Analysis of the constructive flaws and shortcomings of Article 435-1 of the Criminal Code of Ukraine and the search for ways to eliminate them

The article is dedicated to the study of the structural flaws and deficiencies of Article 435-1 of the Criminal Code of Ukraine, “Insult to the Honor and Dignity of a Serviceman, Threat to a Serviceman,” which, under the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Strengthening Criminal Liability for the Manufacture and Distribution of Prohibited Information Products” No. 2110-IX, which came into force on March 16, 2022 (hereinafter referred to as Law No. 2110-IX), was included in Section XIX of the Criminal Code of Ukraine “Criminal Offenses Against the Established Order of Military Service (Military Criminal Offenses).” The author analyzed the disposition of Article 435-1 of the Criminal Code of Ukraine and highlighted several contentious issues, in particular: the placement of the article in Section XIX of the Criminal Code of Ukraine, which does not correspond to the generic object of this criminal offense and its subject composition, as a result of which the jurisdiction of the criminal offense provided for in Article 435-1 of the Criminal Code of Ukraine falls simultaneously under two pre-trial investigation bodies, such as the Security Service of Ukraine and the State Bureau of Investigation; the presence in the disposition of the article of an unnecessary limitation regarding the duration and the range of servicemen to whom this article applies. The impact and consequences of the existing shortcomings on the practical application of the examined provision are described, such as the violation of the principle of legal certainty and the ambiguity of the legal norm, as well as the unclear mechanism for the application of such a norm in practice. Based on the analysis, the author provided recommendations for eliminating the shortcomings described in the article through legislative improvement of this norm, namely: moving the norm to Section I of the Criminal Code of Ukraine by supplementing it with an independent article; adjusting the disposition of the article by expanding the range of persons who can be victims of this criminal offense, as well as removing the wording “armed aggression of the Russian Federation” from the disposition and supplementing it with more general formulations like “armed aggression” and “armed conflict.”