PROHIBITION OF TORTURE: A NEGATIVE SIGN OF THE CIRCUMSTANCE OF FULFILLING THE DUTY REGARDING THE PROTECTION OF THE FATHERLAND, INDEPENDENCE AND TERRITORIAL INTEGRITY OF UKRAINE

The article is devoted to the analysis of the prohibition of torture as a negative sign of the circumstances of fulfilling the duty to protect the Motherland, independence and territorial integrity of Ukraine. From the standpoint of a critical understanding of the ideas of utilitarianism, the work highlights the social conditioning of the provisions of Part 1 of Art. 43-1 of the Criminal Code of Ukraine related to the prohibition of torture. In order to achieve the goal of the study — to determine the content of the prohibition of torture, as a condition for the application of Part 1 of Art. 43-1 of the Criminal Code of Ukraine, the provisions of Art. 127 of the Criminal Code of Ukraine, Art. 8 of the Rome Statute of the International Criminal Court, Art. 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 3 of the European Convention on Human Rights. The global polemic regarding the constitutive features of torture is outlined in the article. There is an emphasis on understanding in recognizing that torture constitutes an act that is intended to cause severe pain and/or suffering. It was noted that the issue of the obligation of a special subject and a special purpose of torture remains debatable and affects the definitive formalization of the prohibition of torture as a crime against humanity and a war crime. With the help of a systematic analysis of the provisions of Part 1 of Art. 43-1 of the Criminal Code of Ukraine, a conclusion was made regarding the establishment of the ban on torture as a war crime. Considering the provisions of Part 2 of Art. 43-1 of the Criminal Code of Ukraine noted the inadmissibility of cruel attachment in determining the signs of torture to the requirement of the presence of a special subject. It is noted that the feature of a special purpose, which is mandatory for torture as a war crime, is not decisive for the purposes of Part 1 of Art. 43-1 of the Criminal Code of Ukraine. It is summarized that what is decisive for ascertaining the absence of signs of torture, as the possibility of applying Part 1 of Art. 43–1 of the Criminal Code of Ukraine, there is no realized desire of a private person to cause severe pain and suffering as a way of repelling and deterring the armed aggression of the Russian Federation or the aggression of another country against Ukraine.