Problems of determining the subject of non-execution of the court sentence

• Published in: Науковий вісник Ужгородського національного університету. Серія Право Vol. 4; no. 86; pp. 292 - 298
• Main Author: Krushynskyi, S. A.
• Format: Journal Article
• Language: English
• Published: 18.01.2025
• ISSN: 2307-3322; 2664-6153
• DOI: 10.24144/2307-3322.2024.86.1.4.44

In the article the author emphasizes that non-execution of court decisions in Ukraine is currently a systemic problem, which is incompatible with the right to a fair trial, stipulated in Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Taking into account the position of the Supreme Court, it is concluded that in addition to the general obligatory features (status of an individual, sanity, age from which criminal liability may arise), the subject of non-execution of a court sentence has an inherent obligatory special feature – the presence of a person’s obligation and real opportunity to enforce this court sentence. The scientific approach and judicial practice regarding criminal liability under Art. 382 of the Criminal Code of Ukraine of a person convicted of committing a criminal offense by a relevant court sentence are criticized, because the Criminal Code of Ukraine also contains other criminal law prohibitions aimed at ensuring the implementation of sentences passed by courts – this is evasion of punishment not related to deprivation of liberty, evasion of serving a sentence in the form of restriction of liberty and in the form of deprivation of liberty, intentional failure to fulfill an agreement on reconciliation or on admission of guilt. According to the rules for overcoming the competition of general and special norms of the law on criminal liability, it is the special norm that should be applied in this case. The author proves that depending on the circumstances such actions of a person convicted of committing a criminal offense by a court sentence may be qualified under Art. 389, 389-1, 390, 390-1 of the Criminal Code of Ukraine. The subjects of non-execution of a court sentence may be officials of the relevant bodies (institutions) that are obliged to execute the court sentence. The legislator also uses the signs of a special subject to differentiate criminal liability providing for them as qualifying signs – the commission of such acts by an official, an official who holds a responsible or especially responsible position, a person previously convicted of a crime provided for in Art. 382 of the Criminal Code of Ukraine. The opinion on changing the term «person previously convicted of a crime provided for in this Article», used by the legislator in Part 3 of Art. 382 of the Criminal Code of Ukraine, to the term «person who has a conviction for a crime provided for in this Article» is supported.