PROPER DETERMINATION OF THE SIGNIFICANCE OF ENVIRONMENTAL DAMAGE CAUSED BY ILLEGAL FISHING AS A BASIS FOR CRIMINAL LIABILITY UNDER ARTICLE 249 OF THE CRIMINAL CODE OF UKRAINE

Abstract

The purpose. The purpose of this study is to determine the proper approach to establishing the substantiality of environmental damage caused by illegal fishing as a prerequisite for holding a person criminally liable under Article 249 of the Criminal Code of Ukraine. Research methods. To achieve the stated objective and ensure well-founded conclusions, the following research methods were employed: analysis of legislative acts, content analysis of scholarly publications, the comparative legal method, the case study method in examining the case law of the Supreme Court, and systematisation and generalisation of the findings to formulate scientifically substantiated conclusions. Results. The article examines the issue of properly establishing the substantiality of environmental damage caused by illegal fishing as a prerequisite for imposing criminal liability under Article 249 of the Criminal Code of Ukraine (hereinafter – the CC of Ukraine). It provides examples of inconsistent case law of the Criminal Cassation Court within the Supreme Court on this issue. In one line of decisions, a forensic expert examination to establish substantial damage is considered unnecessary, whereas in another, the absence of an expert opinion serves as grounds for closing criminal proceedings due to the absence of the corpus delicti or for overturning the decisions of lower courts on the basis of an improper determination that the offender caused substantial damage, which constitutes a mandatory element of the objective aspect of the criminal offence provided for in Article 249 of the CC of Ukraine. The article also analyses scholarly approaches to determining substantial environmental damage caused by illegal fishing, distinguishing between the material (economic) approach and the ecological approach. Conclusions. The study presents an algorithm for conducting forensic environmental engineering examinations to assess the substantiality of environmental damage resulting from illegal fishing, as proposed in the academic literature. The algorithm includes: establishing whether fishing activities were carried out without the required permits; determining whether prohibited fishing gear was used; establishing the quantity and total weight of aquatic biological resources harvested during the illegal fishing activity; and determining the species composition of the fish caught, as well as whether the fishing occurred during the spawning period. The authors also present their own position regarding the mandatory nature of conducting a forensic expert examination to establish the substantiality of environmental damage caused by illegal fishing as a prerequisite for imposing criminal liability under Article 249 of the Criminal Code of Ukraine.