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
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Vol.41 N° 76
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Recibido el 23/12/22 Aceptado el 26/01/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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Vol. 41, Nº 76 (2023), 356-366
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Usurpation of power under current
conditions: political and legal concept
DOI: https://doi.org/10.46398/cuestpol.4176.20
Petro Vorobey *
Valerii Matviichuk **
Inna Khar ***
Volodymyr Vilgushynskiy ****
Alexander Felyk *****
Abstract
The purpose of the research was to determine the approaches
to understand the emergence of the concept of “usurpation
of power”. Accordingly, its political and legal nature as a
phenomenon is analyzed and the investigation of its inuence
on the branches of public power is carried out. In addition, the
current discussion is examined and the views of some scientists on
this issue are criticized and, at the same time, relevant proposals
are made. The methodological basis of the research was constituted by
the comparative-legal and systemic analysis, the formal-legal method,
the hermeneutic method and the methods of analysis and synthesis. As a
conclusion it has been established that the development of the rule of law
and civil society in Ukraine requires, rst of all, ontological integration of
the modern and current concept of the rule of law in public institutions and
society, along with the observance of legal norms in all spheres of public life
and; especially, it demands the prevention of conditions that determine the
usurpation of power by civil society, judicial and law enforcement bodies to
prevent signs of usurpation of power in public authorities.
Keywords: branches of public power; usurpation of power; corruption
of public authorities; local government authorities;
contemporary political theory.
* Doctor of Law, Professor, Head of the Department of Criminal Law, Procedure and Criminology of Kyiv
University of Intellectual Property and Law of the National University “Odesa Law Academy”, Ukraine.
ORCID ID: https://orcid.org/0000-0003-2470-1920
** Doctor of Law, Professor, Professor of the Department of Criminal Law, Procedure and Criminology
of Kyiv University of Intellectual Property and Law of the National University “Odesa Law Academy,
Ukraine. ORCID ID: https://orcid.org/0000-0003-3459-0056
*** Candidate of Law, Associate Professor, Head of the Department of Postgraduate and Doctoral Studies
of Kyiv University of Intellectual Property and Law of the National University “Odesa Law Academy”,
Ukraine. ORCID ID: https://orcid.org/0000-0002-7676-8273
**** PhD of Law, Doctoral Studies of Kyiv University of Intellectual Property and Law of the National
University “Odesa Law Academy”, Ukraine. ORCID ID: https://orcid.org/0000-0002-0222-7028
***** Postgraduate Studies of Kyiv University of Intellectual Property and Law of the National University
“Odesa Law Academy”, Ukraine. ORCID ID: https://orcid.org/0000-0003-4344-9804
357
CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 356-366
Usurpación del poder en las condiciones actuales:
concepto político y jurídico
Resumen
El propósito de la investigación fue la determinación de los enfoques
para comprender el surgimiento del concepto de “usurpación del poder”. En
consecuencia, se analiza su naturaleza política y jurídica como fenómeno y
se realiza la investigación de su inuencia en las ramas del poder público.
Además, se examina la discusión actual y se critican los puntos de vista
de algunos cientícos sobre este tema y, al mismo tiempo, se hacen las
propuestas pertinentes. La base metodológica de la investigación estuvo
constituida por el análisis comparativo-jurídico y sistémico, el método
formal-jurídico, el método hermenéutico y los métodos de análisis y síntesis.
Como conclusión se ha establecido que el desarrollo del Estado de derecho
y la sociedad civil en Ucrania requiere, en primer lugar, de la integración
ontológica del concepto moderno y actual de Estado de derecho en las
instituciones públicas y en la sociedad, junto a la observancia de las normas
legales en todas las esferas de la vida pública y; especialmente, demanda la
prevención de las condiciones que determinan la usurpación del poder por
parte de la sociedad civil, los organismos judiciales y de aplicación de la ley
para prevenir signos de usurpación del poder en las autoridades públicas.
Palabras clave: ramas del poder público; usurpación de poder;
corrupción de los poderes públicos; autoridades del
gobierno local; teoría política contemporánea.
Introduction
The usurpation of power as a political and legal concept has existed for
a very long time. Since the beginning of the division of society into classes,
many problematic issues of regulating relations between themselves have
arisen. Some classes seized power and exploited others. From the experience
of centuries, it is known that any person who has power is inclined to abuse
it and goes in this direction until he/she achieves his/her goal.
Power completely passed to one person – the leader, and this leadership
continued for a long time, spreading its inuence to others. In such
conditions, the concept arose from late usurpation – “possession”, means
seizing, (retention). All empires, kingdoms, states with dictatorial regimes,
without exception, were and are an example of such usurpation of power.
In this research, it is necessary to show the dialectics of the essence and the
phenomenon of this concept. Justifying the impossibility of usurpation by
separate branches of power, one sees such a possibility of its usurpation by
358
Petro Vorobey, Valerii Matviichuk, Inna Khar, Volodymyr Vilgushynskiy y Alexander Felyk
Usurpation of power under current conditions: political and legal concept
only one person, which can only be the guarantor of the Constitution, that
is, the President of Ukraine. All other ocials cannot usurp power, due to
the specics of their activities.
A misunderstanding of the very nature of usurpation can lead to dierent
proposals by scientists to criminalize such action by supplementing the
Criminal Code of Ukraine with the corresponding norm. The existence of
such a norm and its substantiation in the Criminal Code of Ukraine will lead
to misinterpretations of this concept, namely, the norm will be “dead”, since
it is impossible to prosecute the President of Ukraine due to the complex
mechanism of his impeachment and the lack of social conditionality of
criminal liability for the usurpation of power. This would be contrary to the
principle of expediency and the principle of inevitability of responsibility.
1. Literature review
The works of some domestic and foreign scientists is devoted to the
research of the usurpation of power. At the same time, these works are
supercial and do not fully reect the political and legal nature of this
concept. There are discussions, polemics, scientists’ points of view on this
important issue are analyzed, but there is no common understanding and
approach to it. The issue itself is extremely dicult, because, in our opinion,
there is more political than legal matter in it. To solve this important
issue, there should be a systematic approach to research, and then, on the
basis of its result, it is possible to develop a unied strategy to combat the
usurpation of power.
Myslyvyi V.A. believes that the observance of the democratic principles
of the principle of separation of powers, and, consequently, its social
value, should be facilitated by the provision of criminal legal protection
of these branches of state power, and, consequently, the prevention of
manifestations of its usurpation (Myslyvyi, 2017).
In our opinion, such a position does not adequately reect the very nature
of the concept of usurpation. It levels its origins and does not provide an
opportunity to more deeply explore and fully understand this phenomenon.
In fact, this problem is much more complicated than it might seem at rst
glance. A logical question arises, what actually constitutes usurpation? The
term “usurpation” is a political and legal concept that has deep historical
roots.
It is obviously related to the law violation. In various sources, the term
“usurpation” (from lat. usurpatio – possession) means the seizing (retention)
of power by force, committed in the law violation, or the misappropriation
of power or the seizure of power.
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CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 356-366
As Myslyvyi notes, political practice and historical and legal experience
show that the usurpation of power is understood as both violent actions
and the established strategy of non-violent seizure of state power by
high-ranking ocials, heads of military structures, leaders of separatist
movements and terrorist groups, etc. (Myslyvyi, 2017).
The urgency of the research topic lies in the fact that in-depth research
of such political and legal concept as the usurpation of power will provide
the possibility to obtain as much information and relevant knowledge as
possible in order to develop a common understanding of it.
This will lead to further theoretical developments to prevent the
usurpation of power and to make specic proposals. The existing scientic
developments dier in their views and positions on this important theoretical
and practical issue. Further developments and scientic researches will
make it possible to more specically detail the concept of the usurpation
of power and develop a single and correct mechanism for combating this
phenomenon.
2. Materials and methods
The research is based on the works of foreign and Ukrainian researchers
on methodological approaches to understanding public relations from the
point of view of legal theory, administrative law, civil law, etc.
Through the use of the gnoseological method, the essence of public
relations was claried from the point of view of the legal theory,
administrative law, civil law, etc., thanks to the logical-semantic method,
the conceptual framework was deepened, the essence of the theoretical,
administrative, civil-legal aspects of regulating public relations from the
point of view of legal theory, administrative law, civil law, etc. Thanks to
the existing methods of law, we were able to analyze the essence of public
relations from the point of view of legal theory, administrative law, civil
law, etc.
3. Results and discussion
The development of the rule-of-law state and civil society in Ukraine
requires, rst of all, the establishment of the rule of law in the state and
society, the observance of legal norms in all spheres of state and public life.
This task is especially important in the application of legislation on criminal
liability, which entails the most severe means of state coercion, the most
severe measures of state punishment. The law requires that everyone who
committed a crime to be brought to criminal liability and that no innocent
person be punished (Article 2 of the Criminal Procedure Code of Ukraine).
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Petro Vorobey, Valerii Matviichuk, Inna Khar, Volodymyr Vilgushynskiy y Alexander Felyk
Usurpation of power under current conditions: political and legal concept
Responsibility for guilt, for the guilty iniction of socially dangerous
damage is the main basis and foundation of criminal liability. Only the
person guilty of a crime can be prosecuted. No one can be found guilty of
committing a crime, as well as subjected to punishment until his/her guilt
is proved legally and established by a guilty verdict of the court (part 2 of
Article 2 of the Criminal Code of Ukraine) (Vorobei, 1999: 87).
This corresponds to the principle of the rule of law, which means that
the declared legislative provisions guaranteeing the protection of the most
important public relations in the state must be provided with appropriate
criminal legal means. Most of the declared constitutional provisions for
the development of Ukraine as a rule-of-law state have the appropriate
provision (Tylchyk et al., 2022).
The theory and practice of state formation consistently implement the
idea of the conceptual signicance of the provisions of the constitution of
Ukraine regarding the principles and tasks of the legislation on criminal
liability, its institutions and norms, which are reliable tools for ensuring
constitutional guarantees.
The Criminal Code of Ukraine ensures the protection of the constitutional
order and state power of Ukraine, its sovereignty and independence (Articles
1,109 of the Criminal Code of Ukraine). Establishing the conformity of
the criminal law with the constitution of Ukraine should be based on
constitutional provisions relating not only to the sphere of public protected
law, but to all constitutional prescriptions taken in a systemic unity (Baulin,
2014).
Constitutional guarantees should be provided with criminal law
protection, given their importance, because the practice of state formation in
the context of reform processes requires the completeness and consistency
of such an approach (Marchenko et al., 2022).
The analysis of scientic research devoted to counteracting crimes
against the constitutional order and state power testies to their general
nature in relation to the criminal law protection of the foundations of the
national security of Ukraine.
The number of crimes committed in Ukraine against the foundations
of Ukraine’s national security is rather insignicant compared to the total
number of crimes (Bantyshev, 2014). In today’s realities, the problem of
criminal law protection of the foundations of the national security of Ukraine
and the functioning of the state power itself is of particular relevance and
attention.
According to the Constitution of Ukraine, the separation of state
power in Ukraine into legislative, executive and judicial powers means
the implementation of their powers through power structures within the
established limits and in accordance with the law.
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Vol. 41 Nº 76 (2023): 356-366
The principle of separation of powers is applied in most countries of the
world, where there is a constant struggle between the separation of powers
and the legal status in the system of public authorities. As you can see, there
are many views and disagreements on the theory of separation of powers
(Villasmil Espinoza et al., 2022).
However, if actions aimed at the violent overthrow of the constitutional
order or the seizure of state power are, as a rule, obvious in their social
danger and illegality, non-violent usurpation of power, as, in particular,
the experience of state formation in Ukrainian territories, is a more
complicate, often disguised phenomenon associated with the illegal actions
of completely legitimate representatives of the branches of state power
(Matviichuk et al., 2022).
This approach to understanding this issue is not only wrong, but also
illogical. Its negative lies in the fact that without even a legislative basis
for criminal liability for the usurpation of power, there is an opinion that
representatives of dierent branches of state power can usurp power. One
gets the impression that there is some kind of imposition and persuasion
of the possibility of usurpation of power by representatives of dierent
branches of state power.
This thesis is conrmed by the relevant provisions on the basics of
lustration, provided for by the Law of Ukraine “On the Lustration of Power”
dated September 16, 2014, where in part 2 of Article 1 it is noted:
The lustration is carried out in order to prevent participation in the
management of state aairs of persons who, by their decisions, actions or inaction,
implemented measures (and/or contributed to their implementation) aimed at
the usurpation of power by the President of Ukraine, undermining the foundations
of national security and defense of Ukraine or unlawful violation of human rights
and freedoms (Leheza et al., 2022: 344).
As we can see, this law is about the usurpation of power only by the
President of Ukraine, and not by representatives of dierent branches
of state power. From this law, it is only clear that the above-mentioned
persons did not usurp power separately, independently from the President
of Ukraine, but carried out their ocial duties. To date, there is not a single
case of signs of usurpation of power by such persons.
Moreover, a huge number of lustrated representatives of dierent
branches of power went to court demanding the protection of their
constitutional rights and freedoms. We consider this law unconstitutional,
because many innocent citizens suered because of it. There is no relation
of representatives of dierent branches of state power specied in this law
to the usurpation of power by the President of Ukraine.
Myslyvyi (2017) considers: “The twenty-ve-year history of Ukraines”
independence shows that in the system of relations of power on its territory,
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Petro Vorobey, Valerii Matviichuk, Inna Khar, Volodymyr Vilgushynskiy y Alexander Felyk
Usurpation of power under current conditions: political and legal concept
from time to time, situations arise when separate branches of power try to
violate the existing balance, that, as a rule, is associated with the challenges
of usurpation of power.
It is obvious that such actions are of a diverse nature and are manifested
in violation of the legislation regulating the status, functions, competence,
forms and methods of activity of high-ranking ocials, reected in various
kinds of collusion between representatives of separate branches of power,
inter-factional and inter-party agreements, accompanied by corruption,
using bribery of government ocials and public ocers, that was often
recognized by power holders themselves.
At the same time, despite the fact that these actions often demonstrate
obvious arbitrariness and violation of the law, they are by no means always
characterized by violent actions and, on the contrary, are disguised under
the guise of political rivalry (Myslyvyi, 2017).
In our opinion, this is an insucient analysis and argumentation of
the organization of the work of separate branches of power, considering
that their activities are connected with the challenges of the usurpation of
power. Myslyvyi notes:
The usurpation of power occurs, as a rule, in cases where at least one of the
three branches of power gradually loses the signs of a democratically formed body,
and its functions are concentrated by an ocial who has the authority or ability to
inuence the activities of the branches of power (Myslyvyi, 2017: 155).
It is impossible to usurp power by denition, since the very principle
of the activities of the branches of state power is inextricably linked with
law enforcement and judicial systems. They are generally out of politics,
so considering some factors of their inuence on other branches of power
in order to usurp power looks somewhat illogical. The legislative branch of
power has the most democratic system of its own activities, as it is based on
the will of the people and has a representation of dierent segments of the
population.
The activities of this legislative body are normalized in such a way that
none of its decisions can be taken without the attention of civil society,
and therefore it is not only out of place, but also incorrect to talk about the
usurpation of power in this case. The supreme executive branch of power
carries out its activities on the basis of the Constitution of Ukraine and is
responsible to the President of Ukraine and is controlled and accountable
to the Verkhovna Rada of Ukraine within the frameworks provided for in
Articles 85, 87 of the Constitution of Ukraine.
The specied branch of power is dependent in its activities on the
President of Ukraine and the Verkhovna Rada of Ukraine, and therefore,
as we see, there can be no usurpation of power by the specied branch of
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power in Ukraine, either from the point of view of the very specics of its
activity, or from the point of view of formal logic (Kobrusieva et al., 2021).
The usurpation of local power cannot be perceived as real at all, since
local government authorities operate in such a legislative system of
coordinates that even theoretically makes such a phenomenon impossible
(Chornyi, 2018).
The history of the state formation of independent Ukraine has
clearly demonstrated that signs of usurpation of power in some places
characterized the activities of the President of Ukraine, who, according to
the Constitution, is the head of state and the guarantor of state sovereignty,
the territorial integrity of the state, compliance with the requirements of
the Constitution, human and civil rights and freedoms.
At the same time, the inviolability of the President of Ukraine during the
exercise of his ocial powers (Article 105 of the Constitution of Ukraine),
as well as the absence of legislation on his impeachment and the lack of a
criminal law prohibition of the usurpation of power, deprive society of the
opportunity to legally prevent violations (Halaburda et al., 2021).
Despite the democratic, social and legal system of Ukraine (Article 1
of the Constitution) and without real levers and means of inuence and
stopping the violation of the law, people are the bearer of sovereignty and
the only source of power in Ukraine (Article 5 of the Constitution), resorting
to peaceful mass protests, rallies and demonstrations, exercising their
right, guaranteed by Article 39 of the Constitution of Ukraine (Constitution
of Ukraine, 1996).
Conclusions
Therefore, it can be argued that in the context of the reform processes
in Ukraine and the desire to become a full member of the European
Community, civil society poses new challenges to the state power to deepen
democratic processes. This is the key to the further ght against corruption
with the help of institutions, civil society, law enforcement and the judicial
system. Under such conditions, the President of Ukraine loses relevant
important inuences on the branches of power in order to usurp it.
In democratic countries, the question of the usurpation of power is not
raised at all, since the system of power itself is built in such a way that it
makes it impossible, even theoretically, to usurp power by its top leadership
of the state. And vice versa, when public authorities at all levels in a country
are too corrupt and these “corporate interests” are inextricably linked and
subordinated not according to the principle of the vertical of power, but
according to the principle of agreement, toadying, careerism and fear of
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Petro Vorobey, Valerii Matviichuk, Inna Khar, Volodymyr Vilgushynskiy y Alexander Felyk
Usurpation of power under current conditions: political and legal concept
losing position, then there is a real threat of concentration of power in one
person.
This leads to permissiveness and direct usurpation of power without the
help of any forceful methods. There are enough such examples in world
history, including in recent history, where the usurpation of power by one
person gives rise to a dictatorship that develops into a dictatorial regime.
An example of such regimes is the Russian Federation, North Korea, Syria,
the Republic of Belarus, Iran and some African countries.
A long stay in the highest positions of the leaders of these countries gives
rise to a feeling of permissiveness, impunity, a cult of personality. Such a
top ocial of the state loses the sense of responsibility and reality and puts
himself above the law and the state itself. Scientists have proven that the
most serious disease of a person can be a disease of power, when, having
become ill with it, a person sees no other way out than to be in power for
life. Such persons become dangerous not only for the state itself and its
citizens, but also for other countries of the world.
It is no coincidence that in developed countries the electoral laws
and the tenure of senior positions are strictly observed. This allows us to
systematically develop the institutions of civil society, ensure its further
democratization, implement foreign and improve current legislation. Thus,
the usurpation of power is clear evidence of the lack of eective activity of
civil society institutions and its eective levers of inuence on the highest
ocials of the state, as well as corruption in all branches of government.
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Esta revista fue editada en formato digital y publicada
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