Вісник Харківського національного університету імені В. Н. Каразіна Серія: «Право» (Jun 2022)
Violent abuse of power or official authorities by a law enforcement officer (comparative analysis and problems of legislation improvement)
Abstract
Introduction. The article gives a criminal-legal characterization of the violent abuse of power or official authorities by a law enforcement officer. The importance of establishing criminal law signs of physical or mental violence in each case of such a criminal offense is indicated. It is concluded that the changes that were made to Article 365 of the Criminal Code of Ukraine cannot be considered successful. It is pointed out that the national criminal legislation cannot develop effectively if foreign experience in combating crime by criminal law means is not taken into account. The use of the comparative method in legal research is an important mean of improving the theory and practice of applying any legislation, including criminal law. Its only purpose should be to eliminate flaws in criminal legislation. Summary of the main research results. The paper provides a comparative legal analysis of national and foreign legislation on criminal responsibility for violent abuse of power and official authority. On this basis, it was concluded that it is necessary to introduce foreign experience in criminal law counteraction to violent abuse of power or official authority. According to the author, the provisions that should be introduced into national legislation are as follows: the subject of abuse of power or official authority should be any official, and not just a law enforcement officer; as a qualified element of this criminal offense, the commission of an excess with the use of physical violence or the threat of using such violence should be added; recognition of the inexpediency of indicating the infliction of bodily harm directly by excess of power or official authority; in the event of death, serious bodily injury or suicide of the victim, the actions of the perpetrator must be qualified under the relevant part of Art. 365 of the Criminal Code of Ukraine on the grounds of the onset of grave consequences; the motives and purpose of committing such a criminal offense should not affect the qualification, but should be taken into account when imposing criminal punishment on the perpetrators. The article analyzes the rulings of the Judicial Chamber for Criminal Cases of the Supreme Court of Ukraine, which determine the ratio of parts 1 and 2 of Article 365 of the Criminal Code of Ukraine on the specifics of qualifying forcible abuse of power or official authority and the need to establish the monetary equivalent of non-property damage in cases of such a criminal offense. The author proposes to change the approaches of judicial practice in the latter case. In preparing the article, general scientific and special methods were used. Thus, dogmatic and formal-legal methods were used in the analysis of the criminal law norm, which provides for criminal responsibility for violent abuse of power or official authority. The comparative method was applied when comparing the criminal legislation of Ukraine with the corresponding norms of the laws on criminal responsibility of other countries. A statistical method was used to study legal practice. Conclusions. The article draws scientifically based conclusions and offers author's recommendations for improving the current legislation on criminal responsibility for abuse of power or official authority by a law enforcement officer, namely: it is proposed to recognize all officials as the subject of this criminal offense; as a qualified element of this criminal offense, the commission of an excess with the use of physical violence or the threat of using such violence should be taken into account; it is not appropriate to indicate in the law directly to the infliction of bodily harm in excess of power or official authority; in the event of the death of the victim or the infliction of grievous bodily harm on him, the actions of the perpetrator must be qualified under the relevant part of Art. 365 of the Criminal Code of Ukraine on the grounds of the onset of grave consequences; he motives and purpose of committing such a criminal offense should not affect the qualification, but should be taken into account when imposing criminal punishment on the perpetrators; physical, mental and other non-property harm in case of violent abuse of power or official authority should not be assessed according to the rules for causing property damage (one hundred or more times the non-taxable minimum income of citizens). The need for a legislative definition of the concept of physical and mental violence is indicated.
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