THE SUBJECT OF CRIMINAL ENCROACHMENT AS AN ELEMENT OF THE FORENSIC CHARACTERISTICS OF THE ILLEGAL FISHING

Abstract

The scientific article is devoted to the investigation of the subject of criminal encroachment of the illegal fishing, as a constituent element of the forensic characteristics. The concept of the subject of criminal encroachment and its features for the specified criminal offense were studied, in particular, the conditions under which aquatic biological resources are not the subject of criminal encroachment were specified. Attention was drawn to the fact that the main normative acts, which contain a list of types of aquatic bioresources, extraction of which, contrary to the established procedure, is an illegal act, in particular: Recreational and sport fishing rules approved by order of the Ministry of Agrarian Policy and Food of Ukraine of 19 September 2022 № 700 and in The Law of Ukraine «On the Red Book of Ukraine» of 07 February 2002, which defines the list of fish, the catch of which is categorically prohibited. In accordance with the order of the Ministry of Environmental Protection and Natural Resources of Ukraine of 19 January 2021 № 29, the specified list contains 77 species of fish. Based on the analysis of the study of court cases for the years 2013-2022 based on the facts of illegal fishing, a list of fish species that are the subject of criminal encroachment is given, namely: crucian carp – 67%, common roach – 55 %, common perch – 39 %, zander – 36 %, сommon bream – 34 %, white bream – 24 %, northern pike – 22 %, common carp – 20 % and others. The author notes that the subject of criminal encroachmen, as an element of the forensic characteristics of the investigated illegal act, is related to its conditions and method. We are able to follow this relationship thanks to the study of a mandatory feature - substantial damage, the meaning and concept of which is not defined at the legislative level, which creates certain difficulties for the prosecution. Only the Plenum of the Supreme Court of Ukraine № 17 of 10 December 2004 «On judicial practice in cases of crimes and other offenses against the environment» reveals to us the criteria for significant damage: destruction of fish spawning grounds; catching fish during the spawning period, few of its species or those that are difficult to reproduce; catching a large amount of fish, or fish whose catch is prohibited, etc.