ON THE PROBLEMS OF CRIMINAL RESPONSIBILITY FOR THE PRODUCTION AND DISTRIBUTION OF MATERIALS THAT JUSTIFY THE ARMED RUSSIAN AGGRESSION (PART 2 OF ART. 4362 OF THE CRIMINAL CODE OF UKRAINE)

Abstract

The study clarified the meaning of the concept of "materials" as the subject of a crime under Part 2 of Art. 4362 of the Criminal Code of Ukraine, which should be understood as a wide range of objects that have physical or electronic parameters, for example: documents; content in newspapers, magazines; messages on television or radio; publications on the Internet, in particular on social networks; photographs; drawings, pictures, collages; videos; musical works, audio recordings; literary works; postcards, souvenirs; postage stamps; sculptures; graffiti, inscriptions on the walls; labeling of consumer goods; merch and others. The features of materials as the subject of a crime under Part 2 of Art. 4362 of the Criminal Code of Ukraine are established, namely: 1) artificial origin, i.e. creation in the process of purposeful human labor; 2) expression in any objective form (both embodied and digital), which implies the presence of physical parameters that can be measured; 3) informational nature; 4) the presence in them of expression of the relevant position of criminal offender regarding the specified socially dangerous phenomena; 5) the ability to be visually perceived by other people; 6) the possibility of being distributed, which involves separation of materials from the source of their production and subsequent distribution by bringing to attention of other persons; 7) creative character which is reflected in the application of intellectual and / or physical efforts in the production of materials. The problems associated with the application of this norm in practice are outlined, and ways to solve them are proposed. In particular, with regard to the problem of criminal law qualification of "likes" and other reactions in social networks, they should be considered precisely as a manifestation of the user's attitude to a certain publication (post, material), which in itself does not constitute part of a criminal offense under Art. 4362 of the Criminal Code of Ukraine. If such a reaction leads to placing the publication on the user's page and/or bringing it to the attention of other persons, then in order to incriminate a person with a crime under Part 2 of Art. 4362 of the Criminal Code of Ukraine requires proof of a person's direct intention to distribute the publication in such a way. With regard to the problem of qualification of text posts or comments it was concluded that the specified actions may fall under both Part 1 and Part 2 of Art. 4362 of the Criminal Code of Ukraine, depending on whether they have characteristics of materials.