The concept of “bullishing” in Ukrainian legislation: problems of definition and law enforcement

Abstract

Problem setting. On June 6, 2024, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Amendments to Certain Laws of Ukraine on the Prevention of Violence and the Elimination of Cruelty to Children” № 3793-ИХ. The consequence of this regulatory legal act was the removal of the concept of “bullying” from Article 1 of the Law of Ukraine “On Education”. Instead, the term “bullying” was included in the Law of Ukraine “On the Protection of Childhood”. So, now the definition of the concept of “bullying” at the legal level is contained in the Code of Ukraine on Administrative Offenses and in the Law of Ukraine “On the Protection of Childhood”. It should be noted that in international legal documents and in national legislation, a child is considered a person under the age of eighteen. This means that, given the age of the students, which may go beyond the concept of “minor” or “child”, that is, over 18 years old, the definition of the concept of “bullying”, which is enshrined in the legislation, is obviously imperfect, since its subject composition does not include adults studying in educational institutions. Such imperfection has negative legal consequences, since in the event of establishing the fact of bullying with the participation of an adult person a member of the staff of an educational institution, it makes it impossible to bring him to administrative responsibility. That is why the definition of this term needs to be improved and included in Article 1 of the Law of Ukraine “On Education”. Analysis of recent researches and publications Bullying as a social phenomenon is thoroughly covered in the works of such foreign and Ukrainian scientists as H. Leimann, D. Olweus, E. Roland, A. Barlit, A. Kvasha, K. Ye. Nazarchuk, M. V. Zelenska, M. D. Vasilyeva, etc. In recent years, legal experts have been engaged in the issues of combating and preventing bullying, in particular, O. Ivanii, I. Lubenetsi, O. V. Lutsiv, I. G. Bukhtiyarova, M. V. Prykhodko, O. G. Strelchenko, etc. Their scientific achievements have expanded the understanding of this socially dangerous act and contributed to its deeper understanding in the legal sphere. At the same time, recent changes in Ukrainian legislation give grounds for a critical view of them and create the basis for a separate study of the issue of the causal relationship between terminology and law enforcement. The purpose of this article is improving the definition of the concept of «bullying» based on the analysis of scientific works and modern national legislation. Article’s main body. Bullying is manifested in the aggressive behavior of one person or a group of people towards another person – a child or an adult. This is accompanied by constant psychological and physical pressure. A person is systematically teased, made fun of, spoiled, gossiped about, published personal information and photos on social networks, boycotted, intimidated and even beaten. As has historically been the case, it is generally accepted that bullying is widespread in school children’s groups. But, studying at a university, you can also encounter bullying from classmates or other participants in the educational process. The Code of Administrative Offenses regulates the administrative liability of participants in bullying in the form of fines and corrective labor. Administrative liability for bullying (bullying) in Ukraine occurs if the actions of participants in the educational process do not show signs of a crime, the liability for which is provided for by the Criminal Code of Ukraine. The paradox is that the concept of “bullying”, which is enshrined in the Code of Administrative Offenses, is such that it does not directly cover students aged 18 to 23 and older. For unknown reasons, this age category of education seekers was overlooked by the legislator and was not included in the definition, as a result of which adult students do not fall under the scope of this Code. Therefore, it is impossible to use a regulatory document that determines the actions of an educational institution in the event of bullying. However, participants in the educational process in higher education institutions also include persons who have reached the age of majority and can also be both bullies and victims of bullying. Therefore, due to the existing gap in the legislation, it is not considered possible to bring adult students, cadets, postgraduates, etc. to administrative responsibility. Conclusions and prospects for the development. Based on the above and in order to eliminate the legal uncertainty that exists in the legislation due to its imperfection and inconsistency, Part 1 of Article 173-4 of the Code of Administrative Offenses shall be worded as follows: “bullying is an act (action or inaction) of participants in the educational process, which consists in psychological, physical, economic, sexual violence, including with the use of electronic communications, committed against a minor or underage person (students, (pupils)) or an adult (a higher education graduate) and (or) by such persons against other participants in the educational process, as a result of which harm could have been or has been caused to the mental or physical health of the victim.” We believe that the inclusion of subjects such as adult students in the concept of “bullying” contained in the Code of Administrative Offenses is extremely important, since in practice, the problem of the mechanism for bringing them to administrative responsibility will finally be resolved. In addition, we propose to amend the Law of Ukraine “On Education” using the concept of bullying formulated above. In our opinion, it is important that the definition of the term “bullying” is not contained in a by-law of the Ministry of Education and Science, but in a special educational law.