Fulfillment of the duty & right to protect the Fatherland, independence and territorial integrity of Ukraine as a circumstance that excludes criminal wrongdoing

Abstract

Until 2022, the right of a person to self-defense of the independence and territorial integrity of Ukraine was not considered as an independent circumstance in the system of circumstances that exclude the criminal illegality of the act. 15.03.2022 Section VIII of the Criminal Code of Ukraine is supplemented by Article 43-1 «Fulfillment of the duty to protect the Fatherland, independence and territorial integrity of Ukraine». There is a contradiction between the title of Article 43-1 of the Criminal Code of Ukraine and its content. The title of the article refers to the «duty» to protect the Fatherland, independence and territorial integrity of Ukraine, and the content - to the «right» to such actions.
Conditions of legality of this circumstance: the basis - armed aggression of the Russian Federation or aggression of other country; the nature of the act − action or inaction aimed at repelling and deterring armed aggression by the Russian Federation or the aggression of another country; situation - an act committed under martial law or during an armed conflict; the direction of harm - the life or health of the person committing such aggression, or law enforcement interests; limits of harm - without signs of torture or use of means of warfare prohibited by international law, other violations of laws and customs of war provided by international treaties, the binding nature of which has been approved by the Verkhovna Rada of Ukraine; Proportionality of harm - must be commensurate with the danger of aggression or the situation of repulsion and deterrence, be necessary to achieve a significant socially useful goal in a particular situation and not endanger the lives of others or the threat of environmental catastrophe or other major emergencies.
In Art. 43-1 of the Criminal Code of Ukraine there are signs of other circumstances that exclude the criminal illegality of the act - the necessary defense (Article 36) and justified risk (Article 42). The right to defend the Fatherland, independence and territorial integrity of Ukraine is a special kind of necessary defense.