The concept of subsidiary subjectivity of civil society institutions in criminological policy

Abstract

The article substantiates the concept of subsidiary subjectivity of civil society institutions as a positively defined fourth type in the classification of subjects of criminological policy. The relevance of the research is determined by the structural transformation of civil society institutions’ participation in countering crime in Ukraine under conditions of the full-scale armed aggression of the russian federation since 2022 and the simultaneous launch of negotiations on Ukraine’s accession to the European Union. The tripartite classification of subjects of criminological policy (formation / implementation / assistance), proposed in the peaceful context of 2021, does not cover the full functional scope in which civil society institutions temporarily assume the criminological functions of the state under conditions of its objective inability to perform them effectively. The purpose of the article is to substantiate the concept of subsidiary subjectivity as an autonomous theoretical construct that supplements the tripartite framework without abolishing it. The methodological basis combines structural-functional, formal-legal and comparative-legal methods; the key methodological step is the analogical inversion of the principle of subsidiarity from the vertically competence-based plane of EU constitutive law (Article 5(3) of the Treaty on European Union) and the functionally obligational plane of Ukrainian civil law (Article 619 of the Civil Code of Ukraine) into the horizontally functional plane of relations between the state and civil society institutions. The analogical step is defended by three independent arguments — the structural kinship of the three constructions, the doctrinal precedent of sussidiarietà orizzontale in Article 118.4 of the Italian Constitution as amended in 2001, and the functional relevance of the problem. Research results. A working definition of the concept is proposed and four operational features are formulated — conditionality of activation, temporality, supplementarity (not duplication), and implicit reversibility. A demarcation is performed in relation to partial conceptual predecessors — M. Zhdan, D. Siclari, I. Danyliuk, M. Vikhliaiev and Yu. Pylypenko, P. De Hert and I. Wieczorek — each of whom makes a respectable partial step, while the complete synthesis of the horizontal modality with criminological-policy subject matter and with the category of subjectivity is undertaken for the first time. Conclusions. The concept of subsidiary subjectivity constitutes a positively defined fourth type in the classification of subjects of criminological policy, does not reduce either to an extension of the existing types or to a direct borrowing of the European principle of subsidiarity, and forms a methodological framework for further research on the functional regimes of civil society institutions’ participation in criminological policy.