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.40 N° 73
Julio
Diciembre
2022
Recibido el 15/03/2022 Aceptado el 12/05/2022
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.
Di rec to ra
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OIRALITH
M. C
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P
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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
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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. 40, Nº 73 (2022), 52-70
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Criminal Law Transformation in the
Context of COVID-19: The Experience of
the European Union and Ukraine
DOI: https://doi.org/10.46398/cuestpol.4073.02
Svitlana Tsyganii *
Dmytro Shyian **
Mariia Diakur ***
Vitalii Areshonkov ****
Volodymyr Hospodarenko *****
Abstract
The aim of the study was to identify and analysed the novelties
of the criminal law of Ukraine and the EU Member States caused
by the COVID-19 pandemic, as regulations and social impact tools.
The content analysis, doctrinal approach, comparative method, as
well as general methods were applied to analysed research papers,
regulations, case law and statistics on COVID-19-related crimes. Criminal
law is considered as part of anti-pandemic policy. National governments
focus on responding to individual COVID-19-related crimes rather than
on crime trends in general. Due to the transient situation, European and
Ukrainian practice has shown the priority of adapting existing criminal law
to prevent COVID-19. In general, the transformation of criminal law involves
establishing rules that can be applied in any pandemic. An important
area is the response to long-term criminal challenges (domestic violence,
organized crime) through criminal law. The experience of European
countries and Ukraine in responding to global threats reveals uncertainty
in the criminal law transformation approaches. This determines the
reasonability of working out a common European framework of criminal
* PhD of Pedagogical Sciences, Associate Professor, Department of Law, Private Higher Educational
Establishment University of Emerging Technologies, 03067, Kyiv, Ukraine. ORCID ID: https://orcid.
org/0000-0003-0032-1640
** PhD of Juridical Sciences, Associate Professor, Criminal, Civil and International Law Department,
Zaporizhzhia Polytechnic National University, 69063, Zaporizhzhia, Ukraine. ORCID ID: https://
orcid.org/0000-0002-2057-6942
*** PhD in Law, Associate Professor, Department of Criminal Law, Faculty of Law, Yuriy Fedkovych
Chernivtsi National University, 58002, Chernivtsi, Ukraine ORCID ID: https://orcid.org/0000-0003-
3265-6584
**** Doctor of Law, Leading Researcher, Research Laboratory on the Problems of Combating Crime of the
Educational and Research Institute № 1, National Academy of Internal Aairs, 03035, Kyiv, Ukraine.
ORCID ID: https://orcid.org/0000-0003-1776-1220
***** PhD in Law, Lecturer, Academic Department of Criminal Law Disciplines, Faculty of Law Training,
Law Enforcement, Management and Economics, Kryvyi Rih is Donetsk Law Institute at Donetsk State
University, 50065, Kryvyi Rih, Ukraine. ORCID ID: https://orcid.org/0000-0001-9842-0633
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law policy and prospects for the development of criminal law, which can be
dened in international recommendatory instruments.
Keywords: criminal law policy; criminal legislation; human rights;
prevention of COVID-19; political transformation.
Transformación del Derecho Penal en el Contexto del
Covid-19: La Experiencia de la Unión Europea y Ucrania
Resumen
El objetivo del estudio fue identicar las novedades del derecho penal de
Ucrania y los Estados miembros de la UE provocadas por la pandemia de
COVID-19, como normativa y herramientas de impacto social. Se aplicó el
análisis de contenido, enfoque doctrinario, método comparativo, así como
métodos generales para analizar trabajos de investigación, normativa,
jurisprudencia y estadísticas sobre delitos relacionados con el COVID-19.
El derecho penal se considera parte de la política anti-pandémica. Los
gobiernos nacionales se enfocan en responder a los delitos individuales
relacionados con el COVID-19 en lugar de las tendencias delictivas en
general. Debido a la situación transitoria, la práctica europea y ucraniana
ha mostrado la prioridad de adaptar el derecho penal existente para
prevenir el COVID-19. Se concluye que en general, la transformación del
derecho penal pasa por establecer reglas que puedan aplicarse en cualquier
pandemia. Un área importante es la respuesta a desafíos criminales de
largo plazo (violencia doméstica, crimen organizado) a través del derecho
penal. La experiencia de los países europeos y Ucrania en la respuesta a las
amenazas globales revela incertidumbre en los enfoques de transformación
del derecho penal.
Palabras clave: política de derecho penal; legislación penal; derechos
humanos; prevención de COVID-19; transformación
política.
Introduction
The modern world is facing global crime and other destructive social
challenges that threaten the security of all countries. The reasonability of
cooperation of criminal law systems of dierent states and their groups
became an agenda item. Such interpenetration and mutual enrichment is a
complex process, as the levels of political, economic and legal development
54
Svitlana Tsyganii, Dmytro Shyian, Mariia Diakur, Vitalii Areshonkov y Volodymyr
Hospodarenko
Criminal Law Transformation in the Context of COVID-19: The Experience of the European
Union and Ukraine
are dierent (Popko, 2021). However, it contributes to the improvement of
criminal law and its practical application for the comprehensive protection
of human rights, as well as law and order.
The COVID-19 pandemic has unprecedentedly aected all social
processes in the world, making controversies more acute and provoking
conicts. Governments have faced a dynamic criminal situation, created
not only by the pandemic itself but also by quarantine restrictions imposed.
A signicant number of states have reported a reduced crime rate promoted
by the isolation, while the level of domestic violence has increased
dramatically (Peršak, 2020). Isolation and the active use of the Internet
have led to increased sexual violence rates, such as online harassment
and digital extortion. Crimes against children became especially frequent
(Europol, 2020d).
Public attention was also drawn to crimes in the eld of production and
distribution of counterfeit COVID-19-related pharmaceuticals, and forgery
(European Parliament, 2020, Europol, 2020b). The problem of corruption
in the eld of public procurement of protective and medical equipment,
lling of state funds has become more acute. The number of public fund
frauds (Meško, 2021), with the supply of medical items and equipment for
their production has increased (Europol, 2020a). In October 2020, it was
stated at the meeting of the parties to the Palermo Convention that the most
serious criminal threat at this stage is the COVID-19 vaccine falsication
and their placement on the market (Csonka and Salazar, 2021)
In this context, a number of changes have been made to criminal law in
the EU and Ukraine. But this has raised a number of tactical issues, which in
turn have made the systemic problems of the limits of criminal inuence in
democratic societies more acute. States have faced with the need to choose
the scope of restrictions on human rights and freedoms for the public good.
Public health is of paramount importance. Most countries have applied
securitized measures to protect it, including signicant restriction of
fundamental democratic freedoms and expansion of police powers (Stott,
West and Harrison, 2020). Although this is in line with the public demands
set out in the EU Constitution, each measure must be carefully assessed
in terms of proportionality. This assessment is carried out in each state
(Dorneanu, Malka and Coeckelberghs, 2021)
Although restraints usually have little eect on the behaviour of most
people, it is criminal law that legitimizes states’ anti-pandemic policies.
Therefore, it is believed that excessive or illegal use of criminal law to address
healthcare problems can set a threatening case law (Matić Bošković and
Nenadić, 2021). Attention is paid mainly to the manifestations of crime as a
basis for the transformation of criminal law because of the relatively short
time and instable situation associated with the pandemic. The assessment
of the dynamics of the criminal situation varies from its uniqueness to
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its typicality, because the pandemic can be considered as another crisis.
Quarantine restrictions, together with persistent factors, aect crime rate
in the short term.
The long-term trend may be mainly the growth of mercenary crime
determined by the socio-economic consequences of COVID-19 (United
Nations Oce on Drugs and Crime, 2020). Organized crime Trends are
much worse (Council of the European Union, 2020; Eurojust, 2021; Europol,
2020a). Experts, however, believe that they are not completely unexpected,
but only reect its exibility and ability to adapt to any conditions. This
feature is typical for any period of crisis (Europol, 2020c). At the same time,
it is noted that it is dicult to assess the impact of the pandemic on drug
markets. Post-crisis dynamics of supply and demand can signicantly aect
supply channels and lead to increased violence (Europol, 2020a)
Problems of uncertainty regarding criminal law transformation in the
context of the pandemic have also entailed diculties in modernizing
criminal justice. The unied judicial procedure for combating COVID-
19-related crimes has not been adapted to the change rates of quarantine
restrictions (House of Commons Justice Committee, 2021). At the same
time, the courts and law enforcement agencies were under extreme public
pressure, while judicial independence was perceived as a source of social
and political tension (Sarmiento, 2021) The provisions of the European
Convention and the case law developed on their basis cannot, however, be
levelled by the need to reduce costs and social distance (McCann, 2020).
Therefore, the EU and Ukraine, like other countries, need to determine
the importance of the pandemic for transforming criminal law as the basis
of criminal justice with regard to the rule of law.
During the pandemic, some new manifestations and certain trends
have emerged in the traditional types of crime, the duration of which is
not obvious. The issue of the introduction of criminal law responses for
non-compliance with quarantine restrictions by the population is criticized
in light of the provisions of the Convention for the Protection of Human
Rights and Fundamental Freedoms (European Court of Human Rights,
2021a).
Given the above, studying the specics of the development of criminal
law in the European and other countries in the region in the pandemic
context is topical and appropriate for further improvement of the legislation
and practice.
The foregoing gives grounds to determine the aim of this study as
an analysis of European and Ukrainian experience of the criminal law
transformation in the context of COVID-19.
56
Svitlana Tsyganii, Dmytro Shyian, Mariia Diakur, Vitalii Areshonkov y Volodymyr
Hospodarenko
Criminal Law Transformation in the Context of COVID-19: The Experience of the European
Union and Ukraine
This aim provided for the following objectives: determine the novelties
introduced in the criminal law of Ukraine and the EU during the pandemic,
including their compliance with the legal provisions of the ECHR, and
establish the social signicance of general trends in criminal law.
1. Literature Review
The review of studies on the prospects for the transformation of criminal
law in the context of COVID-19 shows a wide range of diverse problems
considered by European and Ukrainian scholars.
Researchers raised the issue of the social signicance of criminal law in
crisis situations, as quarantine restrictions established in other regulations
were the grounds for banning COVID-19-related actions. European and
Ukrainian researchers have concluded that governments have applied
similar approaches. The dynamic situation and incomplete understanding
of the nature and implications of the disease have led to excessive
restrictions and their partial regulation (Krajewska, 2021). Guarantees of
fundamental human rights established in the course of strict quarantine
were mostly rare and patternless (Zhuravel, Hetman and Hylyaka, 2021).
This has also aected the controversial understanding of the use of criminal
law in a pandemic.
The main tool of criminal law used to regulate the behaviour is the
criminalization of acts. The pandemic context poses serious threats to the
excess criminalization (there are examples of proposals to criminalize cough
in public places (Skolnik, 2020). Many studies emphasize the lack of a clear
understanding of the social signicance of criminal law in general and its
main institutions in particular (Harding and Oberg, 2021), which leads
to inconsistent changes in legal regulation (Matić Bošković and Nenadić,
2021), imposing excessive sanctions for violations and ever-changing
measures (Peršak, 2020).
The authors note that it is dicult to assess the eectiveness of the
transformation of criminal law in an unstable situation with fairly long
criminal proceedings (Turanjanin and Radulović, 2020). The negative result
is a violation of the fundamental principles enshrined in the Convention for
the Protection of Human Rights and Fundamental Freedoms (European
Court of Human Rights, 2021a). According to the experts, the implications
of such a policy are projected to the future, because there will be an
inevitable problem of further integration of convicts into society (Skolnik,
2020; Terpstra, de Maillard, Salet, and Roche, 2021).
At the same time, the issues of developing new criminal law provisions
and applying existing ones in the pandemic context remain poorly studied.
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Analysing the legal provisions of the European Court of Human Rights
(2021a, b, c), practitioners outline the potential problems related to the
compulsory vaccination (Varlamov, 2022).
The literature presents views on the importance of the type of guilt in
criminalizing actions, where subjects intentionally or negligently violate
quarantine rules, and determining the sanctions for such violations (Baker,
2020; Turanjanin and Radulović, 2020). Ukrainian researchers discuss
the criminal law provisions of Ukraine, which are aimed at preventing the
spread of COVID-19 (Novikova, 2020), as well as controversial aspects of
the distinction between the administrative and criminal liability in this area
(Hupalo, 2020).
So, the literature review allowed talking about lack of unied
approaches. In general, studies of the interaction between the pandemic
and the development of criminal law are ongoing. The scale of the
pandemic implications is the basis for a new direction, where the criminal
law transformation will be studied as part of the development of criminal
justice (Baker, 2020).
2. Methods
In order to achieve its aim, this study was carried out with a view to the
practical tasks in stages based on the logic of studying and presenting the
material. These stages were the following:
• search and selection of scientic literature and regulatory acts, the
ECHR case law;
• analysis of the content of the selected materials and evaluation of
the research ndings;
• identifying trends in the transformation of criminal law in the
EU and Ukraine and clarifying their compliance with the legal
provisions of the ECHR;
• determining the aim of the article;
• drawing conclusions and providing practical recommendations to
improve the quality of criminal law and its compliance with human
rights;
• outlining prospects for further research in this area.
The empirical background of the study was the provisions of the criminal
law of the EU Member States (Bulgaria, Denmark, Spain, Latvia, Romania,
Hungary, Finland, France, the Czech Republic, Sweden) and Ukraine
concerning COVID-19-related crimes. The relevant provisions of the
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Svitlana Tsyganii, Dmytro Shyian, Mariia Diakur, Vitalii Areshonkov y Volodymyr
Hospodarenko
Criminal Law Transformation in the Context of COVID-19: The Experience of the European
Union and Ukraine
Convention for the Protection of Human Rights and Fundamental Freedoms
(European Court of Human Rights, 2021a) and the legal provisions of
the ECHR were also analysed. Besides, the experience of Poland, where
authorities have imposed administrative sanctions for COVID-19-related
oenses was considered. Nevertheless, these sanctions are informative for
this study in terms of the amounts of the nes (according to Engel criteria).
The study also involved statistics that reect the COVID-19-related criminal
situation in Ukraine.
In aggregate, these data allow assessing the European and Ukrainian
experience of criminal law response to COVID-19-related crimes, its social
signicance and prospects for the development of criminal law.
In achieving the aim set in the article, the following methods were used
in this study:
• content analysis to study signicant volumes of regulatory and
scientic texts and determine their relevance to the problems of
criminal law transformation during the pandemic;
• doctrinal approach to study criminal law regulations as regulatory
structures that establish criminal liability for certain socially
dangerous acts;
• comparative method to establish similarities and dierences
between the relevant criminal law provisions that were included in
criminal legislation or transformed during the pandemic period;
• general methods, including Aristotelean method, analysis and
synthesis, generalization.
3. Results
The COVID-19 pandemic has aected the criminal law transformation
by amending existing criminal laws and/or creating new ones. Accordingly,
we can talk about the formation of a set of criminal provisions (Organization
for Security and Co-operation in Europe (OSCE), 2020), where the anti-
pandemic policy of national governments directly determines their social
signicance and structural features.
This set of provisions and their content are dynamic in view of the
temporal features of the pandemic. An act of violation of quarantine
rules may be identied as the main crime. These rules are established by
other regulations to prevent infectious (especially dangerous infectious)
diseases. This criminal provision is not new, as the problem of creating
a risk of getting infected with dangerous diseases existed long before the
COVID-19 pandemic. Therefore, this provision is either applied unchanged
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to violations of the COVID-19 prevention rules, or has been adapted to the
current situation.
An example is Article 325 of the Criminal Code of Ukraine “Violation
of sanitary rules and regulations to prevent infectious diseases and mass
poisoning”, which was introduced in 2009. For the purposes of countering
the COVID-19 pandemic, it was adapted to increase the severity of the
sanction, rather than the description of the act itself.
So, regardless of the specic legislative wording of the title of the article
and the terminology used to describe the signs of the act, it is possible to
identify similar characteristics of this crime in the criminal law of European
countries and Ukraine:
• the act is the violation of quarantine rules aimed at preventing the
spread of dangerous infectious diseases, which include COVID-19;
• these rules are established by other regulations, so criminal law
serves as an additional protection of public health and public safety;
• violation of the rules leads or may lead to the spread of the disease,
that is a person may be punished if his/her actions only posed a
threat of negative consequences;
• there is a separate indication of such a violation in the event of grave
consequences (damage to health, death of one person or several
persons).
In some European countries (for example, the Czech Republic)
intentional and negligent violations of these rules are two separate crimes.
In Ukraine, this act is qualied under Article 325 of the Criminal Code
regardless of the type of guilt. However, there should be a fact of negligent
attitude to consequences.
With regard to the potential and actual damage that this crime can cause,
it is considered quite grave (serious). This is evidenced by the sanctions
imposed for its commission. At the same time, the criminal legislation of
some states provides that if the violation of the relevant rules does not
cause serious harm the penalty is a ne, but the amount is fairly large (see
Table 1).
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Svitlana Tsyganii, Dmytro Shyian, Mariia Diakur, Vitalii Areshonkov y Volodymyr
Hospodarenko
Criminal Law Transformation in the Context of COVID-19: The Experience of the European
Union and Ukraine
Table 1. Comparison of the amount of punishment in the
form of a ne for violating quarantine rules without serious
consequences
Country Limits of nes for violating the most common
quarantine restrictions (EUR)
Bulgaria 5,100 – 25,500
Spain 100 – 30,000
Ukraine 535 – 1,606
France Up to 3,750
Czech Republic 107,000
Own elaboration.
Unreasoned changes in the number of nes for crimes related to violations
of quarantine restrictions in Ukraine have led to a negative balance of
administrative and criminal law sanctions. This is why an administrative ne
is greater than a ne provided as a punishment for a crime.
However, imprisonment is the typical punishment for this crime in the
criminal law of European countries and in Ukraine. This punishment is
established in case of both intentional and negligent violation of quarantine
rules. It is signicant to compare the European and Ukrainian experience of
establishing penalties for violating quarantine rules in the event of serious
consequences (serious damage to health, causing the death of at least one
person) (see Figure 1).
Figure 1: Comparison of custodial sanction (in years) for
violation of quarantine rules in case of serious consequences.
(Own elaboration).
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It was noted that the criminal law provisions on crimes related to
violations of quarantine rules aimed at preventing infectious diseases have
largely been adapted in European and Ukrainian legislation to prevent
the COVID-19 pandemic. Accordingly, persons who committed this crime
without connection with COVID-19 are also convicted under the relevant
article of criminal law. However, during the pandemic period, the number
of people accused of violating quarantine rules is objectively increasing
compared to previous periods. This increase is observed in the second half
of the pandemic period, which is due to the need to adapt investigative and
judicial bodies to changes in legislation. The experience of Ukraine conrms
this statement (see Figure 2).
Figure 2: Dynamics of charges for violating quarantine
restrictions in 2019-2021 (Ukraine’s experience)
Source: Oce of the General Prosecutor of Ukraine (2022).
According to the Unied State Register of Court Decisions, 15 sentences,
including 7 COVID-19-related crimes, were passed under Article 325
of the Criminal Code of Ukraine in 2019-2021. All the convictions were
instituted against entrepreneurs. In 6 cases, persons were ned from UAH
17 thousand (EUR 535) to UAH 34 thousand (EUR 1,070). In one case, the
convict was sentenced to 2 years in prison, but the person was released from
serving a probation sentence. It is noteworthy that the convicts are persons
who violated the quarantine rules at their enterprises (shops, restaurants,
etc.) only. In no case did such a violation entail serious consequences. In
addition to this crime, the criminal law of European countries and Ukraine
provides for other acts that may be classied as those related to COVID-19.
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Svitlana Tsyganii, Dmytro Shyian, Mariia Diakur, Vitalii Areshonkov y Volodymyr
Hospodarenko
Criminal Law Transformation in the Context of COVID-19: The Experience of the European
Union and Ukraine
For example, in Ukraine it is the falsication of medicines and document
forgery, including the use of forged documents (see Table 2).
Table 2. Statistics on COVID-19-related crimes
(Ukrainian experience)
Years Total number of
registered crimes Falsication
of medicines Violation of
quarantine rules Document
forgery
2019 444,130 29 70 15,359
2020 360,622 22 111 13,345
2021 321,443 21 101 14,037
Source: Oce of the General Prosecutor of Ukraine (2022).
At the same time, no changes were made to the criminal law provisions
on falsication of medicines and forgery of documents during the pandemic.
Some European countries have criminalized forging or using forged COVID
documents. For example, at the end of 2021, a new article was introduced
into Latvian criminal law, which provides for liability not only for document
forgery, but also for the acquisition of a forged COVID-19 vaccination
certicate, test results or recovery certicate. The use of a real certicate,
but issued to another person will also entail punishment. Such acts may be
punishable by up to 1 year in prison.
It is worth noting that the social danger of such changes to the criminal
law of Latvia were caused by the involvement of healthcare workers
in the forgery of relevant documents and their acquisition by ordinary
citizens. There have also been attempts in Ukraine to criminalize forgery
of vaccination-related documents, however, it did not nd support in
parliament. Today, all these actions are covered by the existing article of
criminal law on document forgery.
In some European countries (for example, Spain, Romania, Hungary)
new or existing rules have been introduced to prosecute for disseminating
inaccurate information about the pandemic. This experience was not
widespread and was negatively assessed by international organizations
(OSCE, 2020)
As the application of criminal law entails lengthy and complex criminal
proceedings, some countries have used administrative sanctions to address
the pandemic. For example, in Poland, administrative nes (up to € 6,600)
were imposed for violating quarantine restrictions (participating in protests).
However, lower courts upheld the rule of law, closing administrative cases
brought by law enforcement agencies against protesters. In view of the Engel
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criteria, these provisions can be assessed as bordering on criminal coercion
due to the severity of nancial constraints. Therefore, they are informative
in terms of understanding the trends in the criminal law transformation.
Governments’ resort to coercive action during the pandemic have
received unambiguous feedback among the population of European
countries and in Ukraine. Such a perception is reinforced by the unclear
link between criminal law and the success of anti-pandemic policies.
Besides, the problematic issue related to criminal law transformation
during the COVID-19 pandemic is the compliance of government decisions
with the provisions of the Convention for the Protection of Human Rights
and Fundamental Freedoms and the case law of the European Court of
Human Rights (2021a).
The reasonability of using criminal law to restrict the realization of a
number of human rights and freedoms during the pandemic must comply
with Article 15 of the Convention. In general, the uniqueness of the
situation, which requires restrictions on rights and freedoms, provides for
an assessment by national authorities. As the ECHR has stated in Ireland v.
The United Kingdom (§ 207): “It falls in the rst place to each Contracting
State, with its responsibility for “the life of [its] nation”, to determine
whether that life is threatened by a “public emergency” and, if so, how far
it is necessary to go in attempting to overcome the emergency”. However,
Article 15(2) of the Convention protects certain rights from derogation from
obligations to secure them. They include those provided for in Article 7 of
the Convention (European Court of Human Rights, 2021b).
Legal certainty is a fundamental principle of building criminal law
provisions. The lack of “quality of the law” to determine the crime causes
a violation of Article 7 of the Convention (Kafkaris v. Cyprus, §§ 150 and
152). At the same time, the application of too vague concepts and criteria
in the interpretation of a legislative provision may make this provision
incompatible with the clarity and predictability requirements regarding
its consequences (Liivik v. Estonia, §§ 96-104) (European Court of Human
Rights, 2021c).
A serious rethinking of the role of criminal law in addressing social
issues is required in view of the necessity for states to respond to society’s
needs for protection against adverse events, including signicant threats to
health. Emphasis should be placed on the need to transform criminal law
depending on how complex and long-lasting the threats to law, order and
security are.
It is obvious that criminalization of COVID-19-related acts as such is not
appropriate. It seems more appropriate to formulate generalized criminal
law provisions that could be used to protect public health in any pandemic,
without violating the analogy prohibition principle. However, the criminal
64
Svitlana Tsyganii, Dmytro Shyian, Mariia Diakur, Vitalii Areshonkov y Volodymyr
Hospodarenko
Criminal Law Transformation in the Context of COVID-19: The Experience of the European
Union and Ukraine
law transformation in the context of the long-term consequences of the
COVID-19 pandemic should also be on the agenda. In particular, this
applies to criminal law provisions on domestic violence, online harassment
and digital extortion. A separate problem is the criminal law response to the
trends of organized crime that emerged during the pandemic.
The quality of criminal law should be a priority, because the application
of criminal law can cause serious social tensions, raise issues of segregation
and inequality, encourage mass discontent due to violations/restrictions of
human rights and freedoms. In the context of globalization of threats to
the rule of law, it is advisable to raise the issue of developing European
principles of criminal law policy and prospects for criminal law without
denying the sovereign right of states to criminal law rule-making. On the
basis of a comprehensive discussion, such principles could be enshrined in
an international instrument of recommendatory nature, to which all states
in the region could accede.
Such principles should include strategic, as well as legal and technical
aspects: the importance of criminal law as the last tool for resolving social
conicts; systemic connection of criminal legislation with administrative
and tort law, as well as criminal procedure; dening the limits of criminal
law enforcement; compliance of criminal legislation with crime trends;
inadmissibility of excessive casualness in building criminal law provisions
to protect against analogy; clarity of criminal law structures to prevent
certainty principle violations, etc.
4. Discussion
The research ndings demonstrated that the criminal law transformation
during the COVID-19 pandemic is on the agenda in all EU member states
and in Ukraine. There is no comprehensive research on this topic either in
European countries or in Ukraine because the situation is unstable.
Our study conrmed the importance of research on the signicance
and prospects of criminal law as a social regulator. We should agree
with the researchers that the pandemic has led to tactical criminal law
transformation: over-criminalization and high change rates. This has
resulted in uncertainty and confusion in the development of anti-pandemic
strategies and has led to accelerated procedures for discussing and adopting
new or changed provisions (Bošković and Nenadić, 2021). Our research has
shown that this calls into question the understanding of crime as a category
that embodies ethical compromise in any legal system (Harding and Oberg,
2021). The research ndings demonstrated the validity of expert opinions
on the inadmissibility of the use of fuzzy standards and vague concepts in
the criminalization of actions (Krajewska, 2021). This is inuenced by the
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Vol. 40 Nº 73 (2022): 52-70
negative prospects of further stigmatization of convicts (Skolnik, 2020;
Terpstra et al., 2021). We also conrmed the controversial nature of the
imposition of severe sanctions for violations of ever-changing rules and
measures (Peršak, 2020).
Currently, experts do not have a vision of the reasonability of transforming
criminal law with a focus on eliminating/limiting the long-term implications
of the COVID-19 pandemic. Although Europol (2020c) reports and some
EU strategies (Council of the European Union, 2020) emphasize crime
trends (domestic violence, sexual oenses against children, organized drug
crime, etc.), scientic assessment of relevant criminal law provisions is still
being formed. We consider this threatening from the perspective of further
development of criminal activity.
Scientic research that dealt with the criminalization and penalization
of violations of certain anti-pandemic measures are generally declaratory.
They address the features of crime related to violation of quarantine rules in
the criminal law of European countries (Turanjanin and Radulović, 2020),
the establishment and application of signicant xed nes (Baker, 2020).
In the Ukrainian literature, such an analysis is accompanied by negative
assessments of the quality of legislation in view of law enforcement practice
(Hupalo, 2020; Novikova, 2020). In this context, we advanced and proved
the thesis of the priority of adapting existing criminal law over developing
new ones. We also established a certain discrepancy between the traditional
and modern provisions of the criminal law of European states and Ukraine.
The thesis on the reasonability of developing and discussing European
principles of criminal law policy and prospects for the development of
criminal law is another result of our study, which could be enshrined in an
international recommendatory document.
Conclusions
In a pandemic context, national governments are actively using the
criminal law tools to maintain law and order and ensure the safety of
the population. Therefore, the analysis of approaches to criminal law
transformation in European countries is relevant.
The study found that criminalizing and penalizing COVID-19-related
actions is considered part of anti-pandemic policy. The focus is on the
response to individual crimes related to COVID-19, rather than on crime
trends in general. The predominant approach in European countries and
in Ukraine is the adaptation of existing criminal law provisions in order to
prevent COVID-19. The pandemic promoted the increase in penalties for
crimes related to violations of quarantine rules.
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Svitlana Tsyganii, Dmytro Shyian, Mariia Diakur, Vitalii Areshonkov y Volodymyr
Hospodarenko
Criminal Law Transformation in the Context of COVID-19: The Experience of the European
Union and Ukraine
Some European countries have introduced criminal liability for forging
COVID documents (vaccination certicates, tests), while Ukraine refused
to criminalize those acts. The introduction of a criminal law ban on the
dissemination of certain information during the pandemic was negatively
assessed by international organizations. In general, incomplete compliance
with the provisions of the Convention for the Protection of Human Rights
and Fundamental Freedoms and the case law of the European Court
of Human Rights (2021a) are the problems of criminal law in European
countries and in Ukraine in the context of the COVID-19 pandemic.
It is reasonable to raise the issue of developing European principles of
criminal law policy and prospects for the development of criminal law in the
context of globalization of threats to public security. Such principles could
be embodied in an international recommendatory instrument based on a
comprehensive discussion. Such principles should include both strategic,
legal and technical aspects: the importance of criminal law as the last tool for
resolving social conicts; systemic connection of criminal legislation with
administrative and tort law, as well as with criminal procedure; dening the
limits of criminal law enforcement; compliance of criminal legislation with
crime trends; inadmissibility of excessive casualness in developing criminal
law provisions to protect against analogy; clarity of criminal law structures
to prevent violation of the certainty principle.
This study underlines the pandemic situation aects the criminal law
transformation despite its dynamics. The prospects for further comparative
analysis of the development of criminal law of the EU and Ukraine is the
unication of national criminal law policies, improving rule-making and law
enforcement. This opens up additional opportunities for the development
of uniform standards of criminal law in the European region in order to
protect human rights and security of society.
Bibliographic References
BAKER, Estella. 2020. “The crisis that changed everything: reections on
COVID-19.” In: European Journal of Crime, Criminal Law and Criminal
Justice. Vol. 4, No. 28, pp. 311-331. Available online. In: https://doi.
org/10.1163/15718174-28040001. Consultation date: 02/02/2022
COUNCIL OF THE EUROPEAN UNION. 2020. December 18. EU Drugs
strategy 2021-2025. Available online. In: https://data.consilium.europa.
eu/doc/document/ST-14178-2020-INIT/en/pdf. Consultation date:
02/02/2022.
CSONKA, Peter; SALAZAR, Lorenzo. 2021. “Corruption and bribery in the
wake of the covid-19 pandemic. Responses at the international and EU
67
CUESTIONES POLÍTICAS
Vol. 40 Nº 73 (2022): 52-70
levels.” In: EUCRIM. Vol. 2, pp. 111-114. Available online. In: https://doi.
org/10.30709/eucrim-2021-015. Consultation date: 02/02/2022.
DORNEANU, Laura; MALKA, Julius; COECKELBERGHS, Laura. 2021. “Impact
of COVID-19 on access to justice and documents. On the application of
EU law, the Charter of Fundamental Rights and the possibility of non-
jurisdictional remedies” In: ERA Forum. Vol. 22, pp. 407-419. Available
online. In: https://doi.org/10.1007/s12027-021-00684-4. Consultation
date: 016/02/2022.
EUROJUST. 2021. May. The impact of COVID-19 on judicial cooperation on
criminal matters. Available online. In: https://www.eurojust.europa.eu/
sites/default/les/Documents/pdf/2021_05_12_covid_19_report.pdf.
Consultation date: 02/02/2022.
EUROPEAN COURT OF HUMAN RIGHTS. 2021a. Convention for the
protection of human rights and fundamental freedoms. Available
online. In: https://www.echr.coe.int/documents/convention_eng.pdf.
Consultation date: 02/02/2022.
EUROPEAN COURT OF HUMAN RIGHTS. 2021b. April 30. Guide on Article
15 of the European Convention on Human Rights: Derogation in time of
emergency. Available online. In: https://www.echr.coe.int/documents/
Guide_Art_15_ENG.pdf. Consultation date: 02/02/2022.
EUROPEAN COURT OF HUMAN RIGHTS. 2021c. December 31. Guide on
Article 7 of the European Convention on Human Rights: No punishment
without law: the principle that only the law can dene a crime and
prescribe a penalty. Available online. In: https://www.echr.coe.int/
Documents/Guide_Art_7_ENG.pdf. Consultation date: 02/02/2022
EUROPEAN PARLIAMENT. 2020. April 17. European Parliament resolution
of 17 April 2020 on EU coordinated action to combat the COVID-19
pandemic and its consequences. Available online. In: https://www.
europarl.europa.eu/doceo/document/TA-9-2020-0054_EN.html
Consultation date: 02/02/2022.
EUROPOL. 2020a. March. Pandemic proteering how criminals exploit the
COVID-19 crisis. Available online. In: https://www.europol.europa.
eu/cms/sites/default/files/documents/pandemic_profiteering-
how_criminals_exploit_the_covid-19_crisis.pdf. Consultation date:
02/02/2022.
EUROPOL. 2020b. April 17. Viral marketing Counterfeits, substandard goods
and intellectual property crime in the COVID-19 pandemic. Available
online. In: https://www.europol.europa.eu/cms/sites/default/les/
68
Svitlana Tsyganii, Dmytro Shyian, Mariia Diakur, Vitalii Areshonkov y Volodymyr
Hospodarenko
Criminal Law Transformation in the Context of COVID-19: The Experience of the European
Union and Ukraine
documents/report_covid_19_-_viral_marketing_counterfeits.pdf.
Consultation date: 02/02/2022.
EUROPOL. 2020c. April 30. Beyond the pandemic: how covid-19 will shape
the serious and organised crime landscape in the EU. Available online.
In: https://www.europol.europa.eu/publications-documents/beyond-
pandemic-how-covid-19-will-shape-serious-and-organised-crime-
landscape-in-eu. Consultation date: 01/02/2022
EUROPOL. 2020d. June 19. Exploiting isolation: Sexual predators increasingly
targeting children during Covid pandemic. Available online. In: https://
www.europol.europa.eu/newsroom/news/exploiting-isolation-sexual-
predators-increasingly-targeting-children-during-covid-pandemic.
Consultation date: 02/02/2022.
MEŠKO, Gorazd. 2021. “Police, policing and COVID-19 Pandemic.” In: European
Journal of Crime, Criminal Law and Criminal Justice. Vol. 29, No. 3-4,
pp. 183-188. Available online. In: https://doi.org/10.1163/15718174-
29030001. Consultation date: 02/02/2022.
HARDING, Christopher; OBERG, Jacob. 2021. “The journey of EU criminal
law on the ship of fools – what are the implications for supranational
governance of EU criminal justice agencies?” In: The Maastricht Journal
of European and Comparative Law. Vol. 28, No. 2, pp. 192-211. Available
online. In: https://doi.org/10.1177/1023263X211005967. Consultation
date: 02/02/2022.
HOUSE OF COMMONS JUSTICE COMMITTEE. 2021, September 22.
Covid-19 and the criminal law Fourth Report of Session 2021–22
Report, together with formal minutes relating to the report Ordered
by the House of Commons to be printed 21 September 2021. Available
online. In: https://committees.parliament.uk/publications/7439/
documents/77794/default/. Consultation date: 02/02/2022.
HUPALO, Kateryna. 2020. “COVID-19: What is wrong with the introduced
criminal and administrative liability?” In: Yuryst i Zakon. Vol. 11, Art.
13580.
KRAJEWSKA, Atina. 2021. “Connecting reproductive rights, democracy, and
the rule of law: lessons from Poland in times of COVID-19.” In: German
Law Journal. Vol. 22, pp. 1072-1097. Available online. In: https://doi.
org/10.1017/glj.2021.56. Consultation date: 14/03/2022.
BOŠKOVIĆ, Marina; NENADIĆ, Svetlana. 2021. “Іmpact of COVID-19
pandemic on criminal justice systems accross Europe.” In: EU and
Comparative Law Issues and Challenges Series (ECLIC). Vol. 5, pp.
69
CUESTIONES POLÍTICAS
Vol. 40 Nº 73 (2022): 52-70
263-290. Available online. In: https://doi.org/10.25234/eclic/18307.
Consultation date: 14/03/2022.
MCCANN, Adam. 2020. “Virtual criminal justice and good governance
during covid-19.” In: European Journal of Comparative Law and
Governance. Vol. 7, No. 3, pp. 225-229. Available online. In: https://doi.
org/10.1163/22134514-00703001. Consultation date: 14/03/2022.
NOVIKOVA, Maria. 2020, June 25. How the coronavirus ended for the Criminal
Code. Available online. In: https://yur-gazeta.com/publications/
practice/kriminalne-pravo-ta-proces/yak-dlya-kriminalnogo-kodeksu-
koronavirus-zakinchivsya.html. Consultation date: 04/02/2022.
OFFICE OF THE GENERAL PROSECUTOR OF UKRAINE. 2022. On registered
criminal oenses and the results of their pre-trial investigation: statistics.
Available online. In: https://gp.gov.ua/ua/posts/pro-zareyestrovani-
kriminalni-pravoporushennya-ta-rezultati-yih-dosudovogo-
rozsliduvannya-2. Consultation date: 02/02/2022.
ORGANIZATION FOR SECURITY AND CO-OPERATION IN EUROPE (OSCE).
2020. OSCE human dimension commitments and state responses to the
covid-19 pandemic. Available online. In: https://www.osce.org/les/f/
documents/e/c/457567_0.pdf Consultation date: 04/02/2022.
PERŠAK, Nina. 2020. “COVID-19 and the social responses thereto: penal and
criminological lessons, human rights and rule of law implications.”
In: European Journal of Crime, Criminal Law and Criminal
Justice, Vol. 3, No. 28, pp. 205-216. Available online. In: http://doi.
org/10.1163/15718174-02803001. Consultation date: 04/02/2022.
POPKO, Vadym. 2021. “Approximation of criminal law systems in the context
of crime globalization.” In: Entrepreneurship, Economy and Law. Vol.
1, pp. 227-237. Available online. In: https://doi.org/10.32849/2663-
5313/2021.1.39. Consultation date: 04/02/2022.
SARMIENTO, Daniel. 2021. “Europe’s judiciary at the crossroads.” In: The
Maastricht Journal of European and Comparative Law. Vol. 28, No. 1, pp.
3-6. Available online. In: https://doi.org/10.1177/1023263X21994338.
Consultation date: 04/02/2022.
SKOLNIK, Terry. 2020. “Criminal law during (and after) COVID-19” In:
Manitoba Law Journal. Vol. 43, No. 4, pp. 145-179.
STOTT, Cliord; WEST, Owen; HARRISON, Mark. 2020. “A turning point,
securitization, and policing in the context of Covid-19: building a new
social contract between state and nation?” In: Policing: A Journal of Policy
and Practice. Vol. 14, No. 3, pp. 574-578. Available online. In: https://
doi.org/10.1093/police/paaa021. Consultation date: 04/02/2022.
70
Svitlana Tsyganii, Dmytro Shyian, Mariia Diakur, Vitalii Areshonkov y Volodymyr
Hospodarenko
Criminal Law Transformation in the Context of COVID-19: The Experience of the European
Union and Ukraine
TERPSTRA, Jan; DE MAILLARD, Jacques; SALET, Renze; ROCHE, Sebastian.
2021. “Policing the corona crisis: A comparison between France and
the Netherlands.” In: International Journal of Police Science and
Management. Vol. 23, No. 2, pp. 168-181. Available online. In: https://
doi.org/10.1177/1461355720980772. Consultation date: 04/02/2022.
TURANJANIN, Veljko; RADULOVIĆ, Darko. 2020. “Coronavirus (COVID-19)
and possibilities for criminal law reaction in Europe: a review.” In:
Iranian Journal of Public Health. Vol. 49, No. 11, pp. 4-11. Available
online. In: https://doi.org/10.18502/ijph.v49iS1.3664. Consultation
date: 04/02/2022.
UNITED NATIONS OFFICE ON DRUGS AND CRIME. 2020. Research brief:
Eect of the COVID-19 pandemic and related restrictions on homicide
and property crime. Available online. In: https://www.unodc.org/
documents/data-and-analysis/covid/Property_Crime_Brief_2020.pdf.
Consultation date: 02/02/2022.
VARLAMOV, Yevheniy. 2022. Vaccination and pandemic in the practice of the
European Court of Human Rights: Summing up the year 2021. Available
online. In: https://www.echr.com.ua/vakcinaciya-ta-pandemiya-u-
praktici-yespl-pidsumki-2021-roku/ Consultation date: 03/02/2022.
ZHURAVEL, Volodymyr; HETMAN, Yevhen; HYLYAKA, Oleh. 2021. Report
on scientic activity of the National Academy of the Legal Sciences of
Ukraine for the year 2020. Kharkiv, National Academy of the Legal
Sciences of Ukraine.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
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