Foreign model of counteraction to the crimes encroaching on office activity and the personality of representatives of the law enforcement security unit

G.A. Agaev, Professor, Department of Criminal Law, St. Petersburg University of the Ministry of Internal Affairs of Russia
E.I. Puidak

The article presents the author’s attempt at scientific understanding of the causes of criminalization and the model of counteraction to crimes that encroach on official activities and the identity of representatives of the law enforcement force unit in the legislation of foreign countries. The author comes to the conclusion that in the criminal laws of foreign countries in most cases there are no special chapters, sections, sections, paragraphs regulating responsibility for crimes that infringe on the personality and official activity of representatives of the law enforcement power unit. At the same time, it is emphasized that the criminal legislation of foreign countries contains a criminal law prohibition of committing an offense against authorized persons of state bodies similar to Russian ones. At the same time, depending on the objective social factors and the level of legislative techniques inherent in one or another historical period, only the legislative forms of expressing this prohibition change, however, the expediency of its existence is not questioned by any state, and therefore they take their place in criminal codes of foreign countries.

Keywords: crimes, criminal law, Criminal Code, encroachment, law enforcement power unit.

 

For a correct understanding of the criminal law, overcoming the difficulties of its interpretation, as well as for solving other problems of a criminal law nature, a comparative analysis of the legislation of Russia with the laws of foreign countries is important. As practice shows, an appeal to the legislative experience of foreign countries makes it possible to optimize the domestic legal system in accordance with the positive experience of the legal systems of other states. As the well-known French lawyer M. Ansel rightly wrote, the study of foreign law “opens up new horizons for a lawyer, allows him to know better the right of his country, because the specific features of this right are especially clearly revealed in comparison with other systems. Comparison of the right rule can arm a lawyer with ideas and arguments that cannot be obtained even with a very good knowledge of only one’s own right ”[3, p. 38]. What has been said above allows us to make only one conclusion: it is necessary to arm yourself with knowledge and try to understand how these issues were resolved and resolved in the criminal legislation of foreign countries, since the experience of other states can be very useful for improving Russian legislation in this field. Immediately, we note that in the Russian Federation, as in many other countries, the protection of public relations related to official activities and the personality of government officials is given top priority. This is natural, since in order to exist, any organized society requires a management apparatus (army, police, court), whose subjects the authorities take under increased protection, incl. criminal law by setting standards for the protection of state servants. It can be assumed that henceforth the increased attention will be paid to the problem of protecting the official activities and the identity of representatives of the law enforcement security unit both in Russia and abroad. With regard to legislative regulation of criminal liability, the boundaries of punishability for harassment of official activities and the identity of representatives of the law enforcement power unit in Russia and abroad sometimes differ from each other. There are many reasons for this. One of the main reasons is that in many foreign countries there is no codified legislation. For example, the legislation of England on crimes is not a typical case law for Russia. Its unusualness is manifested in the absence of codified legislation in all branches of law, incl. criminal, resulting in the classification of the crime occurs at the discretion of the person who produces it, and does not depend on the object of criminal encroachment or its degree of importance, nor on the severity of the crime due to the absence of such concepts in theory and in legislation [2, c . 207].

Unfortunately, this has a direct bearing on the problem of protecting the life and health of a representative of the power bloc. We emphasize once again that in the legislation of England there is no special chapter (section) serving the interests of representatives of the power unit. It is very important to note that the criminal law protection of the lives and health of these persons is provided by the Murder Act of 1957, the Act of Infanticide of 1938, and the Murder Act of 1965 [13], according to which the death penalty for murder was replaced by life imprisonment. In accordance with these laws, murder is divided into three types: simple murder, for example, in cases of the absence of “evil premeditation”, grave murder, when the subject of the crime intended to cause either death or serious bodily harm to another person, or childicide. For the criminalization of any kind of murder, it is enough to have consequences in the form of death.

It should be particularly noted that the courts are extremely negative in the cases of the use of violence by criminals against law enforcement officers in the performance of their official duties. For example, if as a result of the actions of the accused, the employee who made the arrest died, then, according to literary sources, even a distant causal connection between the actions of the accused and the death of the employee is sufficient for responsibility for simple murder, and guilt determination is generally not required. This is a weighty reason for concluding that, despite the fact that the criminal law of England does not distinguish such a special victim as a law enforcement officer, however, an encroachment on the life or health of the said person is a serious crime. Very significant in this regard are the sanctions of the relevant legal norm. Serious murder is punishable by life imprisonment. Based on the foregoing, it can be concluded that, despite numerous objective problems, the health of a representative of the power block is effectively protected by the rules providing for crimes against life in the lawmaking process in England.

Similarly, responsibility is regulated for encroachment on official activities and the identity of representatives of the authorities of various departments by US law. One of the specific features of US criminal law is that there is no unified criminal law system in this country. That is why the US criminal law is characterized by a variety of sources and regulations, including: 1) at the federal level – the US Code, the United States Provisional Penal Code of 1962, and a number of statutory laws, among which the Organized Crime Control Act is one of the most significant. ; 2) state law, which is mainly represented by state criminal codes.

As the researchers rightly point out, the absence of a unified system of criminal legislation predetermined the absence of a unified system for constructing its particular part. Each of the listed regulatory acts has its own system of special part that is not related to others [2, p. 246]. It is worth emphasizing that the American criminal law doctrine and legislation, unlike the Russian one, also do not single out an independent corpus delicti, which provides for responsibility for the encroachment on the life and health of a law enforcement security officer. At the same time, most states’ criminal legislation provides for cases of the intentional deprivation of life of certain persons related to first-degree murder: the President, other statesmen, firefighters, witnesses summoned to court, children, and also some other persons, including and law enforcement officers. For example, in Art. 125.27 of the New York State Penal Code states: “A person is guilty of a grave murder of the first degree, if with the intention to cause death to another person it causes death to that person, and the victim was a police officer who was killed during the course of his official duties, and the accused he knew or should have reasonably believed that the victim was a police officer. ”… is punished with the death penalty (of course, where the death penalty as a type of criminal punishment remains today) [10, p. 253]. This approach convincingly demonstrates that American criminal law has taken the path of maintaining a rather harsh approach to punishing the death of a police officer. In our opinion, such legislative regulation of responsibility and punishment for the death of a police officer in the performance of his official duties is justified and meets the degree of public danger that the crimes in question represent.

A similar picture is taking shape in French law. The current Criminal Code of France was adopted in 1992 (it began to operate from March 1, 1994, replacing the Napoleon Code of 1810) [4]. French criminal law is also characterized by a variety of sources and regulations. According to the testimony of prominent French jurists J. and A.-M. Largé, the criminal law of France as a whole has about 15,000 separate criminal law prohibitions [12, p. 240-241]. Acts related to the encroachment on the life of judges, lawyers, officials, who are representatives of state power in connection with the exercise of their official powers, are prohibited by Art. 221-1 of the Criminal Code of France. Analyzing art. 221-1 of the Criminal Code of France (“simple” murder), it can be stated that the presented norm has a significant similarity with part 1 of art. 105 of the Criminal Code. However, unlike Russian law, the perpetrator of such an act is punishable by 30 years of criminal imprisonment. From our point of view, such an approach seems to be fully justified and corresponds to the degree of public danger that the killing of a representative of the authorities has.

From an analysis of the provisions of the 1998 Criminal Code of the Federal Republic of Germany, it is revealed that it also lacks rules on actions that are traditional for Russian criminal law, for example, crimes against a representative of the power bloc. However, this does not mean that the criminal law of Germany does not protect the interests of the security bloc. It is known that the system of the Special Part of the Criminal Code of Germany is built on the principle of the priority of the interests of the state and society over the interests of the individual. The location of the sections of the Special Part system depends on the importance of the object of criminal law protection. Under the criminal law of Germany, the punishment for the act against life is enshrined in Section. 16, providing for three types of murder: murder – paragraph 211 of the Criminal Code, simple murder – paragraph 212 of the Criminal Code, and a less serious case of murder – paragraph 222 of the Criminal Code. Responsibility for the killing of a representative of the power unit refers to a simple form. Punishment for such an act is punishable by imprisonment of at least 5 years. In severe cases, punishment can be increased to life imprisonment [9, p. 208].

In contrast to the Russian criminal law, as an independent composition, no encroachment on the life or health of a law enforcement representative in such countries as the Netherlands, Belgium, Austria, Switzerland, etc. is singled out. Apparently, the logic of the foreign legislator is such that the dignity of any person, regardless of position, is of particular importance, and these benefits must be protected equally.

Unlike the laws of England, the United States, France [4], the Federal Republic of Germany [9], Sweden [11] and others, the criminal law of Bulgaria [7] contains a rather wide list of crimes that encroach on the interests of a representative of the authorities of various departments. The encroachment on the life and health of these persons is contained in the chapter “Crimes against the person”. Disposition of Art. 116 (2) reads: “The murder of a judge, prosecutor, investigator, or person from the Ministry of Internal Affairs in the performance of or in connection with the performance of their duties or functions is punished.” In Art. 131 (2) of the second section (“Personal injury”) states that “causing bodily injury to a judge, prosecutor, investigator or person from the Ministry of Internal Affairs while performing or in connection with the performance of their duties or functions is punished …”. In Part 1 of Art. 143 of the Criminal Code of the Republic of Belarus provides: “Forcing another to commit or not to commit or to undergo something against his will, using violence, threats or abusing power, is punished.”. In par. 3 proclaimed: “If in the cases provided for in the previous paragraph, coercion is committed against a judge, prosecutor, investigator or person from the Ministry of Internal Affairs during the performance or in connection with the performance of their official duties or functions, punishment.”.

Criminal legislation of Bulgaria highlights in sect. I (“Crimes against the order of governance”) in ch. VIII “Crimes against the activities of state bodies and public organizations
22 sttsii ”Art. 269, according to which “The use of violence or threat in order to force a representative of the authorities P to commit or not to perform any action, ^ included in his official duties, is punished …” [7].

In par. 2 shall be punished “The same act provided for in the previous paragraph, if it is committed against a member of the public.” It immediately catches the eye that, unlike in Russian criminal law, the Bulgarian legislation places an equal sign among all the victims. A characteristic feature of the Bulgarian criminal law is that in Art. 116, 131, 143 of the Criminal Code as victims, the judges, the prosecutor, the investigator or persons from the Ministry of Internal Affairs are indicated. It seems that such a detailed legislative regulation of responsibility for the murder of a judge, prosecutor, investigator or a person from the Ministry of Internal Affairs in the performance of or in connection with the performance of official duties or functions is fully justified in view of the absolute equality of victims in the field of professional status.

The Criminal Code of the Russian Federation, on the contrary, depending on the status of the victims, provides for three independent actions and the composition of encroachments on the lives of these persons in connection with the performance of their official duties or functions (Articles 277, 295, 317 of the Criminal Code) [8]. As G.A. rightly points out in his work. Agayev, such a legislative approach is difficult to consider effective and expedient, since all three of the encroachments have a number of common features. All three crimes, moreover, encroach on the same generic object — the interests of state power, the single additional immediate object — the life of the individual; have the same characteristics of the objective and subjective side, as well as the subject of the crime, have the same sanctions, and the difference lies mainly in the immediate object and in the circle of victims [1, p. 148]. In this regard, the specified author offers all categories of victims in the crimes under Art. Art. 277, 295, 317 of the Criminal Code of the Russian Federation, combine the concept of a representative of the authorities (legislative, judicial, executive, as well as municipal) and work out one of the three existing norms – Art. 277, calling it “The killing of a representative of the authorities” [1, p. 148].

We agree with the above position of the author, since the use of a large number of special rules is inefficient and impractical and, moreover, creates problems associated with the distinction between general, special and competing rules. Therefore, in our opinion, such a statement of the question can significantly facilitate the solution of many complex issues of qualifying crimes. In particular, it will not be necessary to decide in each case whether the activity of law enforcement officers was to protect public order or ensure public safety, which is necessary to qualify the actions of the perpetrator under art. 317 of the Criminal Code.

Along with the above, it should be recalled that the legislative wording of Art. 116 of the Criminal Code of Bulgaria. The objective side of art. 116 of the Criminal Code of Bulgaria formulated
as follows: “The murder of a judge, prosecutor, investigator, or person from the Ministry of the Interior in the course of or in connection with their official duties or functions.” In our opinion, such legislative wording deserves attention and is more justified than the “encroachment on life” used in Art. 277, 295, 317 of the Criminal Code, as The last interpretation causes a dual interpretation in the scientific literature:

– attempt on life;

– murder, as an alternative to the attempt on life.

In our opinion, a gross violation of the rules of legislative technology is that the term “encroachment” provides for a formal-material construction, in connection with which practitioners have difficulty in determining the end of the criminal encroachment on the lives of these individuals.

The Polish Penal Code also lacks legislative recognition of a crime against a management procedure as an object of criminal law protection. The protection of normal administrative functions is ensured by securing a chapter establishing responsibility for crimes against the activities of state institutions, as well as territorial self-government bodies (Ch. ХХ1Х). It is this chapter that contains the norms ensuring the protection of the immunity of these officials. So, in paragraph 1 of Art. 222 of the Criminal Code of Poland enshrined [6]:

“Violation of the physical integrity of a public official or his assistant during or in connection with the performance of his official duties shall be punished …”
In Art. 223 of the same chapter states: “Who, acting together and in collusion with other persons or using a firearm, knife or other similar dangerous object or paralyzing agent, makes an active attack on a government official or his assistant during or in connection with duties, shall be punished. “[6].

Thus, we see that the Criminal Code of Poland did not specifically set out rules aimed at protecting the life, health, honor and dignity of an employee of the security bloc, which, in our opinion, is hardly logical, especially since actions containing a lesser degree of public danger – for example , the theft of state awards – are protected by an independent standard. On the contrary, the life and health of an employee of a power unit as an object of special increased protection is not protected by an independent norm.

The Criminal Code of the People’s Republic of China, which entered into force on 1 October 1997, consists of 10 chapters and contains 350 articles. Each of them contains a description of the characteristics of a specific crime [5]. Ch. VI is dedicated to crimes against public order. Public order is interpreted very widely, so this chapter includes a variety of compositions. It contains paragraph I “Crimes against the order of government”. Art. 277 paragraph I of the Criminal Code of the People’s Republic of China establishes responsibility for the use of violence, threats, hindering the execution of official duties by employees of state organizations in accordance with the law
new, leading to serious consequences. It should be noted that the Criminal Code of the People’s Republic of China, similarly to the criminal code of the Russian Federation, quite fully and consistently reflects in its norms the main areas of struggle
with crime in public order.

Based on the foregoing, it can be concluded that in most cases in foreign criminal laws there are no special chapters (parts, sections, paragraphs) governing liability for crimes against management procedures. Of course, the author believes that the absence of a special chapter in the criminal laws of some foreign countries, a rule that criminalizes the encroachment on the life and health of representatives of the power bloc, should be regarded as a significant gap in the criminal legislation of these countries. On the other hand, it probably speaks of different criteria (grounds) for structuring regulatory acts. Nevertheless, comparing the regulation of criminal responsibility, the boundaries of punishability for encroachment on official activities and the identity of representatives of the law enforcement force unit abroad, it can be noted that the acts reflected in ch. 32 of the Criminal Code, still have a place in the codes of foreign countries. It should be especially emphasized that the life and health of the authorities, which are incl. and law enforcement officers are the object of special protection in countries that represent the Roman-German legal family (Germany, France, Holland, Belgium, Austria, Switzerland, etc.).

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Source: Bulletin of the St. Petersburg University of the Ministry of Internal Affairs of Russia No. 1 (77) January – March 2018

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