The evolution of the concept of torture in the criminal law of Ukraine: analysis of amendments to article 127 of the Criminal Code of Ukraine

The article provides a comprehensive analysis of the amendments to Article 127 of the Criminal Code of Ukraine, taking into account international standards, in particular the provisions of the UN Convention against Torture, the Rome Statute, and the case law of the European Court of Human Rights. The relevance of the study is due to both the state of war in Ukraine and the increase in cases of torture, as well as the need to harmonize national legislation with international law. The article examines the new wording of Part 1 of Article 127 of the Criminal Code of Ukraine, according to which torture is defined not only as an act but also as an omission aimed at causing severe physical pain or moral suffering. It is established that this wording significantly changes the approach to the legal qualification of torture, particularly by expanding the range of possible forms of its commission. The issue of the victim of torture is also examined — specifically, the possibility of recognizing as victims both the direct subject of physical abuse and individuals subjected to psychological pressure through violence against others. The author argues that the current wording contains vague definitions, particularly in relation to «pain» and «suffering», which are limited only to the moral aspect for suffering and only to the physical aspect for pain, whereas the Convention states that both pain and suffering may be either physical or mental. The article explores the problematic nature of defining discrimination as a purpose of torture and the motives of racial, national, and religious intolerance, which are currently poorly formulated. An important aspect of the study is the analysis of Part 3 of Article 127 of the Criminal Code, which introduces a special subject – a representative of the state. The article identifies issues related to distinguishing liability for torture from liability for war crimes under Article 438 of the Criminal Code. The author suggests adding a clarifying provision to resolve this overlap. The article also proposes specific editorial amendments to the provisions of Article 127 of the Criminal Code of Ukraine aimed at eliminating contradictions and aligning them with international law, as well as an amendment to Article 67 of the Criminal Code of Ukraine to recognize the commission of a criminal offense during martial law or a state of emergency as an aggravating circumstance. The author concludes that, despite the positive steps taken towards aligning national legislation on torture with international standards, the current version still requires further refinement.