Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 70
2021
Recibido 28/05/2021 Aceptado el 26/08/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
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Ma ría Eu ge nia Soto Hernández
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Carmen Pérez Baralt
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Pedro Bracho Grand
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 39, Nº 70 (2021), 385-406
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Protection of Human Health:
Medical and Legal Aspects
DOI: https://doi.org/10.46398/cuestpol.3970.24
Kateryna Katerynchuk *
Ihor Diorditsa **
Inna Kovalenko ***
Sergij Kyrenko ****
Nina Trotsiuk *****
Abstract
The purpose of study is to develop scientically based
recommendations for introducing amendments and additions to
existing legislation, as well as the development of new regulatory
legal acts and measures, aimed at systematic counteraction to
criminal oences against human health. In paper have been used
a systematically structural method (to investigate the concept of
harm to human health). Using the statistical method by degree of
coverage of units a one-time statistical questionnaire (statistical observation
of a certain part of the units of the statistical population based on the
principles of voluntariness of responses and the possibility of incomplete
return from respondents of lled statistical forms) was held. The results
of the study the following points are proposed: to consider the protection
of human life and body at the international level to be interconnected
associated categories forming an organic unity, which require equivalent
protection; to modify an existing criminal legislation in terms of criminal
oences against health of a person; to oer a range of proposals to detail
signs of bodily injury and take them into account during the developing of
new Rules of forensic medical determining the severity of bodily harm.
* D.Sc. in Law, Professor of the Private and Public Law Department, Kyiv National University of Technologies
and Design, 2 Nemirovich-Danchenko Str., 01011, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-
6700-2831. Corresponding author: Email: katerynchukkatrin@i.ua
** D.Sc. in Law, Professor of the Private and Public Law Department, Kyiv National University of Technologies,
and Design, 2 Nemirovich-Danchenko Str., 01011, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0001-
7765-6591. Email: diorditsaihor@i.ua
*** Ph.D. in Law, Associate Professor, of the Private and Public Law Department, Kyiv National University
of Technologies, and Design, 2 Nemirovich-Danchenko Str., 01011, Kyiv, Ukraine, ORCID ID: https://orcid.
org/0000-0001-7595-777X. Email: kovalenkoinna@i.ua
**** Ph.D. in Law, Associate Professor of the Law Department, Kyiv National Linguistic University, 73
Velyka Vasylkivska Str., 03680, Kyiv, Ukraine, ORCID ID: https://orcid.org/0000-0002-8180-0960.
Email: kyrenkos@i.ua
***** Ph.D. in Law, Deputy of the Dean, Faculty of Law, Kyiv National Aviation University, 1 Liubomyra
Huzara Avenue, 03680, Kyiv, Ukraine, ORCID ID: https://orcid.org/0000-0002-5943-8694. Email:
trotsiuknina@i.ua
386
Kateryna Katerynchuk, Ihor Diorditsa, Inna Kovalenko, Sergij Kyrenko y Nina Trotsiuk
Protection of Human Health: Medical and Legal Aspects
Keywords: damage to human health; medical malpractice;
emasculations; suering; crimes against health.
Protección de la salud humana:
aspectos médicos y jurídicos
Resumen
El objetivo del estudio es elaborar recomendaciones con base cientíca
para introducir enmiendas y adiciones a la legislación vigente, así como
el desarrollo de nuevos actos jurídicos reglamentarios y medidas,
destinados a contrarrestar sistemáticamente los delitos contra la salud
humana. Se ha utilizado un método sistemáticamente estructural (para
investigar el concepto de daño a la salud humana). también se utilizó el
método estadístico por grado de cobertura de las unidades y se realizó un
cuestionario estadístico único (observación estadística de una cierta parte
de las unidades de la población estadística sobre la base de los principios
de voluntariedad de las respuestas y la posibilidad de retorno incompleto
de los encuestados de los formularios estadísticos cumplimentados). En
los resultados del estudio se proponen los siguientes puntos: considerar
la protección de la vida y el cuerpo humanos a nivel internacional como
categorías interconectadas que forman una unidad orgánica, que requiere
una protección equivalente; modicar la legislación penal existente en
términos de delitos contra la salud de una persona; ofrecer una serie de
propuestas para detallar los signos de lesiones corporales y tenerlos en
cuenta durante el desarrollo de nuevos Reglas de medicina forense que
determinan la gravedad de los daños corporales.
Palabras clave: daños a la salud humana; mala praxis médica;
emasculaciones; sufrimiento; delitos contra la salud.
Introduction
There is several criminal oenses against health in a report of General
Prosecutor’s Oce of Ukraine (2021). It states that there were 36253
oences in 2016; 29518 – in 2017; 29359 – in 2018; 29678 – in 2019;
27292 – in 2020. According to the summarized statistical information,
it is possible to draw a conclusion that such criminal oences are not a
singular phenomenon in Ukraine. Humanity is faced with brutality and
physical violence every day. This leads to various negative consequences
(open and closed fractures of the bones of the fornix or the base of the skull,
brain contusions of severe degree, both with or without compression of
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brain, closed injuries of the spinal cord in the cervical spine, abdominal
injuries that have penetrated the abdomen, etc.). Every country is actively
engaged in combating oences against health and convert into a fact
various programs and measures aimed at counteracting this negative
phenomenon. The research of criminal oences against human health has
been carried out since 1991 in Ukraine. However, they were all based on
the provisions of the CC of Ukraine 1960. Scientic developments in this
sphere have intensied with the adoption of the Code 2001, considering
changes in legislation. Nevertheless, the studies in the eld of health care
from criminal encroachments were not comprehensive and did not fully
reveal all signs of bodily harm.
For the rst time in the theory of domestic criminal law 2010 Mitrofanov
and Linov investigated “Injuries (criminal and medical aspects)” (2010). The
authors proposed to change the terminology of bodily harm and examined
the types and signs of bodily injuries in criminal and medical terms, which
are positive aspects of work. However, there are some inaccuracies in the
work, regarding the medical aspects of injuries and the classication of
criminal oences against human health.
Nakonechnaya carried out a thorough research “Violence as a cross-
cutting criminal concept” in 2016. In his work, the author claries the
content of the concept of violence (2016: 163). According to this denition,
we cannot agree that the violence is intentional because, as the author
further states, the expressions of violence include drubbing, beatings,
torture, torment, ill-treatment, bodily injury, murder, which may also be
imprudent. The consequences, listed by the author – physical (to a person
or vertebrate animal) and (or) mental harm (to a person) can be caused not
only by physical pressure, but also by mental pressure.
A dissertational work by Lakhova “Criminal Liability for Intentional
Trivial Bodily Injury, Beating, Torture” (2017) contains provisions
insuciently reasoned by the author. The author’s proposal concerning
the advisability of drawing up a list of such injuries and conditions, which
is generally accessible to persons with no special medical education, is
controversial. “This can be arranged by classifying the types of specied
injuries and condition groups” (Lakhova, 2017). However, it is impossible
to attach in the directory for law enforcement practitioners, solving
criminal oenses related to causing bodily injuries and performing criminal
investigations about these criminal oenses, all the issues. Even if we
consider that this “directory” should be used by the person carrying out
primary qualication, then all the questions related to determining the
severity of bodily injuries are transferred to the employee, but not a person
with specialized knowledge in this area - forensic pathologist. Also, the
proposed author’s denition of bodily harm is not suciently developed.
Firstly, taking the circumstances which exclude criminal wrongfulness of
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Kateryna Katerynchuk, Ihor Diorditsa, Inna Kovalenko, Sergij Kyrenko y Nina Trotsiuk
Protection of Human Health: Medical and Legal Aspects
an act into account, bodily injury is not always unlawful. Secondly, not all
injuries have health harming consequences. In addition, this interpretation
cannot be found in the Rules on forensic determination of the degree of
bodily injury (hereinafter referred to as Rules) (MHU, 1995), because
it contains terminology that is purely legal and not within the scope of
knowledge of forensic experts: “unlawful”, “must”, “socially dangerous
consequences”.
The purpose of the article is to develop scientically based
recommendations for amendments and additions to existing legislation
and to develop new legal and regulatory instruments and measures to
systematically counteract criminal oences against human health.
The assignment: to analyze human health regulations; to identify
deciencies and gaps in legislation which need to be addressed; to propose
possible solutions to problems in the eld of normative protection of human
health.
The object of the study protection of human health; the subject of the
study medical and legal protection of human health.
1. Methods and Materials
The methods of research constitute a certain system, considering the
goals and objectives of the object and the subject of the research. Therefore,
we used the same methods in the pursuance research in the eld of human
health: 1) a comparative-legal method gave an opportunity to evaluate the
legislation on criminal responsibility for the protection of human health
in international documents and to compare these norms of the national
legislation of Ukraine; 2) a systematically structural method was used to
study the duration of harm to a person`s health, taking into account the
interdisciplinary links of the science of criminal law with related sciences -
forensic medicine; 3) a dialectic method – to dene the essence and content
of certain concepts and categories as well as to study other problems in
their development and interconnection. The use of this method has made
it possible to establish a range of issues requiring legislative action; 4) a
dogmatic method of analyzing existing legislation and its application in
order to identify the obvious aspects of legal phenomena through penetration
into the internal essential aspects and connections; 5) a statistical method,
namely a statistical questionnaire survey was also used in the study to
collect data from the questionnaires of 272 general forensic experts from
dierent regions of Ukraine with the exception of Autonomous Republic of
Crimea, Donetsk and Luhansk Regions from January 2019 to May 2020.
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The results of the questionnaire have been used to draw conclusions and
develop practical proposals. The results of the study were synthesized and
systematized by induction method. Conclusions and practically signicant
positions were produced by using the interpretation method. The analysis
of the methods by which the study was conducted indicates the importance
of scientic achievements in this area.
2. Results and Discussion
2.1. Human Life and Health as the Object of Protection
International instruments governed by international law are mandatory
for the states that have ratied them. Among the instruments designed
to protect person`s and citizen`s rights, freedoms and obligations, the
following documents should be emphasized: the Universal Declaration of
Human Rights (UN, 1948); the Convention of the Protection of Human
Rights and Fundamental Freedoms (CE, 1950); the International Covenant
on Civil and Political Rights (UN, 1966a); the International Covenant on
Economic, Social and Cultural Rights (UN, 1966b) and many others. The
analysis of these documents demonstrates that all of them enshrine and
protect a number of traditional guarantees of person`s and citizen`s rights
and freedoms which allow everyone to choose the type of their behavior,
enjoy economic and sociopolitical freedoms and social benets both in the
personal and public interest.
One of the fundamental rights is the right to life, which is a naturally
inviolable human right. Every international instrument includes provisions
to protect the benet. However, during the analyzing of the content of these
documents, we have noticed that they do not fully ensure the realization
of the human right to health. Being a fundamental, inherent, and absolute
right, the human right to health, from our point of view, should be placed
alongside the human right to life. These two categories of “life” and “health”
are naturally interconnected as they are priority common and universally
recognized values from an international law perspective. The main reason
for this is that these time frames are interdependent, mutually supported
and cannot exist in isolation from each other.
Thus, one of the fundamental legal guarantees of human and civil rights
is the right to health. Therefore, the proclamation, at the international level,
of fundamental human rights –to life and health as a single and indivisible
concept - should be the common heritage of the whole human race.
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Kateryna Katerynchuk, Ihor Diorditsa, Inna Kovalenko, Sergij Kyrenko y Nina Trotsiuk
Protection of Human Health: Medical and Legal Aspects
2.2. Harm to Human Health: Issues of Concern
The term “harm to health” is one of the most contradictory denitions,
which belongs not only to criminal law, but also to other sciences - forensic
medicine, labor law, civil law and others. The identication of its types is
equally problematic. We have not found a consensus among most scientists
during the researching of this issue. The denition of “harm to health”,
which is used by the legislator, is ambiguous in its understanding. Harm
to health is characterized by qualitative (nature) and quantitative (degree)
indexes. The nature is determined by the form of pathology caused to the
human body (bodily injury, disease). Scientists besides the term “harm”, use
the term “disorder” and note that this is a change in human health caused
by injury, disease, or pathological condition. It objectively appears to be a
sign of: “Impaired functioning of an organism in comparison with those,
which occurred before the commission of a wrongful act’’ (Sharapov and
Konovalov, 2007: 127). In addition: “It may manifest itself as deteriorating
health status, lowering it to a lower quality level” (Vermel and Gritsaenko,
1997: 43).
The term “bodily harm” is a purely legal denition. It does apply in
medicine. It such a case, the forensic expert would be beyond the scope of the
assigned duties. Moreover, the classication of injuries in medical practice
is based on a specic injury morphology. For example, the disturbance of
the surface layers of epidermis is called abrasion or scratch depending on
the shape and area. In this case, such eects, that is, supercial injury to
the epidermal layer is usually not accompanied by harm to health unless
other external or internal environmental factors are added. “Harm to
health” is a more overarching term than “bodily injury”. Injuries may
occur posthumously, but in such a case they do not harm human health.
The reason for this is the fact that the existing legislation protects only the
health of a living person. Mental illness can also not be a sign of bodily
harm, because it manifests itself in decreasing mental capacity of a person.
That is why it is appropriate to dene this sign as one of the indicators of
bodily harm.
In case of injury to a person`s health, criminal liability is provided for
under the article of the PC of Ukraine. But there may be cases when a person
consents to harm to her health, according to certain circumstances. For
example, there are sports competitions which may be harmful to human
health. It is essential for such sport events to be permitted by competent
authorities. Besides, the injury caused to the participants must not be the
result of intentional violation of established rules.
Rastoropov suggests that “the iniction of harm to a person’s health with
his or her consent is preceded by the totality of the obligatory conditions for
its occurrence. These circumstances include: 1) legal capacity of a person
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(sanity and reaching a certain age); 2) free consent (free expression of the
person’s will, consent to harm to one’s own health); 3) right to consent
(a person has the right to consent to harm his health); 4) timeliness of
the consent (the consent is given before or during the act causing injury
to health); 5) deniteness of the consent (consent must be specied in
relation to the type of harm and the circumstances in which it is given and
in which the harm is caused); 6) purpose of harm (socially useful, neutral,
antisocial)” (2003a; 2003b).
2.3. Bodily Injuries as a Component Part of Health Damage
The objective features of bodily harm constitute oences that criminalize
bodily harm. The consequence of any bodily injury is also the damage caused
by the guilty activities of the subject to human health. Scholars note that “by
using the term “bodily injury” the Penal Code emphasize combating visible
and prevalent types of harm to health of traumatic origin and ignoring the
possibility of violent harm against the background of latent pathology”
(Sharapov and Konovalov, 2007). The term “bodily harm” is a criminal legal
denition. There is no such concept in medicine. It is advisable to replace
the concept of “bodily harm” with the broader concept of “harm to health”.
Bodily injury refers to physical harm and the results of that harm. The
term is used in many types of business insurance to clarify what is covered
by a policy (Bonner, 2020).
The ISO CGL states that bodily injury means bodily injury, sickness,
or disease sustained by a person, including death resulting from any of
these at any time. The current PC of Ukraine still does not contain a clear
denition of the concept of “bodily harm” which has a negative impact on
the practice of applying rules that provide for liability for bodily harm of
various degrees of severity (Tatsiy et al., 2017: 159). There is therefore a
debate among scholars on the denition of this concept in the theory of
criminal law.
An analysis of the publications of scientists and the personal data
of forensic experts (64%) makes it possible to claim that it is sucient
and correct to consider a period of health regret - an impairment of the
anatomical integrity of tissues, organs, or their functions, arising from
the action of one or more factors of the external environment - physical
(mechanical, thermal, barometric, radiant, etc.), chemical, etc.
392
Kateryna Katerynchuk, Ihor Diorditsa, Inna Kovalenko, Sergij Kyrenko y Nina Trotsiuk
Protection of Human Health: Medical and Legal Aspects
Figure 1. Correlation of the concepts “violation of anatomical
integrity...” and “and their functions” in relation to the term
“harm to health”
Source: compiled by the authors based on the results of a sociological survey.
In the denition of harm to health one must put the union “or” between
“violation of the anatomical integrity ...” “and their functions”. Otherwise,
it can be interpreted as a violation of the integrity and function of the organ
in the text. It is advisable to remove biological and mental factors. If we do
not pay attention to the biological factor, all viral and bacterial diseases
(inuenza, syphilis, typhoid fever, cholera, tuberculosis, viral hepatitis,
tetanus, and many others) should be considered harmful to health. Mental
factor is also incomprehensible. It may include quarrel, conict, ghting,
fear, stress. In this case, this may relate to the sphere of psychiatrists but
not of forensic experts.
The criminal legislation of Ukraine distinguishes between bodily
injury by degree of severity: serious injury (article 121 of the Penal Code
of Ukraine), moderate injury (article 122 of the PC of Ukraine) and minor
injury (article 125 of the Penal Code of Ukraine) (VRU, 2001). According to
article 121part 1 of the Penal Code of Ukraine, serious bodily injury is bodily
harm dangerous to life at the time of the injury or resulting in: a) loss of
any organ or its functions; b) genital mutilation; c) mental illness; d) other
health disorder accompanied by a permanent disability by at least one third;
e) interruption of pregnancy; f) irrecoverable face deformation. According
to article 122 part 1 of the Penal Code of Ukraine intentional bodily injury
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is moderate intentional bodily injury which is not life-threatening and does
not have the consequences provided for in the article 121 of the Penal Code
of Ukraine. However, it is such a phenomenon that caused a long-term
health disorder or a signicant permanent disability of less than by one
third. Article 125 of the Penal Code of Ukraine denes types of minor bodily
harm (VRU, 2001). They include part 1 minor bodily injury; part 2 minor
bodily harm resulting in a short-term health disorder or a minor disability.
The rst sign of the intentional grievous bodily harm (article 121 part 1
of the Penal Code of Ukraine) is a danger to life at the time of the injury.
Such a sign of grievous bodily harm is dened by the legislator in since
some bodily injuries may not leave consequences, traces including visible
ones, but at the time of iniction are dangerous to life. When comparing
the signs of grievous bodily harm contained in the Penal Code of Ukraine,
we found some inaccuracies in the Regulations. Therefore, one of the signs
of grievous bodily injury is danger to life (part 2.1.1.a) (MHU, 1995). This
interpretation does not correspond to article 121 of the PC of Ukraine, since
the danger to life must be precisely at the time of the occurrence, which
is further in paragraph 2. 2.1.2 determined that the danger to life is the
damage that occurred at the time of the occurrence (causing) or clinically,
at dierent intervals, cause life-threatening events (part 2.1.3.o) (MHU,
1995) and, without medical assistance, end or may end in death as they
normally do. The Regulations in part 2.1.3 provide an exhaustive list of
possible injuries that are life-threatening at the time of occurrence.
It is clear from some paragraphs that certain injuries to the body are only life-
threatening when accompanied by severe shock or life-threatening phenomena,
that is, it is the severity of the injury that is life-threatening. Therefore, they should
be considered as one of the dening signs of life-threatening injury (Mitrofanov
and Linov, 2010: 471).
In some articles of the Penal Code of Ukraine the legislator notes along
with “danger to life” the phrase “danger to health”. The Rules contain
denitions of only one of them concerning the “danger to human health”. In
scientic literature “health danger” is interpreted dierently. Paragraph 9
of the Resolution of the Plenum of the Supreme Court of Ukraine dated
06.11.2009 No 10 “On judicial practice in cases of crimes against property”
provides clarications “dangerous to life or health violence” (Article 187,
part 3 of article 189 of the Penal Code of Ukraine) is the intentional iniction
on the victim of a minor bodily injury resulting in a short-term health
disorder or insignicant loss of capacity for work, moderate or serious
bodily harm, as well as other violent acts which did not have these eects,
but were dangerous to life or health at the time they were committed.
These include in particular violence that has led to unconsciousness or
a low degree of torture, strangulation, dropping from a height, applying of
electro-shock devices, weapons, special tools etc. (SCU, 2009). According to
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Kateryna Katerynchuk, Ihor Diorditsa, Inna Kovalenko, Sergij Kyrenko y Nina Trotsiuk
Protection of Human Health: Medical and Legal Aspects
the Decree, these are the consequences of bodily harm (articles 121, 122 and
125, part 2, of the Penal Code of Ukraine) and other possible consequences
to which acts causing pain and suering (physical and psychological) can
be attributed. However, it remains unclear what eects can be considered
to be dangerous to life or health at the time they occur.
The Rules on Forensic Determination of Injuries provide explanations
of life-threatening injuries as injuries, at the time of occurrence (causing)
or clinically at dierent intervals cause life-threatening phenomena (cf. P.
2.1.3. b) and which without medical assistance on their normal course end
or may end in death. The prevention of death caused by medical treatment
shall not be taken into account when assessing the threat to the life of
such injuries “(part 2.1.2). However, the terminology “dangerous damage
to health” is inconceivable as there are no clear criteria for distinguishing
them. It is possible to solve this problem by their logical analysis, that is the
threat to life automatically becomes the threat to health, as these categories
are interconnected and mutually conditioned. However, it is impossible to
compare them in enforcement.
Therefore, it is possible to resolve this issue in the following ways. The
rst way is trying to consider actions causing a treat to health as distinct
from those that cause a treat to life. In such case, it can be considered to
be any criminal misbehavior towards a person without the use of violence
which poses a threat to life by its nature, for example, without the use of a
weapon. The second method is to remove the prex “or” and replace the
union “and”. Another way is to leave the phrase “life-threatening violence”,
thus eliminating “dangerous damage to health” in the provisions of the PC
of Ukraine.
In order to avoid contradictions, we consider it useful to dene this
concept in the Rules. A majority (60.8 per cent) of respondents (forensic
experts) indicate that such an innovation is appropriate.
In addition, the Rules also dene “non-life-threatening injuries”
belonging to the severe injuries according to their nal results and
consequences: the loss of an organ or the loss of an organ’s function - loss
of vision, hearing, language, arm, leg and reproductive capacity.
Vision loss must be interpreted as total permanent blindness in both
eyes or a condition where vision is reduced while counting ngers at a
distance of two meters or less (visual acuity in both eyes 0.04 and below).
But qualication issue in case of loss of one of the paired organs (eyeball,
kidney etc.) as one of the signs of severe bodily injury remains unresolved:
As paired organs have a complementary and common function, the total loss
of one such organ may have little immediate overall eect. Impairment of or loss
of the second organ of the pair commonly results in a major increase in disability
(VAC, 2019: n.p.).
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Thus, the loss of one of the paired organs is one of the signs of severe
physical injury - organ loss. The matter was resolved by the Zbarazh District
Court of the Ternopil Region. The accused led a motion at the hearing
supported by his counsel, to appoint a complex forensic examination of the
case. It should be decided either the loss of one testicle with an appendage
is the loss of a whole organ (right and left testicle are functional), or it is
a loss of a whole organ that will no longer be able to perform the function
of reproductive capacity for fertilization, conception. If the main function
of the organ is maintained (after the loss his parts of the right testicle are
functioning), can the reproductive capacity for fertilization and conception
be attributed to the injury of the right testicle as a moderate injury? Having
analyzed evidence collected in their entirely the court imposed a punishment
under article 121 part 1 of the PC of Ukraine for intentional grievous bodily
injury which caused the loss of an organ. The injury to the right testicle with
its loss is a serious injury (ZDC, 2016). Ternopil Regional Court of Appeal
upheld the verdict of the Zbaraž District Court of the Ternopil Region
of 5 May 2017 without changes (2017). Survey data of forensic experts
demonstrates that the loss of one of the paired organs (eyeball, kidney, etc.)
can be considered as one of the signs of severe injury 72 per cent (gure 2).
Figure 2. Can the loss of one of paired organs (eyeball, kidney
etc) be considered as one of the signs of severe injury?
Source: compiled by the authors based on the results of a sociological survey.
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Each organ has certain characteristics, performs certain specic
functions and is a part of human body. For example, an auditory organ has
signs and functions, but in the case of loss of an ear (an ear shell) which is
not an organ but only one part of the hearing organ. That being the case,
it belongs to one of the signs of serious injury. In case of loss of hearing
function (one ear) – it is moderate injury signicant permanent disability
less than by one third, in this case it counts 15%. “Loss of vision in one eye
or loss of eye is also determined to be severe bodily injury, as in this case
there is loss of working capacity by more than one third or irrecoverable
deformation of the face” (Mitrofanov and Linov, 2010: 129). However, it
is dicult to accept some of the scientic claims, since the loss of an eye,
which has led to one-sided blindness, cannot be attributed to such signs of
grievous bodily harm as irrecoverable deformation of the face. According to
part 2.1.8 of the Rules “when operational treatment (cosmetic surgery) is
necessary to eliminate the damage to the face, it is considered irrecoverable”.
In this case, the prosthetics of the eyeball are performed without surgery, so
the loss of the eye as one of the paired organs belongs to one of the signs of
severe bodily injury - the loss of an organ.
On the opinion of Zavalniuk the loss of an organ is considered to be both
the anatomical loss of his body and the loss of its functions (2016). There is
rather similar terminology in forensic medicine
Impairment of functions is a complete or partial disorder of the specic activity
of an organism, its organs, tissues or cells under the inuence of various internal
or external factors. The disruption of the functions of any organ may be temporary
and permanent (for the whole life) of minor, insignicant, moderately or grievous
severity until its total loss. Persistent impairment of functions is generally covered
by a sign of permanent disability to varying degrees (2016: 337).
Therefore, the term “impairment of functions” is broader than “loss of
functions”. Thus, in accordance with the provisions of the Regulations:
1. hearing loss should be understood as total persistent deafness on
both ears and such irreversible state where the victim does not hear
a spoken speech at a distance of three to ve centimeters from the
ear shell. In case of hearing loss in one ear what was the result of the
injury the actions of the perpetrator will be qualied in accordance
with article 1, part 122 “Intentional moderate bodily injury” of the
PC of Ukraine on the basis of a permanent loss of total capacity to
work by less than one third (25%).
2. loss of language (speech)should be interpreted as the loss of
the ability to express one’s thoughts with vocal sounds that are
understandable to others. A stutter is not to be interpreted as a
loss of speech, except for severe stuttering, since it is impossible to
perceive sounds, a certain word or a phrase.
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3. loss of an arm or leg should be understood as the separation from
the torso or loss of function (paralysis or other condition excluding
their activity). Anatomical loss of the arm or leg is understood to
mean both the separation of the arm or leg from the torso and
amputation at or above the ulna or knee joints; all other cases
should be treated as loss of limb and assessed against the basis of
permanent disability.
4. loss of reproductive capacity must be understood as loss of capacity
for coition or loss of capacity to fertilize, conceive and reproduce
(childbirth). Some scholars have proposed new oences against
human health – Illegal implementation of surgical sterilization of
men or prevention of pregnancy in a woman without the consent of
a person (Hrychuk, 2021).
Genital mutilation is also one of signs of bodily injury. This question of
whether this topic should be identied has been discussed in the scientic
community. For example, Baida determined that such actions are the
result of religious or ethno-religious traditions and are performed as part
of the rite of adulthood, preparation for marriage, adulthood, preservation
of the virginity of women. The aim of the aforementioned actions is also
often “deterrence” of sexual needs for ensuring “purity” of future family
relations, ensuring “delity” of wife, preservation of family, increasing
sexual satisfaction of man, membership in secret women’s associations,
etc. (2016). Another group of scientists noted that this practice of “Female
circumcision has no basis in any religion (religious texts do not prescribe
such practice) and is related to deep-rooted cultural beliefs about women
and girls, their hygiene, sexuality and place in society’’ (Shkodiak, 2019).
The world recognizes 6 February as the International Day of Zero Tolerance
for Female Genital Mutilation. “Although the practice of female genital
mutilation is concentrated mainly in 29 countries in Africa and the Middle
East, it is a universal problem that also aects some countries in Asia and
Latin America. Destructive female genital mutilation continues spreading
in some immigrant communities living in Western Europe, North America,
Australia and New Zealand” (Hrychuk, 2021).
All kinds of female genital mutilation are considered to be mutilation
(mutilatio; lat. “circumcision”, “shortening”) by the World Health
Organization (hereinafter referred to as WHO) which is a violation of
human rights (USAID, 2016: 64-75).
WHO identies the following types of female genital mutilation:
1. Clitoridectomy is when the clitoris is partially or completely removed
and, in very rare cases, the skin fold surrounding the clitoris is also
removed.
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2. Excision is commonly referred to as partial or complete removal of
the clitoris and labia.
3. Inbulation usually occurs when the opening of vagina is narrowed
by the creation of a cover seal which is formed by cutting and
repositioning the minor labia or labia (sometimes by stitching). It
can be combined with clitoris removal.
4. The fourth type includes all other harmful female genital procedures
for non-medical purposes, such as injections, puncture, cutting,
scraping, and burning of the genital area (Kushpit, 2020).
All female genital mutilation intentionally alters or injures the female
genital organs for non-medical reasons, such as removal, inbulation, or
any other mutilation, in whole or in part, of the labia majora, labia minora
or clitoris (Borosdina et al., 2018).
In summary, a review of the special literature reveals that female genital
mutilation is prevalent throughout the world.
Even article 38 of the Istanbul Convention makes it clear that liability
arises in the case of female genital mutilation.
“…such injuries are directly related to certain religious movements and ethnic
groups not inherent in Ukrainian society. In addition, the basis for criminalizing the
modication of certain additional grounds to the existing PC is the corresponding
criminological ground. It also should be noted that reference to the fact that the
mutilation was carried out with the consent or at the request of the minor is void
and the consent of the adult can only be regarded as a mitigating circumstance,
since there is an express prohibition on such acts. Secondly, such injuries do not
correspond to that level of privacy in a person`s life, may not be ground for non-
interference of the person in the private life of the victims” (Pazenko, 2019: 59).
In our opinion, the rights of men and women in all legal relations in
society should be equalized, in order to eliminate social barriers and create
equal social opportunities. Therefore, it is not appropriate to apply criminal
law protection exclusively to women or men. In case of damage to an organ
or a part thereof the function of which was lost earlier (before the injury)
the severity of the damage is established on the basis of the actual duration
of the impairment.
Mental illness as a result of injury to health caused by serious bodily
harm is a matter for forensic and psychiatric experts. When studying this
issue, we have noticed that scientists use dierent terminology, videlicet:
“mental disorder”, “mental disease”, “psychiatric disease”, “psychiatric
disorder” in special literature. Law of Ukraine “On Psychiatric Care” in Art.
1 denes psychiatric disorders as disorders of mental activity recognized
as such in accordance with the International Statistical Classication of
Diseases, Injuries and Causes of Death in force in Ukraine (VRU, 2000).
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The Law of Ukraine “On Psychiatric Care” in Article 1 denes psychiatric
disorders as disorders of mental activity established in accordance with
the International Statistical Classication of Diseases, Injuries and Causes
of Death in force in Ukraine (VRU, 2000). Analyzing the aforesaid, we
consider that the terms “mental disorder”, “mental disease”, “psychiatric
disease”, “psychiatric disorder” to be synonymous. The legislation of
Ukraine uses them in dierent ways at the same time. Emotional illness
must be understood as mental disease (mental disability). Reactive states
(psychosis, neurosis) associated with damage (part 2.1.5) (MHU, 1995)
cannot be classied as mental diseases. Therefore, the terms “mental
disorder”, “mental disease” is synonymous. The term “mental disease” is a
relic of the past system, the term “mental disorder” is also widely used. In
our opinion the legislation of Ukraine should have a common terminology
to prevent misunderstanding and interpretation of these terms, namely
“mental disorders”, since in national legislation and ICD-10 is used exactly
the name of brain diseases.
The Rules clearly state the duration and curability of a mental illness
an injury resulting in the development of a mental illness, regardless of its
duration and degree of curability.
The next sign of grievous bodily injury is another health disorder
associated with a permanent disability by at least one third (at least 33%).
“Health disorder”, “disability”, “permanent disability” and “permanent
loss of capacity to work” are considered to have dierent meanings as signs
of bodily injury.
A health disorder is to be understood as a painful process directly
related to damage, consistently developed (Regulations, part 2.1.6) or
painful state of a person or disruption of normal human activity. Persons
who are employed and those who are not employed (children, pensioners,
persons with disabilities, etc.) may develop a health disorder as a result of
any bodily injury. Therefore, persons who do not work are established to
a health disorder in case of injury and another group to a health disorder
related to permanent disability.
Articles 121, 122, 125 of the PC of Ukraine refer to loss of capacity to
work. However, loss of working capacity is possible to be general and
professional. The provisions of the articles of the Penal Code of Ukraine do
not specify the type of working capacity referred to which provokes a lot of
discussions. Thus, “the overall working capacity is a person’s ability to serve
himself or to perform unskilled job in normal living conditions” (Zavalniyk,
2016: 348). “Professional ability to work is the ability of a certain employee
to work in his profession (specialty)” (Mitrofanov and Linov, 2010: 201).
Thus, in case of bodily harm, it is possible only general loss of capacity,
since it is the same for all. The loss of working capacity is dened in civil
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Protection of Human Health: Medical and Legal Aspects
law relations and will be dierent for each person, as these persons have
dierent professions (specialties).
The general disability must be stable (permanent). Rules dene it as
irreversible loss of function, not fully restored. That means that it is the
kind of disability that lasts during the whole life.
We consider it advisable not to refer the denition of “permanent loss of
capacity to work” to signs of grievous bodily injury which is being discussed
in the scientic community. For example, if it is assumed that professional
eciency, like general eciency, is a sign of grievous bodily injury, then
the intentional breaking the ngers of a pianist (violinist, etc.) in order
to further prevent performance of professional functions, these injuries
should be qualied in accordance with article 121 of the PC of Ukraine. In
such a case, the existing legislation does not give forensic experts the power
to determine the loss of professional capacity. Such functions are assigned
to the Medical and Social Expert Commission (MSEC) who are not entitled
to determine the severity of bodily injury.
The term “permanent capacity to work” as an indicator of the severity of
bodily injury, article 121, 122 part 1, article 125 part 1 of the PC of Ukraine
should be replaced by “general permanent capacity to work”. Interviews
with forensic experts (64 %) make it possible to conrm the advisability of
including terminology in the above-mentioned articles of the Penal Code
“general permanent capacity to work”. The Rules stipulate that the amount
of permanent (stable) loss of general working capacity in case of damage
shall be determined after the injury has occurred and shall be dened on
the basis of objective data according to the documents governing the work
of the Medical and Social Expert Commission. Therefore, it is necessary to
distinguish the terms “health disorder related to a permanent disability”
and “health disorder related to a permanent loss of general capacity to
work”. Consequently, it is necessary to make appropriate amendments to
both the Penal Code and the Regulations.
“Loss is an action when someone is left without someone, something,
loses someone as a result’’ (Dictionary, n.d.). Basically, it’s a 100% loss of
ability. Such terminology does not correspond to the grounds stated in the
PC of Ukraine, since the legislator establishes a certain percentage of such
“loss”. Therefore, it is advisable to use the term “reduction”.
When asserting the severity of bodily injury, the expert shall take into account
not the duration of the temporary disability or treatment, but shall objectively
determine the duration of the impairment, objectively determine the general
condition of the victim and take into account the duration of the impairment and
the time which the victim need to recover (Zavalniyk, 2016: 381).
One of the signs of grievous bodily harm is the irrecoverable
deformation of the face. The Rules for the Determination of the Degree
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of Bodily Injury stipulate that the Forensic Expert shall determine
whether the injury is recoverable or irrecoverable. The recovery should
be interpreted as a signicant reduction of the signs of pathological
changes (scarring, deformation, facial dysfunction etc.) over time or not
by surgical interventions. When operational treatment (cosmetic surgery)
is necessary to remove injuries, the damage to the person is considered to
be irreparable (MHU, 1995). Thus, the forensic expert denes the sign of
severe bodily injury as irreparable deformation of the face only concerning
“irreparability” (or as stated in the Rules “irretrievable”). The question of
the denition of term “face disgurement” and the identifying the specialist
who is responsible to establish this remains unclear.
Criminal law theory and scholars suggest that a person is a considered to
be disgured when he or she has an unpleasant, disgusting appearance (for
example, no nose or lips). The severity of the harm caused by disgurement
is not only physical but also psychological since it humiliates the victim
and causes him severe emotional distress and anguish (Kyrenko, 2002: 45).
This position claims our attention. However, the theory does not clearly
dene the criteria for disgurement and who is responsible to establish
those criteria.
Discussions also arise on dening the boundaries of irreparable facial
disgurement. Kyrenko noted that permanent disgurement is possible
not only on the face, but also on other parts of the body. In cases of
disgurement of the back, arms or other parts of the body, a person feels
depressed, worries that he cannot wear open clothes, actively participate in
sports with all others, go to the beach etc. This problem should therefore be
solved and it should be recognized that not only face but also other parts
of the body may be classied as serious injuries. The author proposes to
supplement article 121, part 1 of the PC of Ukraine with such sign of serious
bodily injury as irreparable disgurement of face or body (2002: 45-48).
76.9 % of the forensic experts questioned replied positively to the question:
“Is it necessary to specify in the Regulations the anatomical boundaries of
the person taking into account and ear shells? “. This indicates that national
legislation requires changes and additions and indicates the practical
importance of the study. Therefore, in order to eliminate contradictions in
the Rules, it is necessary to specify the anatomical boundaries of face taking
into account the auricles, because the topographic anatomy of the facial
section of the head which is governed by the forensic experts determines
the boundaries of face without auricles.
In addition, according to the analysis of criminal proceedings, the
expert determines the type of injury, its characteristics and the mechanism
of formation, and whether the injury is recoverable or irrecoverable (part
2.1.8). However, in order to establish “facial deformation” other participants
of the process - a specialist, namely a cosmetologist, are invited. Therefore,
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in our opinion, in order to resolve procedural disputes, the Rules should
provide for the right of a forensic expert to determine denitively the degree
of injury in cases of undoubted post-traumatic facial disgurement. Only
36.9% of forensic experts interviewed determined that such changes were
inappropriate.
I. Mitrofanov and M. Linov note that “life-threatening harm can be both
bodily harm and disease and pathological conditions” (2010: 188). Russian
scientists Veklenko and Galiykova single out such a possible consequence
of a serious bodily injury as a pathological condition. It is dened as a
stable deviation from the norm, having a biologically negative value for the
organism (2004) medical literature. Harm to health includes bodily harm
as the most pronounced traumatic form of health disorder, together with
illness and pathological condition notions used to denote pathological
changes which are not bodily injuries (Popov, 1999: 5).
Conclusion
Clarication of problems of criminal law protection of human health
makes it possible to adopt a comprehensive approach in dening the
main directions of improvement of the normative regulation of criminal
liability for infringements of human health and in accordance with them to
develop a holistic theoretical model of such liability regulation. We consider
it advisable to specify a medical denition of “harm to human health”
violation of the anatomical integrity of tissues, organs or their functions
arising from the action of one or more factors of the external environment
- physical (mechanical, thermal, barometric, radiant, etc.), chemical, etc. In
this denition of term harm to health one must put the union “or” between
“violation of the anatomical integrity ...” “and their functions”. Otherwise,
it can be interpreted in the text of the Rules as a violation of the integrity
and function of the organ. Biological and mental factors should also be
removed. Biological factors include all viral and bacterial infectious diseases
(inuenza, syphilis, typhoid fever, cholera, tuberculosis, viral hepatitis,
tetanus, and many others) that do not need to be considered to be harmful
to health. The mental factor is a quarrel, conict, fear, stress, depression,
which is the domain of psychiatrists, not forensic experts.
Within the specied directions, it is proposed to amend the list of
criminal oences against the health of a person in the Penal Code, namely
the main grounds: Article 121. Intentional iniction of grievous bodily harm.
1.Intentional iniction of grievous bodily harm, that is, life-threatening
at the time of the iniction or resulting in the loss of any organ, including
one of the paired organs, or of its functions, mental disorder, or other health
disorder, with a steady reduction in the overall working capacity by at least
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one third or termination of pregnancy or permanent disgurement of the
person.
Article 122. Intentional iniction of moderate bodily injury
1. Intentional iniction of moderate harm to health which is not life-
threatening and does not have the consequences provided for in article 121
of the existing Penal Code, but has caused a long-term health disorder or
a signicant long-term decrease in general working capacity by less than
one-third.
Article 125. Intentional minor injury to health
1. Intentional iniction of a minor injury to health resulting in a short-
term impairment of health or an insignicant permanent reduction in
general working capacity.
In addition, considering the above said considering the provisions
of the by-laws and regulations which guide the work of general forensic
experts in determining the degree of bodily harm, there is a need to develop
fundamentally new instruments (Rules for the Forensic Determination of
the Severity of Bodily Injury) which will dene the signs of bodily injury and
contain denitions and clarications of the evaluation terminology. In this
way, the results obtained can be useful in law enforcement in determining
the severity of bodily harm and in standard-setting, scientic and scientic-
pedagogical work in the teaching of criminal law and medical subjects.
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Esta revista fue editada en formato digital y publicada
en octubre de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº Especial
