Problems of qualification of acts committed by a person holding the status of a “thief in law”: an analysis of judicial practice

The article is devoted to a comprehensive doctrinal and law-enforcement analysis of the substantive and formal legal problems related to the legislative definition of the “thief in law” through the prism of the principle of legal certainty. The relevance of the study is determined by the introduction in 2020 of the relevant amendments to the Criminal Code of Ukraine, which brought into the legal framework terminology originating from criminal subculture and lacking an established legal meaning. The article substantiates the thesis that the absence of a statutory definition of the concept of a “thief in law” and clear, formalized criteria for identifying the relevant status has resulted in systemic difficulties both in criminal law doctrine and in investigative and judicial practice, particularly in the sphere of proof. Special attention is paid to the analysis of the principle of legal certainty as a component of the rule of law and to clarifying its significance for the admissibility of criminalizing status-based characteristics. Based on a synthesis of scholarly positions advanced by Ukrainian legal scholars, it is demonstrated that the current legislative definitions of “criminal influence” and “subject of increased criminal influence, including a «thief in law»” are generalized and largely evaluative in nature. This generates risks of tautology, logical circularity of definitions, and the substitution of proof of specific conduct with the establishment of a formal status. The article also examines judicial practice, which shows that law-enforcement problems are not caused by the so-called “criminalization of status”, but rather by the insufficient quality of normative specification and procedural description of the incriminated acts. It is argued that the object of criminal-law assessment within the relevant corpus delicti consists of specific actions aimed at establishing or spreading criminal influence, whereas the status of a “thief in law” performs an auxiliary function as a characteristic of a special subject and an indicator of an enhanced capacity to influence others. A comparative legal analysis of Georgian legislation makes it possible to identify both the advantages of statutory recognition of the relevant status and its internal limitations stemming from the cross-referential nature of legal definitions. In conclusion, the article substantiates the need for further improvement of criminal-law regulation by endowing the relevant terminology with clear behavioral content, which would ensure compliance with the principle of legal certainty and enhance the effectiveness and fairness of criminal justice.