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DOI: https://doi.org/10.34069/AI/2023.62.02.28
How to Cite:
Borovyk, A., Tkachenko, I., Danylevska, Y., & Pavelkiv, S. (2023). Public official as a victim of criminal assault: comparative
approach. Amazonia Investiga, 12(62), 282-292. https://doi.org/10.34069/AI/2023.62.02.28
Public official as a victim of criminal assault: comparative approach
Державний службовець як потерпілий від злочинного нападу: порівняльний підхід
Received: February 5, 2023 Accepted: March 20, 2023
Written by:
Andrii Borovyk1
https://orcid.org/0000-0003-1834-404X
PUBLONS: Web of Science ResearcherID: GQZ-1183-2022
Iryna Tkachenko2
https://orcid.org/0000-0002-0144-0708
PUBLONS: Web of Science ResearcherID: HZI-1971-2023
Yuliia Danylevska3
https://orcid.org/0000-0002-1893-8473
PUBLONS: Web of Science ResearcherID: ABF-2691-2021
Serhii Pavelkiv4
https://orcid.org/0009-0005-0009-7396
PUBLONS: Web of Science ResearcherID: HZJ-8302-2023
Abstract
This research paper aims to analyze criminal
liability for assaulting law enforcement agents in
different jurisdictions. A comparative approach
is used to examine relevant criminal law
provisions of several countries, including the
United States, England, Germany, Canada, and
Ukraine. The methodology combines statistical
methods and comparative research to provide a
detailed and comprehensive analysis. The most
important findings indicate that some countries
protect both public officials and law enforcement
agents from illegal attacks, while others have a
special liability regime for assaulting or
threatening police officers only. In particular, it
is argued that the Ukrainian approach is more
balanced compared to other jurisdictions.
Overall, the document provides a complete and
detailed insight into criminal liability for
assaulting law enforcement agents in various
parts of the world.
1
Candidate of Legal Sciences, Associate Professor, Vice-Rector for Scientific Work, Academician, Stepan Demianchuk International
University of Economics and humanities (Rivne, Ukraine).
2
Candidate of Legal Sciences, Lecturer of Criminal Law Department, National Academy of Internal Affairs (Kyiv, Ukraine).
3
Candidate of Legal Sciences, Senior Researcher, Head of Doctoral Studies of the Donetsk State University of Internal Affairs
(Kropivnitskiy, Ukraine).
4
Candidate of Juridical Sciences, Associate Professor of the Department of Civil and Legal Disciplines, Academician Stepan,
Demianchuk International University of Economics and humanities (Rivne, Ukraine).
Borovyk, A., Tkachenko, I., Danylevska, Y., Pavelkiv, S. / Volume 12 - Issue 62: 282-292 / February, 2023
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Key words: criminal offense, criminal liability,
authority of government bodies, assault,
compensation for damage caused by criminal
offense, victim.
Introduction
Law enforcement officials are the embodiment of
the state itself; they perform crucial functions for
the wellbeing of the whole population at different
levels of governance. Law enforcement agents
are usually at the frontline of any criminal justice
system. They are first to respond to a crime and
are charged with the duty of keeping the public
safe. Police officers and other law enforcement
agents are usually the first ones to respond to acts
of violence, such as murders, burglaries and other
illegal acts – thus, it is reasonable to expect that
their life and personal safety should be protected
by the state as a priority.
This general rule applies virtually to any world
jurisdiction with an established law enforcement
system. Thus, assaults against peace officers
(policemen) are taken extremely seriously by the
state and society at large. The likely rationale
here is that attacking a public servant is an attack
against the state itself. Some might perceive
attacking a police officer as an attack on the
safety of any given community.
Since officials have to routinely make important
policy decisions as part of their duty, it means
some of their decisions can become very
unpopular. It also means that they could find
themselves a primary target for threats of
violence and even physical attacks. In response,
various lawmakers around the world have
acknowledged this unique type of danger and
passed a separate statute to address assault on a
public official.
Under the current law, sentences reflect the
seriousness of crime in order to have a deterrent
effect in the future. Thus, jail terms are often
imposed for these crimes.
A public official becomes offense victim in those
cases, when there is an encroachment on his life,
health, property, other legally protected rights,
the authority of the agency he represents, in
connection with the fact that he can issue orders
to citizens. Also, public official receives the so-
called “common victim” status without any
special protection (California Legislature,
2022a).
However, there is a strict distinction between a
public official and a police officer and, to a less
degree, distinction between a police officer and a
peace officer. The national crime statistics
demonstrate that there are far less assaults and
threats against public officials (both appointed
and elected), when compared to law enforcement
agents. Thus, our research will primarily focus on
the legal status of a law enforcement agent
(police officer) as a victim of certain violent
crimes in the following sections of the paper.
The goal of this research is to reveal and compare
criminal law provisions in several jurisdictions
concerning protection of law enforcement
officials from criminal assaults and threats.
Methodology
The following research methods have been used
extensively while working on the paper.
The comparative law method, which has become
the key one for the purposes of this paper,
enabled the authors to research criminal liability
regime for assaulting a public official (law
enforcement agent) in various jurisdictions and
also to compare various liability models. Overall,
the comparative method has been used actively
in criminal law scholarship recently (Minchenko
et al., 2021; Vozniuk et al., 2021).
The system-structural method has been used to
describe applicable criminal statutes and their
structural interactions within national legal
systems. Rulings by various national courts also
helped to elaborate on the system of national
criminal law with regard to protecting police
officials from criminal assaults.
The observation method allowed to identify
legislative trends throughout the world with
regard to decriminalization of the offenses
discussed and strengthening of the freedom of
speech guarantees. The observation method has
also revealed several blank areas in assault-
related statutory framework required for future
academic research.
Finally, the statistical method of collecting and
summarizing legally relevant information was
also used in the text of the paper with the purpose
of illustrating how laws against criminal assaults
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are formulated and practically operate in various
jurisdictions.
Overall, the chosen combination of research
methods has proved to be effective since it has
allowed to conduct an in-depth comparative
analysis, while also allowing the formulation of
the author's conclusive remarks and
observations.
Literature Review
Scholars from various legal systems have
actively researched issues of criminal liability for
attacking or threatening a public official. Such
approach makes good sense, since public
authorities sometimes make unpopular decisions
and thus officials can become victims of illegal
actions at any moment.
Several authors of this research paper have also
published on the issue (Tkachenko, 2022a;
Borovyk, 2022b). In particular, in one of the
papers it has been argued that the legal status of
victims in the Criminal Code of Ukraine is
significantly different from their status in the
Criminal Procedure Code of Ukraine. However,
the provisions of the Criminal Code and the
Criminal Procedure Code of Ukraine should be
unified in matters of the category of persons who
are recognized as victims, as well as the infliction
of harm on them or the threat of such harm. Also,
as the authors stated, in both Codes, only natural
and legal persons should be recognized as crime
victims (Tkachenko, 2022b).
In his PhD in law degree thesis “Understanding
Assaults against Police Officers: A Study of
Conflict Escalation in Police Encounters with the
Public” L. Johnson focuses “on the impact of the
police role and the informal rules of the
‘occupational police culture’ on the risk of
conflict escalation”. The study explores the
importance of cultural talk as a way of
demonstrating the police role. It also reveals the
means and tools in which officers approach
future similar incidents. (Johnson, 2019). Thus,
this study provides some empirical foundations
for criminal liability framework with respect to
protecting law enforcement officials from
assaults.
American commentators J. Shjarback &
E. Maguire have conducted a detailed study of
violence against American police by examining
nonfatal assaults against officers. Using monthly
data from the Federal Bureau of Investigation’s
(FBI) Law Enforcement Officers Killed and
Assaulted (LEOKA) reports for the years 2010 to
2016, the authors have used extensive data and
in-depth analysis to compare trends in the
number of injurious and noninjuries assaults on
police officers in the United States (Shjarback &
Maguire 2021).
Overall, examining relevant academic sources,
we have reached a conclusion that in most cases
legal commentators concentrate their analyses
either on assaults committed by or against
national police officers, while paying far less
research attention to the protection of elected and
appointed public officials by means of criminal
law.
As a side remark, literature review is an
important integrated element of any legal
research (Vozniuk et al., 2022). Without
understanding previous groundwork,
foundations of any given issue it is impossible to
elaborate on novel conclusions,
recommendations and effective changes to
current legislation.
Results and Discussion
In the following paragraphs of the paper, we will
explore criminal law provisions in several world
jurisdictions, which detail the criminal law status
of public officials in general, and law
enforcement agents in particular, as potential
victims of assaults. We will start with the U.S.
federal and state criminal law provisions.
A. United States of America
Assaulting a public official and, even more so, a
police officer is, unfortunately, hardly an
extraordinary act of violence in the United States.
Unfortunately. With aggressive clashes between
various demonstrators and police forces,
including the recent George Floyd mass protests,
there have been assaults and killings on both
sides. Here are some statistical numbers.
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Figure 1. Police officers killed in the line of duty in the United States of America.
Source: Hutchinson, B. (2020). Police officers killed surge 28% this year and some point to civil unrest and
those looking to exploit it. ABC News. URL: https://abcnews.go.com/US/police-officers-killed-surge-28-
year-point-civil/story?id=71773405.
Being a federal state, the United States recognize
assault and other illegal actions against public
officials as a crime both on a federal and state
levels. We will start with the federal legislative
approach.
Under 18 U.S. Code § 1114 “Protection of
officers and employees of the United States”,
whoever kills or attempts to kill any officer or
employee of the United States or of any agency
in any branch of the United States Government
(including any member of the uniformed
services) while such officer or employee is
engaged in or on account of the performance of
official duties, or any person assisting such an
officer or employee in the performance of such
duties or on account of that assistance, shall be
punished accordingly.
Secondly, 18 U.S. Code § 111 “Assaulting,
resisting, or impeding certain officers or
employees” provides that whoever (1) forcibly
assaults, resists, opposes, impedes, intimidates,
or interferes with any person designated in
section 1114 of this title while engaged in or on
account of the performance of official duties; or
(2) forcibly assaults or intimidates any person
who formerly served as a person designated in
section 1114 on account of the performance of
official duties during such person’s term of
service, shall, where the acts in violation of this
section constitute only simple assault, be fined
under this title or imprisoned not more than one
year, or both, and where such acts involve
physical contact with the victim of that assault or
the intent to commit another felony, be fined
under this title or imprisoned not more than 8
years, or both. This statute also provides for
enhanced penalty in in the commission of any
acts described in subsection (a), uses a deadly or
dangerous weapon or inflicts bodily injury –
such person shall be fined under this title or
imprisoned not more than 20 years, or both.
Thirdly, 18 U.S. Code § 112 “Protection of
foreign officials, official guests, and
internationally protected persons” provides for
special liability regime for attacking an official
representative of a foreign state: whoever
assaults, strikes, wounds, imprisons, or offers
violence to a foreign official, official guest, or
internationally protected person or makes any
other violent attack upon the person or liberty of
such person, or, if likely to endanger his person
or liberty, makes a violent attack upon his official
premises, private accommodation, or means of
transport or attempts to commit any of the
foregoing shall be fined under this title or
imprisoned not more than three years, or both.
Whoever during the commission of any such act
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uses a deadly or dangerous weapon, or inflicts
bodily injury, shall be fined under this title or
imprisoned not more than ten years, or both (Legal
Information Institute. (n.d.)).
As one might see from these three criminal
statutes, the United States take attacking both
national and foreign public officials seriously –
the severe sanctions speak for themselves.
Moreover, there is extraterritorial jurisdiction
over the conduct prohibited by such provisions.
The conclusion: protecting public officials in the
U.S. is a positive practice while it is yet another
indicator of the long-established
overcriminalization policy, which heavily relies
on severe sanctions even for minor offenses.
Now to the state level, with California Penal
Code serving as a role model for the purposes of
state level research.
The crime of “assault on a public official” is
described under California Penal Code 217.1(a),
which imposes more serious penalties compared
to a simple assault as a routine misdemeanor.
California Penal Code 217.1(a) provides a
definition for assault on a public official:
“Anyone who commits any assault upon the
President or Vice President of the United States,
the Governor of any state, judge, commissioner,
judicial officer, or any state holding elective
office, mayor, city council member, county
supervisor, sheriff, district attorney, prosecutor,
public defender, chief of police, peace officer,
any juror in any local, state, or federal court, or
their immediate family in retaliation for, or to
prevent the performance of their duties”
(Legislative Counsel of California, 2019). As one
might see from this definition, the term “public
official” is quite broad and includes official
representatives at three levels of government –
federal, state and local. The term “public official”
includes a wide range of people who are
employed by the federal or state government, but
the most common victims in California include:
current or former prosecutors or public
defenders; judges, commissioners, or other bench
officers; city council members; county
supervisors; sheriff or peace officers (State and
Federal Criminal Defense, 2022). It should be
noted that a public official under PC 217.1(a)
includes not only California government
officials, but also officials of the United States
government – thus an “all-inclusive” approach
with respect to victims.
Under the New York Penal Code, Sections
120.08 through 120.18 provide for various types
and threats (menaces) against public officials,
judges and police officers in particular. For
example, Section 120.08 of the Code provides: a
person is guilty of assault on a peace officer,
police officer, fireman or emergency medical
services professional when, with intent to prevent
a peace officer, police officer, a fireman,
including a fireman acting as a paramedic or
emergency medical technician administering
first aid in the course of performance of duty as
such fireman, or an emergency medical service
paramedic or emergency medical service
technician, from performing a lawful duty, he
causes serious physical injury to such peace
officer, police officer, fireman, paramedic or
technician.
Furthermore, Section 120.09 states that a person
is guilty of assault on a judge when, with intent
to cause serious physical injury and prevent a
judge from performing official judicial duties, he
or she causes serious physical injury to such
judge (New York Penal Law, 1965).
As one might see, there are similar approaches to
protecting public officials both in the states of
California and New York, with some minor
differences.
B. Canada
As in most other world jurisdictions, in Canada
assaulting a Peace Officer has always been a
serious crime – such offense can result in a prison
sentence of up to 14 years. Assaulting a peace
officer often involves using violence, sometimes
in aggravated forms, against a public servant or
public official. Thus, the prosecution might seek
a jail sentence if convicted.
The charge of assaulting a peace officer,
provided by s.270 (1) of the Criminal Code, is not
limited to police officers only. The law also
protects “prison guards, sheriffs, duty sheriffs,
sheriff's officers, fish and game officers, bylaw
officers, justices of the peace, court bailiffs,
members of the Canadian Forces, customs
agents, pilots in command of aircraft and public
officials such as mayors, wardens and reeves”
(Government of Canad, n/d).
Current Canadian criminal law recognizes three
major types of assaulting a peace officer.
1. Assault in the line of duty. If a person
assaults a peace officer in the performance
of their job or if one assaults a person who is
helping that officer to carry out their duties,
such person could face criminal charges.
The Crown must prove the offender was
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aware of the fact that the victim was not only
a peace officer but that they were acting in
an official capacity.
2. Resisting arrest. Criminal charges can also
be brought if a person uses force to resist
arrest or if such person assaults a person in
an attempt to prevent a peace officer from
making a lawful arrest or detaining someone
else. An arrest can be made by both a peace
officer or a private citizen.
3. Preventing the execution of duty. This
criminal law provision protects those who
enforce a civil law matter, such as an
eviction. If a person assaults someone
engaged in the lawful execution of a seizure
of lands or goods, he or she could face
assaulting a peace officer charges. A person
can also be criminally charged if an assault
occurs when trying to reclaim something
that has been seized (Criminal Code Help,
2022)
Unlike in the United States, Canadian legislator
does not specifically provide for criminal
liability for assaulting public officials, other than
peace officers. Thus, public officials do not
constitute a distinct group of victims of assault,
intimidation or threats. Instead, criminal assault
in Canada is divided into four different
categories: simple assault, assault with a weapon,
assault causing bodily harm and aggravated
assault (SainiLaw (n/d)). Sexual assault,
including its aggravated form, constitutes a
distinctive type of assault.
Once again, with reference to the above
discussed material, we would like to stress on the
importance of comparative method in modern
legal research (Movchan et al., 2022).
C. England
Assaulting a constable in the execution of his
duty is a statutory offence of aggravated assault
in England and Wales, Scotland, Northern
Ireland, and Hong Kong (a former British
colony).
Since Great Britain does not have codified
criminal legislation, like in continental European
jurisdictions, assault crimes have to be located in
various specific Acts passed by the Parliament.
As in many other world jurisdictions, in England
the statutes on assaulting a police officer
(constable) have evolved from the general assault
provisions. Also, we could not identify a separate
provision on assaulting or menacing a public
official, which means that they are probably
protected at the same level as ordinary citizens.
Common assault occurs when a person inflicts
violence on someone else or makes them think
they are going to be attacked. It does not have to
involve physical violence. For example,
threatening words or a raised fist is enough for
the crime to have been committed provided the
victim thinks that they are about to be attacked.
Contemptuous spitting at someone is yet another
example.
Actual bodily harm (ABH) means the assault
has caused some hurt or injury to the victim.
“Physical injury does not need to be serious or
permanent but must be more than “trifling” or
“transient”, which means it must at least cause
minor injuries or pain or discomfort.
Psychological harm can also be covered by this
offence, but this must be more than just fear or
anxiety”.
Grievous bodily harm (GBH) means the assault
has caused serious physical harm. It does not
have to be permanent or dangerous. For example,
“a broken bone would amount to GBH – in some
cases a broken bone might lead to permanent
disability but, in others, it might heal without
leaving any long-term effects. GBH can also
include psychiatric injury or someone passing on
an infection, for example through sexual
activity” (Sentencing Council (n/d)).
The offense becomes much more serious, if the
victim of the assault is an emergency worker.
This includes police, prison officers, custody
officers, fire service personnel, search and rescue
services and paramedics (The Crown Prosecution
Service, 2018). One might see legal similarities
here between the Canadian and British
approaches.
Some relevant statistics behind this Act. In 2019,
there has been a lower proportion of males in the
affected group of Assault of an Emergency
Worker offenders relative to the comparison
group of all Common Assault and Battery
offenders. Of the 11,091 offenders proceeded
against for Assault of an Emergency Worker,
70.7% were male and 29.3% female, compared
to 84.8% male and 15.2% female in the
comparison group of Common Assault and
Battery offenders.
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Table 1.
Assaults on Emergency Workers in England in 2019.
Assault of an
Emergency Worker
Common Assault and
Battery
Total
Number
11,091
44,733
Males
Number
7,839
37,946
Males
%
70,7
84,8
Females
Number
3,252
6,787
Females
%
29,3
15,2
Source: HM Government. (2021).
In particular, in England and Wales Section 89(1)
of the Police Act 1996 provides: “any person
who assaults a constable in the execution of his
duty, or a person assisting a constable in the
execution of his duty, shall be guilty of an
offence and liable on summary conviction to
imprisonment for a term not exceeding six
months or to a fine not exceeding level 5 on the
standard scale, or to both” (The National
Archives, 1996).
The constable must be acting “in the execution of
his duty” for the purposes of charging this
offense. If one exceeds the limits of his duty (e.g.,
acts unlawfully in assaulting the Defendant), the
elements of this offence are absent. As a practical
matter, the Defendant does not actually have to
be aware that the person, who has been assaulted,
was a constable.
D. Germany
The following example demonstrates that
assaulting a public official (police officer in
particular) is a serious offense in Germany.
According to the news reports, in February of
2022 “German police arrested two suspects for
the murder of two officers shot dead during a
traffic stop after launching a massive manhunt.
The two officers, a man and a woman, were shot
dead during a routine traffic check on a road near
Kusel, a town not far from Kaiserslautern in the
German state of Rhineland-Palatinate”. Upon
arrival, reinforcements were unable to help the
officers. The shooters had been apprehended
some time later. As the interior minister Nancy
Faeser stated with reference to that shocking
crime of violence, “regardless of the motive, this
crime is reminiscent of an execution and shows
that the police risk their lives for our security
every day” (Euronews, 2022).
One more example.The German government had
previously condemned illegal incidents on 2023
New Year’s Eve in which emergency response
teams were attacked, mostly with previously
banned fireworks. “In Berlin, the fire service
counted at least 38 such attacks and said 15
officers were injured. Police said they had 18
injured officers” (Voanews, 2022).
Two sections of the German Penal Code deal
directly with assault offenses against law
enforcement agents and officials of similar
duties.
Section 114 “Assault of enforcement officers” of
the German Penal Code further provides that
“whoever assaults a public official or a soldier in
the Federal Armed Forces charged with
enforcing laws, statutory instruments,
judgments, judicial decisions or directions in the
performance of an official act incurs a penalty of
imprisonment for a term of between three months
and five years”.
Furthermore, Section 115 “Resistance to or
assault of persons equal to enforcement officers”
provides as follows: “1) Sections 113 and 114
apply accordingly to protect persons who are
vested with the powers and duties of police
officers or who are investigators of the public
prosecution service without being public
officials; 2) Sections 113 and 114 apply
accordingly to protect persons who are called
upon to assist in the performance of the official
act; 3) Section 113 also applies to persons who,
in the case of accidents, a common danger or an
emergency, use force or the threat of force to
hinder the members of the fire brigade, the civil
protection service, one of the rescue services or
emergency medical services or a hospital
emergency department who are rendering
assistance. Persons who assault those who are
rendering assistance in such situations incur a
penalty pursuant to section 114” (German
Federal Ministry of Justice and Consumer
Protection, 1998).
As a brief conclusive remark, the German
legislator, in its typical precise manner, has
construed statutory assault offenses against
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public officials and military officials while
performing their duties.
E. Poland
Yet another example from law enforcement
practice. In April of 2021, a Polish court
acquitted a prominent senior citizen activist of
charges that she insulted and assaulted a police
officer who tried to detain her during an anti-
government protest. The activist, Katarzyna
Augustynek, “has participated in many street
demonstrations against the right-wing
government, and has had several run-ins with
police. According to Polish media reports, the
judge at the District Court in Warsaw said
evidence indicated that Augustynek had been
protesting peacefully. Gazeta Wyborcza daily
said on its website the judge stressed that the
constitution guarantees the right to protest. The
judge also argued that there was no justification
for the way police had treated Augustynek, who
resisted detention during the protest” (AP News,
2021).
Similar to American legal approach and in
contrast to European models, Polish legislator
recognizes a crime of assaulting the President or
foreign public official.
In particular, Article 135 provides: “1) whoever
commits an active assault on the President of the
Republic of Poland shall be subject to the penalty
of the deprivation of liberty for a term of between
3 months and 5 years (§ 1); 2) whoever insults
the President of the Republic of Poland in public
shall be subject to the penalty of the deprivation
of liberty for up to 3 years (§ 2)”.
According to article 136: Ҥ1. Whoever on the
territory of the Republic of Poland, commits an
active assault upon the head of a foreign State,
upon the head of the diplomatic representation of
a foreign State, who is accredited to the Republic
of Poland, or upon a person enjoying similar
protection by virtue of law, treaty or generally
accepted international custom, shall be subject to
the penalty of deprivation of liberty for a term of
between 3 months and 5 years; § 2. Whoever on
the territory of the Republic of Poland, commits
an active assault upon a person belonging to the
diplomatic personnel of a mission of a foreign
country to Poland, or on a consular official of a
foreign country in connection with the
performance of their official duties” (Parliament
of Poland, 1997).
Thus, apart from special protection regime for
police officers, the Criminal Code of Poland
directly recognizes the need to protect those in
public office from assaults and insults.
As Polish commentators Julia Kuczur and
Tomasz Kuczur write, crimes related to the
attack on a public official in the 1997 Criminal
Act were included in Chapter XXIX of the Penal
Code. They add: “Criminalization of acts
directed against the state is dictated by the
legislator’s intention that the penal law of 1997
is to safeguard the values presented in the
Constitution, such as the rule of law, and also
aims to protect the constitutional bodies of the
Republic of Poland. The key element for their
separation is the conjunctive fulfilment of two
conditions, that is, they must at the same time be
constitutional bodies, i.e. at least those
mentioned in the constitution and government
bodies of the Republic of Poland” (Kuczur &
Kuczur, 2019).
F. Ukraine
Finally, we will turn to the status of public
official as a victim of criminal assault and
physical threat in Ukraine. We will start with the
official legislative provisions.
Article 346 of the 2001 Criminal Code of
Ukraine “Threats or violence against a statesman
or a public figure” provides (official text of the
law): “threats of murder, impairment of health,
destruction or impairment of property,
kidnapping or confinement made in respect of the
President of Ukraine, the Chairman of the
Verkhovna Rada (Parliament) of Ukraine, a
National Deputy (Member of Parliament) of
Ukraine, the Prime Minister of Ukraine, a
member of Cabinet of Ministers of Ukraine, the
Chairman or a judge of the Constitutional Court
of Ukraine or the Supreme Court of Ukraine or
High Specialized Courts of Ukraine, the
Procurator General of Ukraine, the Human
Rights Commissioner of the Verkhovna Rada of
Ukraine, the Head of the Accounting Chamber,
the Chairman of the National Bank of Ukraine,
or a leader of a political party, committed in
relation to their government or public activity, -
shall be punishable by imprisonment for a term
up to five years”.
As construed by the national legislator, the crime
provided for in Art. 346, consists in: threat (part
1); beatings; committing other violent acts (Part
2); causing bodily harm – nonessential, moderate
(part 2) or severe (part 3).
Liability under part 1 of Art. 346 comes for the
threat of murder, causing harm to health,
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destruction or damage to property, kidnapping or
deprivation of liberty the public officials
specified in it. The threat of harm to health occurs
when the victim is threatened with beatings,
causing bodily harm of any degree of severity,
including through the use of narcotics,
psychotropic, poisonous, potent substances,
electric current, etc. (Melnyk & Havronyuk,
2018).
Furthermore, Art. 347 of the Criminal Code of
Ukraine provides liability for “willful destruction
or impairment of the property owned by a law
enforcement officer or his/her close relatives, in
connection with his/her official duties”. Such
illegal actions “shall be punishable by a fine of
50 to 100 tax-free minimum incomes, or arrest
for a term up to six months, or imprisonment for
a term up to five years”.
Art. 348 further provides, in its part, “that murder
or attempted murder of a law enforcement officer
or his/her close relatives in connection with
his/her official duties, and also of a member of a
community formation for the protection of public
order, or a military servant in connection with
their activities related to the protection of public
order, – shall be punishable by imprisonment for
a term of nine to fifteen years, or life
imprisonment”.
Art. 349 provides that “taking or holding of a
representative of public authorities, or a law
enforcement officer, or their close relatives as
hostages for the purpose of making a public or
any other institution, business or organization, or
any official to take or refrain from any actions as
a condition for release of the hostage, - shall be
punishable by imprisonment for a term of eight
to fifteen years”.
Finally, Art. 350 forbids “threats of murder,
grave bodily injury or destruction or impairment
of property by a generally dangerous method,
made in respect of an official or his close
relatives or a citizen who performs his/her public
duty, where these acts are committed to preclude
the activities of the official or the citizen who
performs his/her public duty, or to change their
nature in the interests of the persons who makes
such threats” (Verkhovna Rada of Ukraine,
2010).
Comparing these legislative provisions with
those of other countries reveals that Ukrainian
criminal regulatory mode has a balanced
approach to protecting both public officials and
law enforcement agents from assault offenses.
Both life, liberty, health and property of a public
officials are protected by the Criminal Code
provisions.
The country’s Supreme Court has made several
precedential rulings addressing the elements of
such crimes. First, the Court has ruled, that fact
that a person is unaware of the performance of
specific official duties by a police officer does
not exclude the possible presence of the elements
of crime under Art. 348 of the Criminal Code of
Ukraine in the actions of the accused person
(Court of Appeal of Ukraine. (n.d.)). Second,
attack on the life of a law enforcement officer
(Art. 348 of the Criminal Code) is considered
completed from the moment of the attempt on the
victim’s life, regardless of the occurrence of any
consequences. When distinguishing between
encroachment on the life of a law enforcement
officer (Art. 348 of the Criminal Code) and a
threat to kill a law enforcement officer in
connection with the performance of official
duties (Art. 345 of the Criminal Code), it should
be taken into account that the threat is not
characterized by actions, which are directly
aimed at the intentional killing of the victim. A
shot from a rifle in the direction of a law
enforcement officer indicates that the accused
has begun to implement the intention to kill
police officers, and his actions are subject to
criminal liability under Art. 348 of the Criminal
Code (Post de Advokat, 2022).
The national criminal law doctrine also analyses
various legal aspects of assault-related offenses
at length. In particular, V. Chaika has extensively
explored a wide spectrum of such issues while
working on his PhD thesis (Chaika, 2012). It is
worth adding that Ukrainian legal scholars have
been actively studying foreign experience to
criminal law regulation in their treatises
(Movchan et al., 2021).
Other Ukrainian commentators mention that
assault offenses against public officials are aimed
at harming social relations that provide authority
and normal operation of the entire system of law
enforcement agencies. As a justification for the
specified provisions, they note that when an
offense is committed against an individual law
enforcement officer or his close relative, the
guilty person does not encroach on an individual
person (employee), but rather on the existing
system of government bodies called to ensure
law and order in the state (Gladkov, 2016). This
makes good sense since law enforcement
function does not belong to any singe official but
rather to the state (or government) itself.
Volume 12 - Issue 62
/ February 2023
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Conclusions
Our study has been based on multijurisdictional
approach to understanding the elements of
assault and threat crimes against public officials
in general and law enforcement agents in
particular in several world jurisdictions. The
active employment of comparative research
method has allowed to analyze relevant criminal
law provisions of several jurisdictions (United
States, England, Germany, Canada, Poland,
Ukraine etc.). In particular, it has been
demonstrated that while some states protect both
public officials (like Presidents and other top
officials) and law enforcement agents from
illegal attacks, other countries provide special
liability regime for assaulting or threatening
police officers only. It is argued that legislative
approaches similar to the Ukrainian one are more
balanced, when compared to other jurisdictions.
Reference to several cases of assaults and threats
against public officials allowed to demonstrate
that this is not a theoretical but rather a
practically significant issue. Also, further
research in the discussed direction is both
theoretically and practically significant – it will
allow to elaborate on new improved models of
criminal liability for offenses against public
officials and law enforcement agents, in
particular.
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