Кримінально-правова ймовірність
Probabilistic Criminal Law

Summary/Abstract: From the standpoint of the doctrine of the elements of crime, the commission of an act and the moment it acquires the attribute of social dangerousness do not always coincide. In offences qualified by their consequences, dangerousness arises or increases only with the development of a causal link. In the case of a completed attempt, the elements of the offence are absent despite the act being complete. The act’s transformation into a legally relevant event is preceded by something not explicitly named by law. In both situations, there is a temporal discrepancy between the act and the emergence of its dangerousness. The relevance of this study lies in the fact that such a discrepancy cannot be explained within existing conceptions of the elements of a criminal offence. Its aim is therefore to propose additions to those conceptions. The hypothesis advanced is that consequences and causality belong not to the elements of the offence but to an external attribute: social dangerousness. The emergence of dangerousness is itself a consequence which, depending on the statutory disposition, may be general in nature or specifically defined (particularly where the objective element is materially constructed). An act has no legal meaning without dangerousness; a criminal offence as an act always produces it, at least in a general form. Otherwise, the matter concerns triviality, i.e. the absence of social dangerousness. Yet the development of causality – even when it leads only to general dangerousness – depends not solely on the act but also on many external factors. Hence, there are no grounds for intervention before dangerousness arises. The likelihood of such emergence remains a forecast, an assessment of future events. Provisions of the Criminal Code of Ukraine demonstrate that the law requires such forecasting both by the liable subject and within legal qualification.

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