Criminal Liability for the Crime of So-called Forced Disappearance in the Ukrainian Criminal Law (Article 146-1 of the Criminal Code of Ukraine)

Abstract

In the article, the authors analyzed the statutory elements of a relatively new type of crime in Ukrainian criminal law, namely the so-called enforced disappearance (Article 146-1 of the Criminal Code of Ukraine). The need to criminalize such an act resulted from Ukraine’s accession on 17 June 2015 to the Convention for the Protection of All Persons from Enforced Disappearance (adopted in New York on 20 December 2006). Until then, the lack of appropriate regulation of the legal status of missing persons was a gap in Ukrainian legislation, and the need to eliminate it became particularly urgent in connection with the armed conflict in the Autonomous Republic of Crimea and eastern Ukraine. Immediately after the introduction of Article 146-1 to the Criminal Code of Ukraine, its application in practice did not become widespread (69 cases in 2020), and only after the full invasion of Ukraine by the Russian Federation did the number of identified crimes with this qualification increase (1,120 in 2022). The authors also point to other legal qualifications (than that under Article 146-1 of the Criminal Code of Ukraine) that are used in the conditions of hostilities taking place in the territory of Ukraine in cases of enforced disappearances (Article 115 the Criminal Code of Ukraine “Intentional homicide”, Article 146 the Criminal Code of Ukraine “Illegal deprivation of liberty or abduction of a person”, Article 147 the Criminal Code of Ukraine “Hostage-taking”, Article 438 the Criminal Code of Ukraine “Violation of the laws and customs of war”). Due to the fact that Poland has ratified the Convention for the Protection of All Persons from Enforced Disappearance, the problem arises how to appropriately complement the Polish Criminal Code with a new type of crime, for which an analysis of the solutions adopted in Ukraine may be helpful.