Correlation between Provocation of a Criminal Offense and Complicity in the Commission of a Criminal Offense under the Criminal Law of Ukraine

The article proposes a criminal legal assessment of the provocation of a criminal offense and its relationship with the institution of complicity in the criminal law of Ukraine. The analysis of these phenomena, on the basis of which the external similarity of provocation and complicity is determined, is carried out. However, the absence of their substantive unity is established. A wide range of acts of a provocative nature, which is not covered by various manifestations of complicity under the Article 27 of the Criminal Code of Ukraine, is given.

Crime can be committed as a result of provocation. The provoker makes a significant contribution to the intention formation of the person and the establishment of the crime fact; therefore, the provoker is often called either an instigator, or an accomplice, or an organizer. In the article the assessment of crime provocation in correlation with the institute of complicity in a crime from the position of criminal law is given. The issue of feigned accomplice (the provoker qualifies as a variety of complicity in a crime), disputable in science, is analysed on the basis of objective and subjective elements of complicity in a crime. Existence of a quantitative element (participation of two persons) is formal. The provoker has a specific mental attitude to the committed act. The intent of the provoker is a desire to make the provoked person commit a crime, expose this person to prosecution, while the intent of the accomplice is to implement a concrete plan, a specific crime in the absence of an intent to cooperate with law enforcement authorities. Despite an intentional fault, both in crime provocation and in complicity in a crime, in the first case the intent does not cover joint participation in the commission of a crime. In this regard, there is a conclusion about provocation as person's unilateral activity. There is also nonawareness of participants on joint crime commission. The provoked person does not think about committing crimes jointly with the provoker. The provoker's actions with their hidden character are traitorous at their core. Analysis of the ways the provoker influences the provoked person shows them as distinctive features of crime provocation. Consequently, the found external similarities of crime provocation and complicity in a crime do not lead the author to a conclusion about the unity of the content of the discussed concepts.

The main difference lies in the subjective component of the phenomena under consideration. The provoker's actions are not determined by the institute of complicity in criminal law. The article describes a broader range of actions made by the provoker unlike the accomplice in a crime, which requires an independent evaluation of actions of the provoker without references to Article 27 of the Criminal Code of the Ukraine. The author concludes there is increased danger to society from the provoker, compared with the accomplice, due to the targeted nature of provocation. A need to reform the institute of crime provocation in the Ukrainian criminal law and to include an independent element of crime provocation.