Review

An analysis of the practice of applying a discharge from criminal liability for crimes affecting water resources shows that as a rule it was carried out in connection with effective repentance accordingly to Art. 45 of the Criminal Code.

Besides, the courts actively applied Art. 49 of the Criminal Code when discharged from criminal liability due to limitation period and, sometimes, Art. 47, 48 of the Criminal Code (because of admission by bail and due to a change of situation).

The purpose of the article is to identify the main courts’ problems during applying the rules of the Criminal Code (hereinafter referred to as the Criminal Code) of Ukraine on discharge from criminal liability for crimes affecting water resources.

The analysis of case law clearly demonstrated the following problems:

1. Courts are ambiguous in their decisions: (a) Taking into account that a crime must be committed for the first time (in some cases, there is no indication of this in court decisions at all); b) concretization in their decisions of effective repentance, namely: in some cases the courts do not point to the effective repentance when applying Art. 45 of the Criminal Code; in court decisions there is no proper specification of  effective repentance (the courts have mostly confined themselves to stating that a person “sincerely repented of the crime”, “sincerely repented”) as appropriate objective manifestations (recognition of wrongful acts, promises to rectify, expression of readiness for socially useful work, etc.).
2. Courts have difficulties in determining the starting point of the limitation period when applying Art. 49 of the Criminal Code for crimes affecting water resources. This concerns, in particular, the determination of the starting point of the limitation period. In their decisions, the courts generally adhere to the requirements of Part 3 of Art. 4 of the Criminal Code that the time of committing a crime is recognized as the time of committing a person under the law on criminal liability for acts or omissions. In their decisions, the courts generally adhere to the requirements of the Criminal Code, stressed the time of committing a crime recognized as the time of committing a person during the law on criminal liability for acts or omissions. The jurisprudence has formed its approach, which considered optimal in the literature: “The statute of limitations on continuing crimes is calculated from the time of termination of the guilty plea or contrary to its will (detention, appearance with duty, voluntary discharge of the person’s duty under the threat of criminal prosecution) or since the occurrence of the events that cause the person's behavior to become criminal (such as the theft of an unlawfully stored weapon)".
3. Courts have unjustifiably recognized the change in the circumstances of the termination of the person's employment relationship with the employer (his dismissal) and, conversely, the emergence of such employment relationship (his placement in a certain position) because such a person's behavior may objectively or subjectively testify to the realization of her intention to avoid criminal liability or that the dismissal initiated by the employer and directly related to the commission of the crime.

Key words: criminal liability, effective remorse, water resources, limitation period, bail, change of situation.