ISSUES OF APPLICATION AND IMPROVEMENT OF CRIMINAL PROHIBITION AGAINST ILLEGAL LOGGING
Journal Title: Юридичний науковий електронний журнал - Year 2016, Vol 6, Issue
Abstract
Taking into account achievements of criminal law doctrine and based on the analysis of the case law, issues of interpretation and application of Article 246 of the Criminal Code of Ukraine “Illegal Logging” are considered. Proposals for the improvement of this criminal law prohibition are made. In particular, it is stated that de lege lata cutting dried fallen trees, which, along with the green plants are element of the forest, when taking into account specific circumstances, can be viewed as an insignificant act, devoid of public danger (ch. 2, Art. 11 of the Criminal Code of Ukraine). However, it is pointed out that the issue of attributing dead wood to the object of illegal logging should be solved through proper clarification of the disposition of Article 246 of the Criminal Code of Ukraine. Such option of solving the mentioned problem is supported, in particular, by the need to follow the principle of legal certainty. The issue of what type of logging has to be recognized illegal is discussed. Considering the blanket nature of the disposition of the researched criminal law prohibition, the court in each case of its application should clearly identify which provisions of certain normative acts in the area of forest relations regulation have been affected by the accused and also should be referred to. It is shown that courts do not always provide proper specification of charges. Given the fact that the characteristic of illegality of logging can be interpreted in many ways, the suggestion to directly consolidate major types of illegal use of appropriate natural resource in Article 246 of the Criminal Code of Ukraine is expressed. Such step, among other things, would allow to strengthen informational and educational capacity of the specified criminal law prohibition. Current practical issues related to the establishment of such socially dangerous consequences of illegal logging as causing significant damage are displayed. The wrongfulness of the formula “substantial harm” = “property damage of any amount” which is sided by some courts is proved. Arguments in favor of the legislative resolution of issues related to the definition of material harm, caused by illegal logging as a crime establishing feature are expressed. The position according to which the concept of logging should cover not only the separation of the tree or shrub from roots or uprooting (removal of the stand with roots), but also their damage to the state of cessation of growth is argued. With this regard, the disposition of Article 246 of the Criminal Code of Ukraine requires clarification. The issues of correlation between illegal logging and offenses in the area of official service – both in terms of the current Criminal Code of Ukraine, and in terms of its improvement are discussed.
Authors and Affiliations
О. О. Дудоров, Є. О. Письменський
Keywords
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