Espionage under the criminal legislation of Ukraine: evolution and issues of revitalizing its statutory definition

This article examines the evolution of the legal definition of espionage in Ukrainian criminal legislation, from Article 66 of the Criminal Code of the Ukrainian SSR of 1922 to Articles 111 and 114 of the Criminal Code of Ukraine of 2001. The study substantiates the need to revitalize certain provisions of earlier legislative definitions by incorporating them into the current Article 114. It argues that abandoning the detailed specification of the subject matter of espionage, previously contained in Article 57 of the 1960 Criminal Code and the draft Criminal Code of 10 September 1998, was conceptually unjustified. In particular, the article supports restoring the reference to “other information, the collection or transfer of which is carried out under the instructions of a foreign intelligence service,” especially under martial law. It is further argued that the phrase “for use to the detriment of the interests of Ukraine” should not be included in Article 114 because it would unduly restrict criminal liability for espionage involving such information. The article also proposes restoring “theft” as a form of espionage, as recognized in earlier criminal codes, and introducing “storage” as an additional form of espionage activity. It demonstrates that espionage differs from other forms of high treason under Article 111 and justifies transferring espionage committed by Ukrainian citizens from Article 111 to Article 114 by establishing a separate paragraph for this category of offenders. Particular attention is devoted to the motives for espionage, classified as personal and anti-state. The latter, together with the commission of espionage under martial law and by means of theft, is proposed to constitute a qualified corpus delicti carrying increased criminal liability.

criminal legislation; corpus delicti; revitalization; foundations of national security; high treason; espionage; state secret