Ensuring the resilience of critical infrastructure facilities in the dimension of criminal law policy
DOI:
https://doi.org/10.15330/apiclu.68.1.83-1.91Keywords:
criminal law policy, object of criminal law protection, implementation of EU legislation, critical infrastructure, criminalization, crimes against the foundations of national security, criminal offenses against public safety, criminal offenses in the energy sector, criminal offenses against property, criminal offenses against public health, criminal offenses against traffic safety and transport operation.Abstract
The article is devoted to a comprehensive analysis of the transformation of the national criminal law policy of Ukraine in the context of adaptation to modern European standards of critical infrastructure (CI) security. The main attention is paid to the study of the fundamental paradigm shift declared in Directive (EU) 2022/2557 (CER Directive), which consists in the transition from the concept of «protection» of physical assets to ensuring their «resilience». The author argues that for criminal law doctrine this transition means the need to rethink the object of criminal encroachment: the focus of protection shifts from the material integrity of structures («concrete and iron») to the functional ability of the system to continuously provide vital services to society.
The paper analyzes in detail the challenges associated with the expansion of sectoral protection from two (energy and transport) to eleven critical industries, which creates a complex “system of systems” and actualizes the concept of “cascading effects”. It is proven that criminal liability in this area should be differentiated not only by the amount of direct damage, but also by the scale of systemic destabilization caused by the “domino effect” when attacking interconnected objects. Special emphasis is placed on the implementation of the “all-hazards approach” and the risk-oriented approach, which requires criminal law policy to transition to preventive protection of potentially vulnerable infrastructure nodes.
Considerable attention is paid to the problem of terminological inconsistency between the current Criminal Code of Ukraine and relevant legislation, in particular regarding the definitions of “critically important object” and “critical subject”.
It is emphasized that effective criminal law policy should be based on the consolidation of norms and harmonization of national standards with the requirements of the CER to ensure national security in the context of dynamic hybrid threats and military operations.
