Problematic Issues of the Objective Element of the Offence of Illegal Transfer of Persons Across the State Border of Ukraine
DOI:
https://doi.org/10.33270/05267202.26Abstract
Abstract. In the course of Ukraine’s development as a rule-of-law and democratic state, as well as in the context of intensified European integration processes, issues of effective criminal law counteraction to cross-border crime, in particular the illegal transportation of persons across the State Border of Ukraine, have acquired particular relevance. This study is devoted to a comprehensive analysis of the objective element of the criminal offense provided for in Article 332 of the Criminal Code of Ukraine, taking into account current challenges and trends in law enforcement practice. The article elucidates the content of the socially dangerous act as a mandatory feature of the objective element and identifies the multiplicity of its forms of manifestation, encompassing the direct illegal transportation of persons across the State Border of Ukraine, the organization of such transportation, the management of the relevant actions, as well as facilitation thereof by providing advice, instructions, means, or by removing obstacles. Particular attention is paid to the characterization of the optional features of the objective element, including the method, place, time, and circumstances of the commission of the criminal offense, as well as the establishment of a causal link between the act and its consequences. On the basis of an analysis of judicial practice and doctrinal approaches, it is substantiated that the corpus delicti of this criminal offense has a truncated (formal) structure, and that criminal liability of an organizer or manager may arise irrespective of the actual crossing of the State Border by the persons in respect of whom organizational or facilitating actions were carried out. It is established that the legislative construction of the provision imposes heightened requirements for proving the substance of organizational activity and the limits of criminally punishable facilitation. Typical law enforcement issues have been identified, related to the interpretation of the forms of facilitation, the distinction between organization and management, as well as the determination of the moment of completion of the criminal offense and the scope of liability of individual accomplices. This necessitates clarification of the structural features of the objective element and the development of unified approaches to their application in order to ensure legal certainty and the consistency of judicial practice. The results obtained may be used in further academic research and law-making activities aimed at improving legislative drafting techniques and enhancing the effectiveness of criminal law measures against illegal migration.
Keywords: objective element; act; organization; facilitation; management; aiding and abetting; transfer of persons; State Border of Ukraine.
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