PROBLEMS OF CRIMINALIZATION OF ENVIRONMENTAL OFFENSES IN THE CONTEXT OF THE EU ACQUIS

Abstract

The article is devoted to determining the prospects for the implementation of Directive (EU) 2024/1203 of the European Parliament and of the Council of 11 April 2024 on the protection of the environment through criminal law, which replaces Directives 2008/99/EC and 2009/123/EC (hereinafter referred to as the Directive), into the criminal legislation of Ukraine in terms of criminalizing environmental offences. A comparative analysis of the provisions of this new international legal act, the current Criminal Code of Ukraine and the draft new Criminal Code of Ukraine, which deal with environmental pollution, has been carried out. It is established that, given the imperative nature of the provisions of the Directive and Ukraine’s European integration aspirations, the domestic legislator will have to depart from the established canons of rulemaking in terms of constructing prohibitive norms of the Special Part of the Criminal Code with blanket provisions, de lege ferenda directly indicating that violations of the provisions of the relevant EU regulations are criminally punishable acts. It is proven that the draft Criminal Code of Ukraine should provide for the punishment of environmental pollution and ionizing radiation, as well as the import, export and use of ozone-depleting substances, mixtures and products containing them. Also, its relevant articles should be expanded by indicating such a variable type of waste or secondary raw material management as transportation. The provisions of the Criminal Code of Ukraine, which do not provide for the differentiation of liability for intentional and negligent manifestations of environmental pollution, which are not consistent with the Directive, are critically assessed. At the same time, it is shown that both the current and the projected criminal legislation of Ukraine do not require changes arising from the Directive in terms of recognizing passive environmental pollution as criminally unlawful, as well as the “regulatory” illegality of such behavior. It is argued that the most objective and at the same time formalized expression of the environmental danger of pollution of various elements of the environment is the basis for recognizing the property damage indicator established in accordance with certain methods, which should appear in the relevant criminal law norms as a criminal offense, which, among other things, will make it possible to fulfill the directive requirement regarding the distinction between criminal and administratively punishable violations of environmental legislation.