According to the “Uniform Report on Criminal Offenses” posted on the website of the General Prosecutor’s Office of Ukraine ([electronic resource]: https://old.gp.gov.ua/ua/statinfo.html ), the share of the number of criminal offenses against property in relation to the total number of all criminal offenses has always been the largest. And it is the number of registered criminal offenses in the form of theft (Article 185 of the Criminal Code of Ukraine) that is predominant in this share. This necessitates a detailed and thorough study of its concept and grounds for demarcation.
To study the concept and signs of the composition of theft as a criminal offense, we will analyze the judicial practice on this topic. According to the resolution of the Plenum of the Supreme Court “On judicial practice in cases of crimes against property”, theft (secret theft of someone else’s property) is a theft, the perpetrator of which believes that he does it imperceptibly for the victim or other persons.
By committing theft, a person takes possession of someone else’s property, that is, property that is not in his ownership or legal possession, for his own benefit. Property can be anything that has a monetary value, namely things, cash, securities and metals. Mandatory feature of theft is the method of taking property – it must be secret, when the offender does it imperceptibly for other persons.
DISTINGUISHING THEFT FROM PETTY THEFT OF SOMEONE ELSE’S PROPERTY
Administrative responsibility is provided for petty theft of someone else’s property, unlike theft. According to Art. 51 of the Code of Criminal Procedure, the theft of someone else’s property is considered petty if the value of such property at the time of the offense does not exceed 0.2 of the tax-free minimum income of citizens. (*as of July 1, 2022, the administrative liability limit will be at the level of UAH 1,254 × 0.2 = UAH 250.80).
Therefore, if a person stole property, the value of which is less than UAH 250.80, then he will bear administrative responsibility. If this limit was exceeded, it is criminal.
DISTINGUISHING THE THEFT FROM THE FIND
In order to distinguish theft from a find, the following circumstances should be determined:
a) whether the disputed property has been removed from the possession of the owner;
b) whether the owner knows the location of this property;
c) how much time passed after the loss of the property by the owner and its discovery, whether the owner had reasons to consider the property permanently lost;
d) whether the person who found the property was an eyewitness to the event of loss and took any active actions aimed at removing the property from the owner’s possession;
e) whether it was possible to identify the legal owner of the property.
Let’s imagine the situation, Petrenko decided to throw away his own bicycle, because it is defective and unusable, and left it near the garbage cans of the house. A few months later, Petrenko saw that a neighbor was riding his already working bicycle and wanted to get it back. Petrenko believed that the most effective way to return the bike would be to contact the police. In your opinion, the police should classify the neighbor’s actions as theft or a find?
DISTINGUISHING THEFT FROM FRAUD
According to Art. 190 of the Criminal Code of Ukraine, by fraud we mean taking possession of someone else’s property or acquiring the right to property by deception or abuse of trust. Deception (informing the victim of false information or concealing certain circumstances) or abuse of trust (unfair use of the victim’s trust) in fraud is used by the guilty person with the specific purpose of causing the victim to believe in the profitability or obligation of transferring property or the right to it. At the same time, a mandatory sign of fraud is that the victim voluntarily transferred the property or the right to it. If deception or abuse of trust was used to gain access to property, i.e. the seizure of property took place secretly, then there is no element of fraud, and such actions should be classified as theft.
We suggest considering the circumstances of a real court case. According to the proceedings, the victim agreed with the bus driver to hand over the bag to another person. Among the passengers of this bus was Sydorenko. He was also driving this vehicle and overheard the agreement between the victim and the bus driver, so he took the bag with the aim of theft, calling himself the victim’s son.
How, in your opinion, should this act be qualified?
As the local court established, the victim did not hand over her bag voluntarily, which is a mandatory sign of fraud. In fact, the accused used the circumstances that objectively existed at the time of the theft, so the deception of the driver in this particular case was only a way to access someone else’s property, removing it in the presence of outsiders, Sydorenko hoped that his actions would not be perceived by these persons as illegal . Since deception under such circumstances is not a way of unlawfully seizing someone else’s property, the socially dangerous act committed by him cannot constitute fraud. Therefore, the actions should be correctly classified according to Part 2 of Art. 185 of the Criminal Code.
LIABILITY FOR THEFT COMMITTED DURING MARTIAL LAW
Law of Ukraine No. 2117-IX “On Amendments to the Criminal Code of Ukraine on Strengthening Liability for Looting”, according to which Part 4 of Art. 185 of the Criminal Code of Ukraine was added after the words “in large quantities” to add the words “or in the conditions of a state of war or state of emergency”.
Prior to the corresponding version of the Criminal Law, theft was considered a criminal misdemeanor, but deprivation of liberty for this offense was provided for in the presence of such qualifying circumstances as repeated or pre-conspiracy by a group of persons, with penetration into housing or other property or in a large or especially large size. Now, the circumstance of committing theft under martial law has been added to the above list as a qualifying element of the crime. That is, if a person commits theft under such conditions, his actions will be qualified under Part 4 of Art. 185 of the Criminal Code of Ukraine, which is punishable by imprisonment from 5 to 8 years.
Also, for the correct qualification, it is necessary to distinguish when exactly the qualifying feature of theft will be perpetration in conditions of war or state of emergency. After all, the lawmaker connects this feature not simply to the time of the introduction of the legal regime of martial law in Ukraine, but specifically to the places of fire damage, temporary occupation or the passage of troops.
If the abduction took place even during the period of martial law, but outside the borders of the above-mentioned districts and without any use of the conditions of martial law, then it is inappropriate to apply the relevant qualifying feature. Such an interpretation corresponds to the purpose of strengthening criminal liability for crimes against property, which is reflected in the explanatory note to the relevant draft law No. 2117-IX: https://itd.rada.gov.ua/billInfo/Bills/pubFile/1243626 ).