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 cientíca 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° 71
2021
Recibido el 09/09/2021 Aceptado el 21/11/2021
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
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
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-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
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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Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
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Joan López Urdaneta y Nil da Ma rín
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 71 (2021), 350-365
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Criminal protection of children’s life
and health: international experience
DOI: https://doi.org/10.46398/cuestpol.3971.18
Viktoria Babanina *
Vita Ivashchenko **
Oleg Grudzur ***
Yurikov Oleksandr ****
Abstract
Through a documentary methodology, the article examines
the characteristics of the criminal protection of the life and health
of children in Ukraine and some other countries. The problem of
determining the time of the beginning of the protection of a child’s
life and health, is analyzed in the light of the European experience.
It is noted that in Ukraine it is necessary to recognize the right
to live of the child at any stage of fetal development, to ensure
the criminal protection of the child before birth. This approach is
enshrined in several international legal acts, as well as conrmed by legal
guarantees in the legal systems of many countries around the world. In
addition, the article analyzes criminal law measures to guarantee the rights
and interests of the child under modern Ukrainian law. The list of socially
dangerous acts against minors is a result, so reinforced criminal liability is
provided for considering the interests of minors. It has been concluded that
in all post-Soviet countries the components of crimes against a person’s
health, considering the legislator’s reaction to causing harm to the health
of children during their commission, are clearly divided into three separate
groups.
Keyword: criminal protection of children; life and health; children and
minors; criminal responsibility; corpus delicti.
* Professor of Criminal Law Department of the National Academy of Internal Aairs, PhD in Law,
Associate Professor, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0003-4173-488X
** Professor of Criminology and Criminal Executive Law Department of the National Academy of Internal
Aairs, PhD in Law, Associate Professor, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0001-
6076-3657
*** Associate Professor of Criminal Law Department of the National Academy of Internal Aairs, PhD in
Law, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-1691-3328
**** Teacher of the cycle of general and criminal law disciplines Kyiv Center for Primary Vocational Training
«Police Academy» Educational and Scientic Institute № 1 of the National Academy of Internal Aairs,
PhD in Law, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-6900-6887
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CUESTIONES POLÍTICAS
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Protección penal de la vida y la salud de los niños:
experiencia internacional
Resumen
Mediante una metodología documental el artículo examina las
características de la protección penal de la vida y la salud de los niños en
Ucrania y algunos otros países. El problema de determinar el momento del
inicio de la protección de la vida y la salud de un niño se analiza teniendo
en cuenta la experiencia europea. Se observa que en Ucrania es necesario
reconocer el derecho a la vida del niño en cualquier etapa del desarrollo fetal,
para garantizar la protección penal del niño antes de su nacimiento. Este
enfoque está consagrado en una serie de actos jurídicos internacionales, así
como conrmado por garantías legales en los sistemas legales de muchos
países del mundo. Además, el artículo analiza las medidas de derecho penal
para garantizar los derechos e intereses del niño bajo la ley ucraniana
moderna. Es resultado la lista de los actos socialmente peligrosos contra los
menores, para que es prevista la responsabilidad penal reforzada teniendo
en cuenta los intereses de los menores. Se ha concluido que en todos los
países postsoviéticos los componentes de los delitos contra la salud de una
persona, teniendo en cuenta la reacción del legislador al hecho de causar
daño a la salud de los niños durante su comisión, están claramente divididos
en tres grupos separados.
Palabras clave: protección penal del niño; vida y salud; infancia y
menores; responsabilidad penal; corpus delicti.
Introduction
There is no doubt about the importance of ensuring the necessary
protection of human rights to life and health. The special importance of
human life and health as the most important intangible values has led to
the consolidation of human rights to life and standard of living necessary
to maintain health and care for illness or disability at the international
level, in particular in the Universal Declaration of Human Rights (Art. 25)
and the International Covenant on Economic, Social and Cultural Rights
(Article 11). These provisions are concretized at the constitutional level of
each country, in particular, Art. 3 of the Constitution of Ukraine proclaims
human life and health as the highest social value. Ensuring the right to life
and health is also detailed at the sectoral level, in particular, at the level of
criminal law, which provides for liability for crimes against life and health.
Human life is not only a subjective right, protected by legal norms,
but also an independent social, spiritual and biological value. Protecting
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Viktoria Babanina, Vita Ivashchenko, Oleg Grudzur y Yurikov Oleksandr
Criminal protection of children’s life and health: international experience
everyone’s life is a top priority for criminal law. Many lawyers have devoted
their work to the issue of criminal law protection of life, but their work
does not cover all the problems of criminal law regarding comprehensive
protection of life.
Crimes that aect the life and health of a person are the most socially
dangerous acts. Today, special attention needs to be paid to the protection
of the lives and health of children, who, due to their age, are the most
vulnerable category of the population.
Problems of securing children, protecting their rights and legitimate
interests, in particular, from socially dangerous encroachments, must be
constantly in the focus of attention of a democratic state. Crimes committed
against a child, or related to his coercion, involvement in their commission,
are characterized by increased social danger. They can not only cause
physical, moral or property damage to the child, but also negatively aect
its further development, causing unpredictable consequences. Criminal
protection of children’s rights is an important part of their protection
system. In the process of further European integration and development
of the rule of law in Ukraine, it is important to clarify the vectors of the
domestic legislator in the eld of criminal law protection of children’s rights
and compare Ukrainian legal provisions on children’s rights protection
with legislation of other countries.
1. The problem of determining when to start protecting the life
and health of a child
There are many dierent points of view on the question of the beginning
of life in the legal and medical literature. Researchers determine the
beginning of human life from a certain stage of physiological childbirth. At
the same time, one group of scientists believes that human life begins from
the moment when the child is capable of independent existence, completely
separated from the mother’s body and took the rst breath (Naumov, 2005;
Lysenko, 2002). However, back in 1923, S. Pozdnyshev wrote that the most
convincing proof of the life of the newborn is breathing. However, there
may be cases when the child has not yet breathed, but already lived through
the bloodstream (Pozdnyshev, 1923).
Some authors suggest that the initial limit of human life should be
associated with the appearance of the formed mass of brain cells, which
makes the fetus viable (Sharapov, 2005). Proponents of this position have
conclude that, from a legal point of view, the beginning of human life is
the birth (formation) of the brain, namely: the achievement of the fetus 22
weeks of fetal development (Trubnikov, 2009).
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At the same time, it should be noted that in the modern criminal
law literature attempts are made to determine the beginning of life in a
dierent way. Thus, according to Professor V. Glushkov, the life of a human
fetus after twenty-eight weeks is an additional object of illegal abortion,
so his death because of an illegal operation should be classied as murder
(Glushkov, 1987).
Regarding the beginning of life, the position of M. Korzhansky, who
notes that the beginning of physiological childbirth is when the development
of the fetus is over and it is ripe for independent life outside the mother’s
body, at that moment a new life appears, which must already be protected
by criminal law (Korzhansky, 2001).
At the same time, there is a point of view according to which the
moment of the beginning of life is the moment of fertilization (Popov, 2001;
Poroshuk, 1998). In jurisprudence, there are strong trends to support this
point of view. Thus, some scientists point out that the period of intrauterine
human development is an early period of its biological life. Being in the
womb in the state of the embryo, it is physically independent, because it
is not part of the body of its carrier and is capable of self-development:
because the life processes occurring in it, act as an internal impulse of its
development.
The mother’s body is only an ideal environment for development. With
birth begins the second stage of biological existence of man, or rather, the
stage of his body in the social environment. This indicates the fallacy of the
existing idea that human life begins at birth (Jurek, 2020).
This should be corrected: a person’s social life begins from the moment
of his birth (Selikhova, 2002).
Some authors believe that the legal relationship to the status of embryos
should be based on the recognition of the fact that the embryo is not part
of the mother’s body, but the beginning of a new life (Besedkina, 2005). It
should be emphasized that this position has its own normative consolidation.
In the civil legislation of Ukraine in Art. 1222 of the Civil Code of Ukraine,
the right to inherit arises from a person who was conceived during the life
of the testator and born alive after the opening of the inheritance.
Supporting this approach, Professor A. Kovler emphasizes that “modern
law strongly denes another boundary: human life begins with the
fertilization of the egg” (Kovler, 2002: 128).
Unfortunately, at the legislative level, the moment of the beginning
of life is not clearly established. Only in the Instruction on denition of
criteria of the perinatal period, live birth and stillbirth, approved by the
order of the Ministry of Health No. 179 from March 29, 2006 (Ministry
of Health of Ukraine, 2006), it is specied that live birth is expulsion or
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Viktoria Babanina, Vita Ivashchenko, Oleg Grudzur y Yurikov Oleksandr
Criminal protection of children’s life and health: international experience
removal from mother’s body a fetus which after expulsion / withdrawal
(regardless of the duration of pregnancy, whether the umbilical cord is cut
and whether the placenta has detached) breathes or has any other signs of
life, such as palpitations, pulsation of the umbilical cord, certain movements
of skeletal muscles, although from this denition it is not clear what should
be considered the beginning of human life. The Instruction focuses on the
criteria that indicate whether a person was born alive.
The solution to the problem of criminal-legal consolidation of the
moment of the beginning of protection of life should be sought considering
foreign, rst of all, European legislative experience.
According to the legislation of most European countries, human life
begins at conception, and the child at the prenatal stage of development
before birth is the very fact of its existence, including the fact of being in
physical (biological) relationship with his mother, has a certain legal status
that entitles him to protection.
Traditionally, the prenatal period is divided into three stages: the zygote
stage (about two weeks), the embryo stage (from the 2nd to the 8th week)
and the fetal stage (from the 9th week before birth).
The terms “zygote”, “embryo” and “fetus” are used exclusively to indicate
the stages of ontogenetic development of the human individual but cannot
be grounds for recognizing the lack of value of the child’s life at the prenatal
stage of development.
According to the Judgment of the Grand Chamber of the European
Court of Justice (Court of Justice of the European Union) in Case No.
C-34/10 of 18 October 2011 (Court of Justice of the European Union,
2011) concerning the interpretation of Article 6 (2) (c) of Directive 98 /
44 / EU of the European Parliament and of the Council of 6 July 1998:
“On the legal protection of biotechnological inventions”, a human ovum
from the moment of fertilization must be considered as a “human embryo”
(European Parliament and the Council, 1998: 55).
The presence of a person at the initial (prenatal) stage of his life and
development does not give legal grounds to treat him (and accordingly - his
life) as an object that is not a human individual and has no right to life.
The right of such a child to life by its legal nature follows from the natural
human right to life and must be recognized by the state as the highest
value. Thus, the state is obliged to recognize the need for legal protection
of life and health of a child in the prenatal stage of development and to
establish legal guarantees for the right of such a child to life, his right to
normal development and criminal protection of his health from conception
(Urbaniak and Spaczynski, 2015).
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The legislation of most European Union countries enshrines rules that
guarantee the right to life, health, and other rights of a child in prenatal
development. A child in the prenatal stage of life should be legally
recognized a number of fundamental rights, including the right to life,
safety and protection, to receive proper care and nutrition, to receive special
criminal protection from all forms of negligence, violence, intentional and
unintentional abuse and other actions that may harm its development.
It is obvious that at present the levels and specic measures of legal
protection of a person born and legal protection of a person in the prenatal
period of development in dierent states dier signicantly, but it does not
follow that the obligation of the state to respect and protect human rights in
the prenatal period is less important (or that there is no such obligation of
the state at all) and that a person in the prenatal period is deprived of any
legal protection.
Thus, the legal recognition of a child at any stage of fetal development as
a subject of the right to life, the legal recognition of the rights of such a child
to life, health care and development, as well as criminal protection before
birth is expressed in a number of provisions of international legal acts, and
also is conrmed by the legally established guarantees in legal systems of
many states.
2. Criminal-legal measures to ensure the rights and interests of
the child under modern Ukrainian legislation.
According to the modern Criminal Code of Ukraine, issues of criminal
liability and punishment of minors are resolved in a separate Section of
the General Part “Features of criminal liability and punishment of minors”.
The existence of a special system of punishment for juveniles is justied
by their biological, psychological, and social characteristics, so public
authorities must take into account all the peculiarities of the age of minors
and their psychological and social characteristics to administer humane
and democratic justice to persons of this social group.
Separation of features of criminal responsibility of minors in the
independent section means that concerning these persons norms on
criminal responsibility are applied considering the special provisions
provided in this section. Minors between the ages of fourteen and eighteen,
on the one hand, reach a fairly high level of socialization, namely: they have
independence, perseverance, ability to control their behavior, etc., and on
the other, there is further socialization of the individual: training continues
or ends in school or college, experience of interpersonal relations, etc. is
accumulated. This age is characterized by excessive categorical judgments,
irritability, imbalance, inability to assess the situation taking into account
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Viktoria Babanina, Vita Ivashchenko, Oleg Grudzur y Yurikov Oleksandr
Criminal protection of children’s life and health: international experience
all the circumstances. These age features have led to the establishment of
a number of exceptions and additions to the liability of minors compared
to the general rules of criminal liability (Astemirov, 1970). Assessing the
content of the section of the Criminal Code of Ukraine on criminal liability
and punishment of minors, it should be borne in mind that this section is
an integral part of the General Part of the Criminal Code, it is inextricably
linked with other provisions.
This connection is manifested primarily in the fact that all the initial
provisions on the tasks and principles of criminal law on the grounds of
criminal liability, the eect of criminal law in time, space and circle of
persons, the concepts and types of crimes, guilt and its types, complicity,
about the circumstances that exclude the criminality of the act and some
others also apply to minors who have committed crimes. The General Part
of the Criminal Code contains norms on the peculiarities of children’s
responsibility for committing criminal oenses and does not preclude the
extension to the latter of other privileged norms of the General Part of the
Code.
The authorities of all countries of the world make a lot of eorts to
establish their country in the international arena as an independent,
sovereign, democratic and legal state.
An important characteristic that determines the authority of any state in
the international arena to some extent is the policy to protect the rights and
freedoms of its citizens, especially the youngest. At the same time, modern
social conditions in which adolescents are born, grow and are brought up
are far from the desired well-being. Socio-economic crisis phenomena in
Ukraine, such as unemployment, indierence to the upbringing of young
people, impoverishment of the population, directly aect the formation of
the younger generation in the country.
It is important that it is the modern social conditions in which minors
grow up and are brought up in some cases that alienate minors from ocial
institutions of socialization, such as the family and the school. According
to the State Statistics Service of Ukraine, the country has a low birth rate,
which does not provide even a simple reproduction of generations. However,
despite the low birth rate, alcohol consumption is becoming increasingly
important among young people, the phenomenon of the rst drug attempts
among adolescents aged eleven to twelve has become widespread, and drug
addiction and sexually transmitted diseases are spreading. Social neglect of
minors in the conditions of pluralism of views, the absence of clear moral
guidelines contributes to the emergence and spread of negative phenomena
among minors, which generates crime (Kretsul, 2016).
The world community has repeatedly called for issues related to the
protection of the rights and legitimate interests of children. In Art. 3 of
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the Convention on the Rights of the Child emphasizes that in all actions
concerning children, regardless of which public or private enterprise they
use, priority must be given to the best interests of the child (United Nations,
1989).
Similar protection of the rights of the child is enshrined in the Minimum
Standard Rules for Juvenile Justice - the Beijing Rules (United Nations
General Assembly, 1985) and in the Universal Declaration of Human
Rights (United Nations, 1948). On September 30, 1990, the United Nations
General Assembly adopted the Universal Declaration on the Survival,
Protection and Development of Children, which called for all children to be
able to identify themselves as individuals and to realize their potential in
a safe and favorable environment, among seven or caregivers who ensure
their well-being (United Nations General Assembly, 1990). Based on this
requirement of the Universal Declaration of Human Rights and recognizing
that a minor at any age is a person who has all the rights of a member of
society, he must also be recognized as having the right to the protection of
the law.
Criminal law in Ukraine, protecting the interests of minors, their
physical and mental development, provides for increased responsibility for
the following socially dangerous acts against them:
• Premeditated murder of the mother of her newborn child (Article 117
of the Criminal Code); infection of a minor with immunodeciency
virus (Part 3 of Article 130 of the Criminal Code).
• Infection of a minor with a sexually transmitted disease (Part 2 of
Article 133 of the Criminal Code).
• Leaving the mother in danger of a newborn child (Part 2 of Article
135 of the Criminal Code).
• Improper performance of responsibilities for the protection of life
and health of children (Article 137 of the Criminal Code).
• Illegal experiments on humans (Part 2 of Article 142 of the Criminal
Code).
• Unlawful deprivation of liberty or kidnapping (Part 2 of Article 146
of the Criminal Code).
• Hostage-taking (Part 2 of Article 147 of the Criminal Code).
• Human tracking (Part 2 of Article 149 of the Criminal Code).
• Exploitation of children (Article 150 of the Criminal Code).
• The use of a minor child for begging (Article 150-1 of the Criminal
Code).
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Viktoria Babanina, Vita Ivashchenko, Oleg Grudzur y Yurikov Oleksandr
Criminal protection of children’s life and health: international experience
• Rape (parts 2, 3, 4 of Article 152 of the Criminal Code).
• Forcible gratication of sexual passion in an unnatural way (parts 2,
3 of Article 153 of the Criminal Code).
• Sexual intercourse with a person who has not reached sexual
maturity (Article 155 of the Criminal Code).
• Depravity of minors (Article 156 of the Criminal Code).
Also, there should be mentioned:
• Import, production, sale, and distribution of pornographic items
(Part 2 of Article 301 of the Criminal Code).
• Creation or maintenance of cities of debauchery and pimping (Part
3 of Article 302 of the Criminal Code).
• Pimping or involving a person in prostitution (parts 3, 4 of Article
303 of the Criminal Code).
• Involvement of a minor in criminal activity (Article 304 of the
Criminal Code).
• Illegal production, manufacture, purchase, storage, transportation
of narcotic drugs, psychotropic substances, or their analogues (parts
2, 3 of Article 307 of the Criminal Code).
• Illegal introduction into the body of narcotic drugs, psychotropic
substances, or their analogues (Part 3 of Article 314 of the Criminal
Code).
• Predisposition to the use of narcotic drugs, psychotropic substances
or their analogues (Part 2 of Article 315 of the Criminal Code).
• Organization or maintenance of places for illegal use, production
or manufacture of narcotic drugs, psychotropic substances, or their
analogues (Part 2 of Article 317 of the Criminal Code).
In practice, the right of children and adolescents to protection of their
physical and spiritual development exists formally and this right arises
there and when it comes to bringing them to justice (Shedlosky, 2008). As
can be seen from the above list of norms of the Criminal Code, today the
right to life and health of a child is guaranteed by criminal law on a common
basis with adults. The Criminal Code contains virtually no rules specically
regulating liability for encroachment on the lives and health of adolescents.
Their age is taken into account only as an aggravating circumstance in
determining the culprit. It is obvious that murder, intentional iniction
of grievous bodily harm on a minor is an increased social danger. As an
example: in paragraph 2 of Part 2 of Art. 115 of the Criminal Code of Ukraine
provides for increased liability for premeditated murder of a person under
the age of 14, i.e., a minor child.
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In particular, D. Kalmykov, conducting research on criminal liability for
the exploitation of children, determines that the Ukrainian legislator has
supported the global trend regarding the rights of the child, enshrining in
Part 2 of Art. 52 of the Constitution of Ukraine that any violence against a
child and its exploitation are prosecuted by law, and the provisions of parts
3, 5 of Art. 43 of the Constitution of Ukraine categorically forbade the use
of forced labor of children and labor of children in work dangerous to their
health (Kalmykov, 2011).
At the same time, despite the dierent legal decisions on the protection
of children’s rights, the consideration of violations of children’s rights
provides for the need to take more decisive measures. Thus, D. Kalmykov
proposes to explain Article 150 of the Criminal Code of Ukraine “Exploitation
of Children” as the use of forced labor of a child who has not reached the
age of sixteen with qualifying characteristics for a minor, or for two or more
children, etc. (Kalmykov, 2011).
І. Dolyanovska, considering criminal liability for exploitation of
children, proves the need for provision in Art. 150 of the Criminal Code
of Ukraine is not responsible for the exploitation of children, but for the
economic exploitation of children, which is consistent with the provisions
of the UN Convention on the Rights of the Child (Dolyanovska, 2008). І.
Dolyanovska believes that the forms of sexual exploitation of a child are all
cases of satisfaction of sexual needs of persons, in which the culprits receive
prot from such activities of the victim. The author argues that criminal
liability for sexual exploitation of children should be provided in Art. 149
of the Criminal Code of Ukraine. In this context, the concept of “sexual
exploitation” was developed, which proposed to supplement paragraph 1 of
the Note to Art. 149 of the Criminal Code of Ukraine: the use of children’s
activities to meet the sexual needs of third parties in order to make a prot
by the perpetrators (Dolyanovska, 2008).
The current situation in Ukraine regarding the application of criminal
law to children (minors) is in a dicult position. Despite the fact that the
current Criminal Code of Ukraine still contains norms of a privileged, more
human nature for children, there are still a large number of gaps. The most
important thing is that there are norms in the current international law
that could ll the gaps in the legislation of Ukraine, although the positive
trend should include the fact that the basic international legal acts have
been ratied by Ukraine today.
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Criminal protection of children’s life and health: international experience
3. Comparative analysis of criminal protection of life and health
of a child under the laws of Ukraine and other countries
First, it should be mentioned that the corpus delicti of crimes against a
person’s health, taking into account the reaction of the legislator to the fact
of causing harm to children’s health during their commission, is very clearly
divided into three separate groups. The rst such group consists of infection
with human immunodeciency virus or other incurable infectious disease
and sexually transmitted diseases, the composition of which provides for
their commission against minors as particularly qualifying features under
the legislation of Ukraine (Part 3 of Article 130 and Part 2 of Article 133 of
the Criminal Code), the Republic of Belarus (Part 3 of Article 157 and Part
3 of Article 158 of the Criminal Code), Georgia (Article 131 and Article 132
of the Criminal Code), the Republic of Moldova (Part 3 of Article 212 and
Part 2 of Article 212 of the Criminal Code), the Russian Federation (Part 3
of Article 122 and Part 2 of Article 121 of the Criminal Code).
The second group, the so-called opposite to the rst, are acts during which
the iniction of bodily harm to children does not aect their qualications
under the criminal law of Ukraine or the criminal law of these post-Soviet
states (intentional grievous bodily harm caused in the state intentional
iniction of grievous bodily harm in the event of exceeding the limits of self-
defense or in excess of the measures necessary to apprehend the oender;
negligent grievous or moderate bodily harm).
Finally, the third group of crimes against the health of a person, which
under the law of other post-Soviet (except Ukraine) states provide for
/ recognize their commission of children as a sign of a crime that aects
its qualication, includes intentional grievous bodily harm; intentional
moderate bodily injury; intentional minor bodily injury; beatings; torture.
Along with the above-mentioned general positive provision of criminal
legislation of some post-Soviet of child health care by normative xing of
crimes referred to the third group, we will pay attention to the existence of
so-called normative-legal dierences.
For example, the criminal codes of the Republic of Bulgaria and the
Republic of Lithuania contain as qualied corpus delicti crimes against
children in articles that provide for liability for: intentional grievous bodily
harm (Article 131, Article 135); intentional moderate bodily injury (Article
131, Article 138); intentional minor bodily injury (Article 131, Article
140); beatings and muggings (Article 187, Article 140). According to the
legislation of the Republic of Moldova, the following are recognized as
qualied crimes: intentional grievous bodily harm (Article 151); intentional
moderate bodily injuries (Article 152), their killing as well as the use of
juvenile torture (Article 166-1).
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CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 350-365
Intentional iniction of the same severe or moderate bodily injuries
on minors, as well as the use of torture against them are attributed to the
relevant components of crimes, which aects their qualication and the
legislation of the Republic of Kazakhstan (Article 106, Article 107, Article
110). In the criminal codes of Georgia and the Russian Federation such
qualifying features of corpus delicti as their commission against children
are provided in the articles establishing bodily injury (Article 117, Article
111), intentional moderate bodily injury (Article 118, Article 112); torture
(Article 126, Article 117). Only the torture of children is recognized as a sign
of a crime that aects its qualication in the legislation of the Republic of
Azerbaijan (Article 133) and the Republic of Belarus (Article 154).
In general, according to the criminal legislation of foreign countries,
encroachment on the health of children as a qualifying feature of the crime
is often recognized in the case of torture (Article 133 of the Criminal Code
of Azerbaijan, Article 154 of the Criminal Code of Belarus, Article 126 of the
Criminal Code of Georgia, Article 140 of the Criminal Code of the Republic
of Lithuania, Article 166-1 of the Criminal Code of the Republic of Moldova,
Article 117 of the Criminal Code of the Russian Federation), but not so often
in case of intentional iniction of grievous and moderate bodily injury
(Article 117, Article 118 of the Criminal Code of Georgia, Article 106, Article
107 of the Criminal Code of the Republic of Kazakhstan, Article 135, Article
138 of the Criminal Code of the Republic of Lithuania, Article 152 of the
Criminal Code of the Republic of Moldova, Article 111, Article 112 of the
Criminal Code of the Russian Federation) and others.
The criminal legislation of the post-Soviet countries is characterized by
certain dierences in determining the age of children victims of the crimes
under investigation.
In most of the criminal codes, juveniles (codes of the Republic of
Azerbaijan, the Republic of Belarus, Georgia etc.) are recognized as such
victims. According to the criminal legislation of the Russian Federation,
the victims of intentional severe and moderate bodily injuries are minors
(Article 111, Article 112), and of beatings and torture - minors (Article 117).
It is also worth noting the establishment in the legislation of individual
states of criminal liability of parents for specic encroachments on the
health of their children. Thus, according to the Criminal Code of the
Republic of Lithuania, parents may be liable for causing serious harm to
the health of their child (Article 135), as well as damage to the health of
minor gravity (Article 135).
362
Viktoria Babanina, Vita Ivashchenko, Oleg Grudzur y Yurikov Oleksandr
Criminal protection of children’s life and health: international experience
Conclusions
The current situation in Ukraine regarding the application of criminal
law to children (minors) is in a dicult position. Even though the current
Criminal Code of Ukraine still contains norms of a privileged nature for
children, there are still a large number of gaps. The most important thing is
that there are norms in the current international law that could ll the gaps
in the legislation of Ukraine, although the positive trend should include the
fact that the basic international regulations have been ratied by Ukraine
today.
First of all, the legal recognition of a child at any stage of fetal development
as a subject of the right to life, the legal recognition of the rights of such a
child to life, health care and development, as well as criminal protection
before birth is expressed in a number of provisions of international legal
acts, and also is conrmed by the legally established guarantees in legal
systems of many states.
The need to further improve the criminal law protection of children’s
health in Ukraine is obvious, especially against the background of resolving
this issue in criminal law at least in the post-Soviet states. At the same
time, we also believe that, given the legal status of children in Ukraine after
reaching the age of sixteen, unlawful iniction of bodily harm on a person
under the age of sixteen should be considered a sign of a crime against the
health of a person who aects his qualications.
Accordingly, in Art. 67 of the Criminal Code of Ukraine should provide
that the aggravating circumstance is the commission of a crime against a
person under the age of sixteen.
At the same time, encroachment on the rights, freedoms and interests
of a person under the age of sixteen, committed by a close relative or family
member, a person charged with the care of the victim or caring for him,
should be recognized as an aggravating circumstance, and harm to the
health of a person under the age of sixteen by a subject from among the
above as a sign of a crime against health, which aects his qualications.
The general directions of further improvement of the Ukrainian criminal
legislation in the eld of protection of children are: allocation of the separate
section in the Special part of the Criminal Code devoted to crimes in the
sphere of a family, guardianship, care and normal development of children;
revision of the norms of the Criminal Code for the uniformity of use and the
same ratio of the terms “child” and “minor”; improvement and unication
of the lists of special subjects of crimes from among parents and persons
who replace them (in Articles 150-1, 155, 156, 166, 304, 323) taking into
account the provisions of family and civil law; further strengthening the
responsibility for certain crimes that may be committed against children.
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Esta revista fue editada en formato digital y publicada
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Vol.39 Nº 71