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DOI: https://doi.org/10.34069/AI/2022.56.08.7
How to Cite:
Romanov, M., Sergiienko, N., Yevdokymov, D., Odnolko, I., & Panimash, Y. (2022). The essence and content of illegal obstruction
of the organization or holding meetings, rallies, marches and demonstrations and forensic aspects of its analysis. Amazonia
Investiga, 11(56), 66-72. https://doi.org/10.34069/AI/2022.56.08.7
The essence and content of illegal obstruction of the organization or
holding meetings, rallies, marches and demonstrations and forensic
aspects of its analysis
Сутність та зміст незаконного перешкоджання організації або проведенню зборів,
мітингів, походів і демонстрацій та криміналістичні аспекти його аналізу
Received: September 9, 2022 Accepted: October 11, 2022
Written by:
Maksym Romanov25
https://orcid.org/0000-0003-2443-7744
Nataliia Sergiienko26
https://orcid.org/0000-0002-6681-5961
Dmytro Yevdokymov27
https://orcid.org/0000-0003-3572-1636
Inna Odnolko28
https://orcid.org/0000-0002-4896-4728
Yuliia Panimash29
https://orcid.org/0000-0002-5337-6613
Abstract
The aim of the article lies in improving the
institution of pre-trial investigation in particular
and criminal liability for committing illegal
obstruction of the organization or holding of
meetings, rallies, marches and demonstrations in
general. The object of the analysis is the social
relations that arise in the process of organizing or
holding meetings, rallies, marches and
demonstrations by citizens of Ukraine.
Methodology. Taking into account the outlined
research object, it is considered appropriate to
use the following methods: analysis, logical,
interpretation, system analyzes, hermeneutic,
generalization. Research results. The article,
based on the examination of the scientific views
and the relevant legal basis, outlines the essence
and content of illegal obstruction of the
organization or holding of meetings, rallies,
marches and demonstrations and the forensic
aspects of its analysis. Practical implementation.
The content of obstruction is aimed at
25
Police major, Research officer of the research laboratory on problems of prevention of criminal offenses of Faculty № 3 of the
Donetsk State University of Internal Affairs (Kropyvnytskyi, Ukraine).
26
PhD in Law, Associate Professor at the Department of Private Law of the Faculty of Law and International Relations of Borys
Grinchenko Kyiv University (Kyiv, Ukraine).
27
PhD in Law, Associate Professor of the Police Law Department of the National Academy of Internal Affairs (Kyiv, Ukraine).
28
PhD in Law, Associate Professor, Leading Specialist of National Agency of Ukraine for finding, tracing and management of assets
derived from corruption and other crimes (Kyiv, Ukraine).
29
Candidate of Pedagogical Sciences, Associate Professor of Chernobyl Heroes Fire Safety Institute of the National University of
Civil Defense of Ukraine (Ukraine).
Romanov, M., Sergiienko, N., Yevdokymov, D., Odnolko, I., Panimash, Y. / Volume 11 - Issue 56: 66-72 / August, 2022
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impossibility of the realization of the relevant
rights, which is characterized by the intention,
understanding by the person, who does this, all
the features of the activity, its focus and
anticipation of a positive result.
Value/originality. These characteristics are
treated as elements of a criminal offence through
the prism of provisions and rules of criminal law
and play a main or auxiliary role both in the
qualification of such an act and during the
conduct of a pre-trial investigation depending on
objective circumstances and certainty in the
legislation of Ukraine.
Keywords: criminal prosecution, forensics,
obstruction, peaceful assembly, pre-trial
investigation.
Introduction
The rights and freedoms of an individual and a
citizen determine the content and orientation of
the public policy and fundamentally regulate the
functioning of all State processes, and that is
why, even under the conditions of Covid-19
pandemic, which threatens the lives and health of
people, the stable functioning of economic
mechanisms, and the social existence of society
(Kharytonov et al., 2021, p. 158) and full-scale
military operations in connection with the
Russian army’s invasion on the territory of
independent and sovereign Ukrainian lands, they
remain a priority.
Modernity demonstrates that even the right to
assemble peacefully, unarmed, can not only be a
tool for influencing public policy and individual
politicians and statesmen, but can also serve as a
means of countering the invasion of occupation
troops (in particular, the most famous example is
the Kherson public, when citizens prevented
enemies from entering the city by holding
meeting).
Within the proposed object of the article, we will
consider certain aspects of pre-trial investigation
of illegal obstruction of the organization or
holding meetings, rallies, marches and
demonstrations and the forensic aspects of its
analysis, since its significant public resonance
cause the need for additional scientific
investigations and studies, which may affect the
formation of a positive trend towards the
disclosure of the specified facts of committing
criminal offenses in the future.
It should be noted that the number of recorded
criminal proceedings under this article of the
Criminal Code of Ukraine is insignificant in the
general structure of crime in Ukraine (in 2013 –
1; in 2014 – 39; in 2015 – 21; in 2016 – 12; in
2017 – 179; in 2018 – 14; in 2019 – 4; in 2020 –
3; in 2021 and during 2022 – 0) (Attorney
General’s Office, 2022), but has a significant
public resonance.
On the other hand, the dynamics of the process
of disclosure of relevant criminal proceedings is
of particular concern, since more than 273 facts
have been recorded in the last 10 years, whereas
only 43 persons were served with suspicion (this
indicator is critically low).
At the same time, through the prism of the forms
of completion of the corresponding pre-trial
investigation, it should be noted that only 22
proceedings were referred to the court during this
period, while 42 were terminated, which
undoubtedly indicates the high complexity of
conducting pre-trial investigation of the
corresponding category of criminal offenses and
requires significant scientific analysis of
problems in the main criminological directions.
Methodology
Considering the stated object of the Article, the
use of the analysis approach makes it possible to
investigate the scholars’ thoughts on the
institution of criminal liability for obstructing the
organization or holding peaceful assemblies.
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Logical method helps to highlight the main
tendencies and regularities of implementing
people’s right to peaceful meetings at all phases
of the society development, as well as to establish
the meaning and essence of illegal obstruction as
a form of activity of a person (several persons) in
the context of committing a corresponding
criminal offense.
The method of interpretation is used in the
clarification of legal instruments constituting the
institution of bringing to criminal liability for
obstructing the organization and holding
peaceful assemblies.
System analyzes method makes it possible to
systematize the core outcomes and to determine
the procedure for making them/
Hermeneutic approach is used for equating the
scientists’ opinion about the investigated issue.
The generalization method makes it possible to
develop suggestions for eliminating the
identified flaws and solving the stated problem.
Literature Review
The issue of the essence and content of illegal
obstruction of the organization or holding
meetings, rallies, marches and demonstrations
has not been studied in detail. Instead, some
problematic issues of the functioning of the
institution of peaceful assemblies within various
branches of law (administrative, constitutional,
as well as theory and philosophy of law) are quite
popular. Among the most global studies that
essentially demonstrate the category of
“organization and holding peaceful assembly”, a
significant contribution was made by such
researchers as Filoretova (“Peaceful assembly as
an object of administrative courts protection”)
(2021), Melnyk (“The right to freedom of
peaceful assembly: theory and practice”) (2015);
Shcarnega (“Proceedings for the right to peaceful
assembly”) (2016), Sereda (“The right to
peaceful assembly: theoretical, practical and
comparative aspects”) (2019), Zahorodniuk
(“The constitutional right of citizens to
assemblies, rallies, marches, and demonstrations:
questions of theory and practice”) (2021) and
other.
At the same time, it should be emphasized that
these researchers devote a significant part of their
works to the topics directly related to law
enforcement. However, criminal and legal
institutions for the protection of the right to
assemble peacefully, unarmed, namely the
development of forensic methods of conducting
pre-trial investigation of illegal obstruction of the
organization or holding meetings, rallies,
marches and demonstrations remain outside the
field attention of scientists.
In our opinion, taking into account the popularity
of the implementation of the corresponding right
by the citizens of Ukraine, its significance and
functionality, as well as its fundamental role in
the defense of state interests, territorial integrity
and sovereignty of Ukraine in the conditions of a
full-scale invasion of Russia, it is extremely
important to work out the main ways and
methods of improving the corresponding
institution, in particular, by the development of
the understanding of the essential (conceptual
and terminological) categories.
Thus, the aim of the article lies in improving the
institution of pre-trial investigation in particular
and criminal liability for committing illegal
obstruction of the organization or holding
meetings, rallies, marches and demonstrations in
general by analyzing the scientific views of the
researchers, the results of law enforcement, the
relevant regulatory and legal basis and other
important foundations within the science of
criminology.
The object of the analysis is the social relations
that arise in the process of organizing or holding
meetings, rallies, marches and demonstrations by
citizens of Ukraine.
Results and Discussion
The outlined directions, in the context of
providing a scientific characterization of the
main theoretical and applied aspects of the
formation of the forensic methodology of
conducting a pre-trial investigation of illegal
obstruction of the organization or the holding of
meetings, rallies, marches and demonstrations,
require a thorough analysis of the conceptual and
categorical apparatus through the prism of
Ukrainian legislation and law enforcement
practice, that is why we propose to begin with an
understanding of the term “obstruction” in the
legal context in general and through the prism of
the object of a scientific article, in particular.
Ermolaeva-Zadorozhna (2017), researching
issues related to the obstruction of the official
activities of law enforcement officers, draws
attention to the fact that the unifying feature of
this social phenomenon is that it covers
numerous specific types of socially dangerous
illegal behavior (acts and activities), related to
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illegal influence on the proper performance of
official duties by law enforcement officers.
Accordingly, attention should be paid to the fact
that a similar set of features can be applied in the
context of a pre-trial investigation of unlawful
obstruction of the organization and conduct of a
peaceful assembly, since this socio-legal act is
defined as illegal and criminally punishable; such
acts are directed by the subject in relation to the
expected result not only in relation to the
organization of such assembly, but also to
prevent the exercise of social will in the form of
meetings, rallies or other forms of peaceful
assembly.
The above emphasizes the fact that contrary to
the will of one or more persons, the absence of a
legal prohibition to carry out such actions and the
availability of all legal tools for the realization of
the corresponding constitutional right, the
meaning of obstruction is aimed at impossibility
of the realization of the corresponding rights,
characterized by intent, the understanding by the
person that he (she) commits all the
accompanying all the associated characteristics
of his (her) activity, its focus and expectations for
a positive result of such activity. These
characteristics are interpreted as elements of the
composition of a criminal offense and, depending
on the objective circumstances and certainty in
the legislation of Ukraine play a basic or
auxiliary role both in the qualification of such an
act and during the conduct of a pre-trial
investigation directly.
It is important, in our opinion, to pay attention to
the fact that hindering the organization or holding
of meetings, rallies, marches and demonstrations
is of an illegal nature. This characteristic is
understood by us in two aspects: narrow one
(outlined above) lies in the fact that the content
and essence of the illegality of the activity of the
subject of a criminal offense is determined by
objective factors (for example, in the form of
abuse of official position or use of physical
violence), while broad one (proposed by the
scientific community) is that the legality of
meetings, rallies, marches and demonstrations,
which is obstructed, is the basis for bringing a
person to criminal responsibility, since if the
conduct was prohibited, the activity to prevent it
automatically acquires legal features.
Similarly, the Constitution of Ukraine (Law of
Ukraine No. 254k/96-VR, 1996) interprets the
mentioned situation, enshrining that restrictions
on the exercise of this right may be established
by a court in accordance with the law and only in
the interests of national security and public order,
with the purpose of preventing disturbances or
crimes, protecting the health of the population, or
protecting the rights and freedoms of other
persons. Accordingly, the circumstances
determining the specified types of gatherings as
illegal (those that were legally restricted) and the
actions aimed at preventing such gatherings are
mutually exclusive.
The composition of the criminal offense that
entails responsibility contains a number of large
but substantively crowded categories such as
“organization” and “holding” meetings, rallies,
marches and demonstrations. At the same time,
in addition to the fact that the composition of the
corresponding criminal offense does not include
responsibility for similar actions in relation to
other forms of realization of the constitutional
right to assemble peacefully, unarmed, in our
opinion, organization and implementation
processes should be described, noting the likely
ways to discourage them.
The Constitutional Court of Ukraine (2001)
significantly expanded by its decision the
understanding of some basic categories and
aspects, namely, regarding the need for advance
notification (period from the day of such
notification to the date of holding the mass
meeting) to the executive authorities or local self-
government through the organizers of mass
assembles. Besides, the court emphasized that
“the period of advance notice should be sufficient
for executive authorities or local self-government
to determine to what extent the holding of such
gatherings complies with the law”, as well as
“definition of specific advance notice dates,
taking into account specifics of the forms
peaceful assemblies, their mass, place, time, etc.,
are the subject of legislative regulation”. This
distinction, which appears in the legislation of
Ukraine, serves as a direct indication of one of
the ways of committing this criminal offense,
reflecting the meaning of such obstruction. The
commission of this act by an official of a local
self-government body, whose competence
overlaps with the authority to decide, in
accordance with the law, issues regarding
holding of meetings, rallies, and demonstrations,
sports, entertainment and other mass events;
exercising control over the provision of public
safety and order, reflects the fact of using official
position and functional responsibilities, rights
and powers aimed at ensuring the
implementation of the corresponding right,
namely its initial stage – carrying out
organizational actions regarding the further
holding of the meeting.
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Among the most widespread methods of
precisely this type of obstruction to the holding
of peaceful assemblies may be: failure to accept
(not register) a report of a peaceful assembly; late
notification of the ban on holding a peaceful
assembly; lack of motivation for the ban on such
gathering, etc.
Previously highlighted interpretations of the
essence and content of various forms of holding
peaceful assemblies, taking into account the
division defined by the legislation of Ukraine,
enable a preliminary analysis of the methods and
means that can be used to prevent holding of
assemblies, including their specific features.
Taking into account the identity of the concepts
“meeting” and “assembly”, which are
meaningfully identical in essence and are
literally interpreted as the temporary presence of
two or more persons in any public or other place
not prohibited by the legislation of Ukraine for
the purpose of publicly demonstrating their
views on the issues important to society, as well
as the relevance (with the exception of certain
features of the content of the meeting) of the
concept of a rally as a form of peaceful assembly
(Drozd et al., 2022). It should be noted that the
meaning of preventing an assembly (meeting) or
rally lies in, for the most part: simultaneous
holding of a certain event by the decision of other
persons in the same place that was planned for
the holding of a peaceful meeting; intimidation
and destructive motivation of the participants of
meetings (assemblies) or rallies with the aim of
influencing the turnout; preliminary creation of
artificial circumstances, which will give signs of
public danger and threat to State and national
interests to such a peaceful assembly; integration
into the circle of persons, who gather peacefully,
as provocateurs (including those who possess
weapons or objects similar to them) with the aim
of creating real grounds for law enforcement
agencies to prosecute them for related criminal
offenses.
Besides, it should be noted that the proposed
forms of hindering organizing or holding
meetings, rallies, marches and demonstrations
clearly reflect the content of such activity and
form a basic idea about it, while hindering
marches and demonstrations can be done in
similar ways, taking into account certain features
that are proposed to be explored later.
Since we previously noted that the march is a
form of peaceful assembly aimed to publicly
demonstrate the view of one or more persons
regarding important social problems, the vector
of State policy, has a route and is carried out by
the way of movement of participants from the
initial to the endpoint (Romanov, 2021), it is
logical to assume that one of the most widespread
ways of preventing such a peaceful assembly as
a march can be the creation of obstacles on the
route of movement, or knowingly improperly
laying such a route by the persons responsible for
it (for example, impassable terrain).
A demonstration is a visual reproduction of any
elements, objects, images, and other
manifestations during a peaceful assembly (in the
form of meetings, rallies, marches, etc.),
including with the help of video, sound
amplification, and any other equipment. That is,
demonstration, as a form of expressing view
during a meeting, aims to interpret the oral
position on a problematic social issue, for
example, by demonstrating posters or other
symbolic objects, as well as holding public
performances, etc. (Drozd et al., 2022).
Accordingly, obstruction of the demonstration, in
our opinion, mainly lies in the measures taken to
eliminate the tools of the demonstration (posters,
costumes for performances, sound-amplifying
and video-reproducing equipment and other
props that enable the demonstration of something
and are the main tool of such a process).
Based on the analysis of 43 criminal proceedings
for unlawful interference with an organization or
holding meetings, rallies, marches and
demonstrations, we can state that the most
common ways of committing the relevant
offense are:
forceful obstruction of holding (60% of cases),
which is associated with the forcible seizure of
sound amplification equipment, posters, symbols
(about 60%), often – physical influence on
persons, aimed at forcing them to leave the
meeting and refuse to implement the relevant
rights (a little more than 40%);
obstruction of the organization of a peaceful
assembly in the preparatory stage, since such
activity is more often associated with the use of
official position by relevant officials (in 40% of
cases in general); taking into account the
significant public resonance and attention of
society to the realization of the right to assemble
peacefully, any actions are carried out in this
way, can be documented, and the persons
involved in such interference can be identified;
interesting is the fact of illegal obstruction to the
preparation of a peaceful assembly with the use
of official powers (typical of the times of
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Ukrainian statehood in the period of 2010 –
2014); for example, by placing at the place of the
peaceful assembly the dimensional structures or
simultaneous holding of another event on the
initiative of self-government bodies or State
authorities.
Thus, it should be noted that the content and
essence of illegal obstruction of the organization
or holding meetings, rallies, marches and
demonstrations lies in the implementation of a
certain activity or omission in relation to the
process of orderly and unimpeded
implementation of the constitutional right to
assemble peacefully aimed at intentionally
causing its non-realization.
Conclusions
Thus, on the basis of the research, we stress on
the need to comprehensively improve the
functioning of the institution of criminal liability
for illegal obstruction of the organization or
holding meetings, rallies, marches and
demonstrations. The analysis of the essence and
content of illegal obstruction of the specified
types of exercise of the right to assemble
peacefully, unarmed, made it possible to justify a
number of important scientific and theoretical
provisions, the most significant, in our opinion,
among which are the following:
1. The content of obstruction is aimed at
impossibility of the realization of the
relevant rights, which is characterized by the
intention, understanding by the person, who
does this, all the features of the activity, its
focus and anticipation of a positive result.
These characteristics are interpreted as the
elements of the composition of a criminal
offense and, depending on the objective
circumstances and certainty in the
legislation of Ukraine, play a main or
auxiliary role both in the qualification of
such an act and during the conduct of a pre-
trial investigation.
2. The decisive factor in defining the illegality
of obstruction is the legality of the peaceful
assembly itself. We understand this in two
aspects: narrow one (outlined above) lies in
the fact that the content and essence of the
illegality of the activity of the subject of a
criminal offense is determined by objective
factors (for example, in the form of abuse of
official position or use of physical violence),
while broad one (proposed by the scientific
community) is that the legality of meetings,
rallies, marches and demonstrations, which
is obstructed, is the basis for bringing a
person to criminal responsibility, since if the
conduct was prohibited, the activity to
prevent it automatically acquires legal
features.
3. Clearly negative presence in the list of forms
of criminal offence of specific types of
peaceful assembly, which significantly
reduces the possibility of bringing to
criminal liability those guilty of obstructing
the exercise of the right to assemble
peacefully in other, more progressive forms
(for example, car races). The proposal for
improvement lies in the fact that the
composition of the corresponding article of
the Criminal Code of Ukraine should be
expanded by defining the object specifically
illegal obstruction of the right to peaceful
assembly.
Besides, given the gravity of the committed
criminal offense, as well as the importance and
high social significance of the institution of
peaceful assembly in Ukrainian society, it is
logical to increase criminal responsibility for the
specified act and divide its modalities and other
circumstances into a number of stable theoretical
and legal constructions (separate parts of the
article), which would not only add the necessary
additional penalties to the main ones, but greatly
simplify enforcement in general.
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