From illegal access to various types of data to malware that paralyzes a whole society: all such activities fall into the general category of “hacking”, a phenomenon which the young European democracy of Ukraine must respond to in its difficult transition. The principal question is: how can Ukraine maintain a fragile balance between compliance with international obligations, adoption of measures that effectively correspond to its realities and upholding its national interests?

In today’s glob­al­ized and di­git­al­ized world, cy­ber­crimes are one of the pri­or­ity areas of crim­in­al policy. One of the most wide­spread types of cy­ber­crime is com­monly re­ferred to as “hack­ing”, or ac­cord­ing to Art. 361 of the Ukrain­i­an Pen­al Code: un­au­thor­ized in­ter­fer­ence in the op­er­a­tion of com­puters, auto­mated sys­tems, com­puter and tele­com net­works. Coun­ter­ing this par­tic­u­lar crime is par­tic­u­larly rel­ev­ant for Ukraine, since it does not only wit­ness day to day crim­in­al activ­ity of this sort, but has also re­peatedly fallen vic­tim to high-pro­file in­cid­ents that had caused wide­spread harm, such as the in­va­sion of the auto­mated pres­id­en­tial elec­tion sys­tem in 2014, the 2015 and 2016 at­tacks on the en­ergy sec­tor and the spread of the Petya.A mal­ware in sum­mer 2017.

The fo­cus on Ukraine is also groun­ded on its on­go­ing in­ter­na­tion­al co­oper­a­tion in the area of cy­ber­crime con­trol. This is par­tic­u­larly per­tin­ent to the co­oper­a­tion with the EU, as un­der­lined, for in­stance, in the re­cent EU-Ukraine As­so­ci­ation Agree­ment. Fur­ther­more, go­ing through its trans­ition­al peri­od with the aim to be­come an EU mem­ber state, Ukraine has as­sumed uni­lat­er­al ob­lig­a­tions to ad­apt its le­gis­la­tion to EU law.

The prin­cip­al aim of this re­search is the eval­u­ation of the meas­ures that Ukraine has taken in or­der to counter the crim­in­al activ­ity of "hack­ing". As­sesse­ment em­phas­izes the co­her­ence of meas­ures with­in the sys­tem, the ef­fect­ive­ness of their ap­plic­a­tion to counter the crime, as well as their con­sist­ency with in­ter­na­tion­al law ob­lig­a­tions. As a res­ult, im­prove­ments are to be pro­posed for Ukraine as well as cer­tain gen­er­al­iz­a­tions with re­spect to im­ple­ment­a­tion of cy­ber crime policies in trans­ition­al so­ci­et­ies.

Pre­lim­in­ary re­search find­ings demon­strate that re­spond­ing to hack­ing (as a share of cy­ber­crime in gen­er­al) is one of the stra­tegic pri­or­it­ies of the cy­ber­se­cur­ity doc­trine of Ukraine. Like in oth­er states (and the EU-level), the cy­ber­se­cur­ity sys­tem of Ukraine has been un­der­go­ing rap­id and sub­stan­tial de­vel­op­ments over the last years res­ult­ing its top rank­ing in Europe. The study has been able to es­tab­lish the norm­at­ive and in­sti­tu­tion­al frame­works of sys­tem, as well as the re­stric­ted but cru­cial role of crim­in­al law with­in its bound­ar­ies, to trace its evol­u­tion and fur­ther de­vel­op­ments.

In the cur­rent phase, the study fo­cuses on an as­sess­ment of the crim­in­al law pro­vi­sions. We have been able to es­tab­lish sev­er­al prob­lem­at­ic areas con­nec­ted to the ef­fi­cient func­tion­ing of the le­gis­la­tion as well as a ne­ces­sity to care­fully ex­am­ine the at­tempt to im­ple­ment al­most all the Bud­apest Con­ven­tion on Cy­ber­crime “CIA” of­fences with­in a single art­icle of the Pen­al Code. This phase of the re­search will be fol­lowed by a com­par­at­ive leg­al ana­lys­is of the re­spect­ive ef­forts of se­lec­ted EU states to re­spond to the crimes in ques­tion, the res­ults of which would in par­tic­u­lar provide in­sight on pos­sible solu­tions of prob­lems.