of the European Court of Justice, European Commission directives, procedures for bringing to justice for violation or non-compliance with EU legislation, and draft EC Directives on criminal policy (substantive, procedural, procedural, penitentiary and preventive aspects) or related to them.

Special attention is paid to the study of the case law of the European Court of Justice and the compliance of Ukraine’s criminal policy with the concept of the dominance of the protection of human rights and security, not the state, with the general principles of criminalization and penalization of European criminal law.

Legality and subsidiarity in the context of ultima ratio, expediency and proportionality are essential, if not the main elements of the procedure of elevation to aquis, taking into account the primacy of human rights and the rights of victims of crime.

 Hence, equality, legal certainty, proportionality, predictability, subsidiarity, legality as principles of criminal law and socio-legal foundations of criminal policy should be considered exclusively in the vector of the primacy of human rights and safety of victims of criminal offenses, complementarity of coercion and decent treatment, compensation, restitution and rehabilitation, satisfaction, and guarantees of non-recurrence of harm to victims of criminal offenses, taking into account public interests and requirements of courteous prevention of crime.

Models of approximation based on the primacy of the exclusive hierarchy of aquis over the requirements of national law, or models of using the harmonization of individual contractual obligations under each treaty, framework agreement or directive, do not always work. According to European researchers, there is a third, security approach, according to which the state, in order to temporarily protect personal and state security, can, through closer control by civil society and itself, impose stricter restrictive measures than those provided for by European law. However, it is up to Ukraine to choose the right path.

Bibliography

Authored books

1. Adán Nieto Martín, Global Criminal Law. Postnational Criminal Justice in the TwentyFirst Century (Palgrave Macmillan Cham 2022) (in English).

Journal articles

 2. Buisman S, ‘The Future of EU Substantive Criminal Law: towards a Uniform Set of Criminalisation Principles at the EU level’ (2022) 30 European journal of crime, criminal law and criminal justice 161–87 (in English).

3. Satzger H, ‘The Harmonisation of Criminal Sanctions in the European Union: A New Approach’ (2019) 2 Eucrim 115. DOI: https://doi.org/10.30709/eucrim-2019-007 (in English).

 4. Zoumpoulakis K, ‘Approximation of criminal sanctions in the European Union: A wild goose chase?’ (2022) 13 New Journal of European Criminal Law 333–45. https://doi. org/10.1177/20322844221119732 (in English).

5. Tuliakov V, ‘Aproksymatsiia u kryminalnomu zakonodavstvi’ (2009) 47 Aktualni problemy derzhavy i prava 7–11 (in Ukrainian).

Conference papers

6. Hurtovenko O, ‘Kryminalno-pravova balansolohiia: stysla kharakterystyka’ v Yevropeiskyi vybir Ukrainy, rozvytok nauky ta natsionalna bezpeka v realiiakh masshtabnoi viiskovoi ahresii ta hlobalnykh vyklykiv KhKhI stolittia: materialy Mizhnar.nauk.-prakt. konf., t 2 (Helvetyka 2022) 278 (in Ukrainian).

 7. Tuliakov V, ‘Aquis communautare ta kryminalno-pravovi rozvidky: shliakhy pidnesennia do idealu’ Ukrainska kryminalna yustytsiia v umovakh viiny: materialy VIII (XXI) Lvivskoho forumu kryminalnoi yustytsii (LvDUVS 2022) 237–42 (in Ukrainian).

8. Tuliakov V, ‘Subsydiarnist kryminalizatsii u yevropeiskomu pravi’ v Kryminalna yustytsiia v Ukraini: realii ta perspektyvy: materialy konferentsii (LDUVS 2022) 96–101 (in Ukrainian).