Criminal-Legal Protection of Secret Information Belonging to the State, According to the Draft Criminal Code of Ukraine: Separate Discussion Provisions

Abstract

The article analyzes separate provisions of the draft of the new Criminal Code of Ukraine, dedicated to the regulation of responsibility for criminal offenses against the secrecy of information belonging to the state. Debatable aspects of the considered projected prescriptions were identified, as well as recommendations for their improvement were developed.
In particular, as a result of the writing of the article, the need to correct most of the features provided for in the relevant section of the Project, which increase the severity of the analyzed crimes (both by one and two degrees), was proven, as a result of which their content should be brought into line with those developed in the criminal law doctrine requirements for «qualifying» features as a means of differentiating criminal liability. The justification of giving the appropriate qualifying meaning to certain consequences of the actions under consideration is also argued.
The expediency of changing the criminal legal status of certain criminal offenses under consideration is substantiated, the degree of severity of some of which currently appears to be unjustifiably understated (primarily related to misdemeanors), while others, on the contrary, are somewhat overstated.
The expediency of: a) clarification of the features of the subject of the crime provided for in Art. 9.2.3; b) replacement of the wording «under martial law» used in Articles 9.2.4 and 9.2.5 with «in a special period», which in the future would make it possible to qualify according to these norms the corresponding acts committed in the conditions of an actually ongoing armed conflict, which was not accompanied by the declaration of martial law; c) return of the «special» status of the subject, which is characteristic of the current criminal legislation, capable of bearing responsibility for the loss of a carrier of information containing a state secret (Article 9.2.7 of the Project). In addition, it is emphasized that when improving the relevant provisions of the Project, it is necessary to take into account positive relevant foreign experience (primarily of European countries).