DOI 10.37749/2308-9636-2020-10(214)-3
Salahor I. M. Biological pathogenic agents as a subject of the crime provided by article 326 of the Criminal code of Ukraine.
The article examines the subject of the crime provided by Article 326 of the Criminal Code of Ukraine, based on the dominant position in the modern theory of criminal law with the help of physical, social and legal characteristics.
It is pointed out that the subject of violation of the rules of microbiological or other biological agents or toxins usage is the mandatory feature of the crime. By the nature of the connection with the object, the subject of the investigated crime belongs to those for which the observance of a special legal regime is a condition for the normal functioning of public relations.
Blanket disposition of the investigated criminal law norm led to recourse to other legal acts in order to establish the content of the subject of this crime. The generalization of the available normative definitions allowed to formulate the concept of “biological pathogens” in the meaning of the subject of crime under Article 326 of the Criminal Code of Ukraine. In particular, the author includes bacteria, viruses, rickettsia, chlamydia, mycoplasmas, protozoa, fungi, helminths, prions, toxins (both natural and genetically modified).
The properties of biological pathogens are revealed (infectivity, pathogenicity, virulence, mortality, incubation period of contagiousness, stability) which affect their potential usage as a means of destruction. It is alleged that the subject of this crime is not products derived from biological pathogens – any goods or products containing biological pathogens or produced with their use. It is concluded that there is no single current list of biological pathogens for humans, animals and plants in Ukraine, but there are currently five lists approved by legal-and-regulatory acts.
Key words: subject of crime, biological pathogens, toxins, prions, genetically modified pathogens, strains of microorganisms, infectivity, virulence, contagiousness, incubation period, pathogenicity groups.
References
- Gutorova N. O. Criminal law protection of public finance of Ukraine: monograph. Kharkiv: Nat. un-tu vnutr. Affairs, 2001. 384 p.
- Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction of April 10, 1972. URL: http://zakon.rada.gov.ua/cgi-bin/laws/main.
- On high-risk objects: Law of Ukraine of January 18, 2011 № 2245-III. Information of the Verkhovna Rada of Ukraine. 2001. № 15. Art. 73.
- DSTU 3803-98: Biotechnology. Terms and definitions. View. official. Kyiv: State Standard of Ukraine. 1999. 26 p.
- Procedure for state control over international transfers of dual-use goods: approved by the resolution of the Cabinet of Ministers of Ukraine of 28.01.2004 № 86. Official Gazette of Ukraine. 2004. № 4. T. 1. St. 167.
- State sanitary norms and rules «Organization of laboratories in the study of material containing biological pathogens of I-IV groups of pathogenicity by molecular genetic methods»: approved by the order of the Ministry of Health of Ukraine from 24.01.2008 № 26. Official Gazette of Ukraine. 2008. № 11. Art. 274.
- On the state system of biosafety in the creation, testing, transportation and use of genetically modified organisms: Law of Ukraine of May 31, 2007 № 1103-V. Information of the Verkhovna Rada of Ukraine. 2007. № 35. Art. 484.
- Andreychin M. A., Kopcha V. S. Bioterrorism: Medical counteraction. Ternopil: Ukrmedknyha, 2005. 300 p.
- Biological safety of Ukraine: monograph / for general. ed. M. V. Velichko, V. G. Radchenko. Kyiv: Nat. acad. SBU, 2016. 784 p.
- Kazakov V. N., Shlopov V. G. Prion diseases. Donetsk: Donbass, 2009. 444 p.
- Steblyuk M. I. Civil defense and civil defense: a textbook. 3rd edition, p. Kyiv: Znannia, 2013. 487 p.
- Kalashnikov V. M., Yurchenko A. B., Saakyants I. A. Bioterrorism: analysis, trends, threats. Problems of bioterrorism prevention: Collection. M.: ATC SNG, 2010. Р. 10—49.
- Scientific and practical commentary on the Criminal Code of Ukraine / ed. E. Melnyk, M. I. Khavroniuk. 11th ed., Reworked. and add. Kyiv: VD «Dakor», 2019. 1384 p.
- Regulations on the procedure for registration, storage, handling, release and transfer of cultures of bacteria, viruses, rickettsiae, fungi, protozoa, mycoplasmas, bacterial toxins, poisons of biological origin: approved by the Deputy Minister of Health, Chief State Sanitary Doctor of the USSR 18.05.1979.
- DSP 9.9.5.035-99 «Safety of work with microorganisms of I-II groups of pathogenicity»: approved by the resolution of the Chief State Sanitary Doctor of Ukraine from 01.07.1999 № 35.
- DSP 9.9.5-064-2000 «Procedure for issuing permits to work with microorganisms of I-IV groups of pathogenicity and recombinant DNA molecules»: approved by the resolution of the Chief State Sanitary Doctor of Ukraine from 20.12.2000 № 64.
- On veterinary medicine: Law of Ukraine of June 25, 1992 № 2498-XII. Information of the Verkhovna Rada of Ukraine. 1992. № 36. Art. 531.
- Fesenko E. V. Crimes against public health and the system of measures for its protection: dis. … Doctor of Laws. Science: special. 12.00.08. Kyiv: Academy of Advocacy of Ukraine, 2004. 426 p.
- On Medicinal Products: Law of Ukraine of April 4, 1996 № 123/96-VR. Information of the Verkhovna Rada of Ukraine. 1996. № 22. Art. 86.