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DOI: https://doi.org/10.34069/AI/2023.65.05.18
How to Cite:
Borovyk, A., Hrynkiv, O., Olieinikov, D., & Derevyanko, N. (2023). Obstruction of law enforcement and judiciary functions:
criminal offense in comparative dimension. Amazonia Investiga, 12(65), 185-195. https://doi.org/10.34069/AI/2023.65.05.18
Obstruction of law enforcement and judiciary functions:
criminal offense in comparative dimension
Перешкоджання правоохоронним та судовим функціям:
кримінальне правопорушення у порівняльному вимірі
Received: April 28, 2023 Accepted: June 2, 2023
Written by:
Andrii Borovyk1
https://orcid.org/0000-0003-1834-404X
PUBLONS: Web of Science ResearcherID: GQZ-1183-2022
Oleksandra Hrynkiv2
https://orcid.org/0000-0003-1002-7955
PUBLONS: Web of Science ResearcherID: IQV-8954-2023
Denys Olieinikov3
https://orcid.org/0000-0002-8515-5241
PUBLONS: Web of Science ResearcherID: IQR-8112-2023
Natalia Derevyanko4
https://orcid.org/0000-0002-4749-6782
PUBLONS: Web of Science ResearcherID: HGV-1655-2022
Abstract
The research paper addresses, via comparative
approach, issues of criminal liability for
obstruction of law enforcement and judicial
functions in several jurisdictions. It is argued that
the primary responsibility of law enforcement
officers is to safeguard the established social
interactions, as defined by the law, against
specific violations. They are tasked with
restoring the lawful position when individuals,
public interests, legal norms, or public order are
harmed.
Through the utilization of diverse academic
research techniques and methodological tools, a
comprehensive exploration of statutes related to
the obstruction of law enforcement across
different jurisdictions has been conducted.
In the concluding section of the paper, it is
underlined that obstruction of justice refers to the
intentional interference with the administration
of justice by seeking to hinder or influence an
ongoing legal process. It involves deliberately
impeding or influencing officially authorized
1
Candidate of legal sciences, associate professor, vice-rector for scientific work, Academician Stepan Demianchuk International
University of Economics and Humanities (Rivne, Ukraine).
2
Doctor of legal sciences, State Border Guard Service of Ukraine (Kyiv, Ukraine).
3
Candidate of legal sciences, professor of the special department of organizational and legal principles of state security, Yaroslav
Mudryi National Law University (Kharkiv, Ukraine).
4
Doctor of philosophy in the field of law, head of the department of criminal law and administrative law, Academician Stepan
Demyanchuk International University of Economics and Humanities (Rivne, Ukraine).
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procedures with the aim of preventing detection,
apprehension, or punishment of individuals
involved in illegal activities.
Key words: criminal offense, criminal liability,
crime investigation, justice, law enforcement
agency, obstruction, interference with activities.
Introduction
This research paper will discuss various
parameters of such crimes as obstruction of law
enforcement agencies and courts. Our study
reveals that such offense is committed in various
national jurisdictions. It corrupts national
judiciaries as well as law enforcement agencies.
Thus, by employing the comparative research
method, we research such criminal offense in a
global perspective.
Traditionally, law enforcement officials are the
embodiment of the state itself; they perform
critical functions for the wellbeing of the whole
population at different levels of governance. Law
enforcement agents usually operate at the
frontline of any criminal justice system (Borovyk
et al., 2023). Law enforcement actions and
programs are aimed at preventing the occurrence
of conditions and causes of potential or already
committed socially dangerous phenomena, while
stopping their development and liquidating the
negative consequences.
As summarized by one Ukrainian commentator,
the task of official activity of law enforcement
officers is the protection of public relations
enshrined in the legal provisions from specific
encroachments, restoration of the legal status in
case of damage to subjects of law, public
interests, law and order, prosecution of persons
who have committed offenses, ensuring law and
order and maintaining legality, as well as
ensuring the national security of state
(Yermolaeva-Zadorozhnya, 2017).
Protection of the rights of a natural or legal
person is carried out by applying publicly
established procedures. Being a protective tool of
the state, law enforcement activities influence
behavior of subjects of legal relations through the
use of permits, prescriptions, prohibitions,
control over their compliance and the
implementation of legal liability (Karapeichyk,
2012).
As a matter of key concept, an act is considered
obstruction of justice when it partially or
completely hinders the entire law enforcement
procedure, spanning from its initiation to its
conclusion. The obstructive conduct does not
necessarily need to yield specific outcomes, but
rather entails an intention to impede the lawful
process. Additionally, an act can be classified as
obstruction of justice if it is intentionally carried
out with the purpose of causing delays in legal
proceedings (Isra et al., 2017).
The purpose of the article is to discuss elements
of the ‘obstruction of justice’ offense in various
world jurisdictions and to demonstrate how it is
enforced. It will be argued that obstruction of
justice refers to the deliberate interference with
the proper functioning of the legal system, with
the intent to hinder or influence ongoing legal
proceedings. We will also elaborate that such
form of unlawful behavior can manifest itself in
various ways, including providing investigators
or law enforcement officials with false or
deceptive information; destroying, modifying, or
concealing evidence, failing to comply with a
court order etc.
Methodology
By employing a variety of academic research
techniques and methodological instruments, it
has become possible to extensively examine
obstruction of law enforcement statutes in
various jurisdictions, which address various
issues of liability for such offense. A well-chosen
combination of methods has allowed to
investigate the crime of law enforcement
obstruction from various standpoints.
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The comparative law method has been chosen as
the key one for the purposes of this study. It has
enabled the authors to research various aspects of
criminal liability for obstruction of justice in
several world jurisdictions and also to compare
various liability models. The comparative
method has been actively used in legal
scholarship (Minchenko et al., 2021; Movchan et
al., 2022). This might be a positive indicator of
further globalization developments.
Next, the method of systemic analyses was used
to comprehend the structure and elements of
various countries’ criminal law systems with
reference to liability mode for obstruction
offenses. In particular, using this method has
enabled the authors to clarify connection
between any given criminal law system and the
specific framework for obstruction offense
liability.
The observation method also made it possible to
identify legislative trends throughout the world
with regard to the offenses discussed while also
strengthening of the integrity and protection of
law enforcement agencies (and courts). The
observation method has also indicated the need
for further academic research in this evolving and
vitally important area of law.
Finally, the formal-dogmatic method has been
applied to analyze the external, normative forms
of obstruction offenses and to correctly interpret
specific legal provisions. This enabled to
comprehend key principles, which encompass
adoption of legislative acts and norms of both
international and national law.
Overall, the elaborated combination of research
methods has proved to be an effective one – it
enabled in-depth legal analyses while also
allowing to formulate novel conclusions and
observations.
One important point should be made here. For the
purposes of this study, we use the terms
“obstruction of law enforcement investigation”
and “obstruction of justice” as synonymous,
explaining essentially the same concept. After
all, our analyses has revealed that despite
somewhat different meanings and approaches to
this phenomenon in national criminal laws, the
core meaning of obstruction remains the same –
that is illegal intrusion into the due course of
official proceedings conducted by various law
enforcement agencies and courts.
Literature Review
A rather impressive body of academic literature
covers various aspects of criminal liability for
obstruction of justice, including its comparative
aspect. Both European and American scholars
have actively addressed these issues over the past
decades. Such close academic attention makes
good sense, since it is obvious that any country is
much interested in protecting the integrity and
transparency of its law enforcement and judiciary
systems. The wheels of justice and wheels of
policing have to rotate smoothly and deliver law
& order – this is one of the key principles of the
‘rule of law’ society.
American commentator E. Podgor is her research
paper on the issue explores the concept of
obstructing justice in the federal system from
three different perspectives: as a criminal act, as
a factor that can increase sentencing, and as a
basis for initiating judicial or presidential
impeachment. The paper presents a
comprehensive overview of the elements
involved in obstruction of justice crimes, the
legal challenges faced in court, and the parties
responsible for handling these matters. Podgor’s
analyses primarily focuses on the prosecutorial
practices employed in federal courts when
pursuing obstruction charges, highlighting how it
is sometimes used as a convenient offense that
can be easily proven in certain situations, but also
acknowledging the differences in other contexts,
such as impeachment inquiries (Podgor, 2021).
Another Western author, S. Green has dedicated
a separate chapter on the issues of illegal
interference in law enforcement business in his
highly regarded treatise on white collar crime.
Professor Green writes that the public’s
conflicting moral stance on white-collar crime,
particularly in relation to obstruction of justice,
is evident. Doubts have emerged regarding
whether the actions of defendants in high-profile
obstruction cases truly warrant criminal
treatment. The mentioned book chapter is a
comprehensive framework that can be
universally applied to assess both the statutory
approach to various types of criminal conduct
and the prosecution and sentencing of individual
cases. This framework aims to establish a
consistent theoretical basis for evaluating
obstruction offenses, allowing for a more
thorough analysis of their moral implications
(Green, 2007). Thus, one can observe in Green’s
research a very interesting combination of both
legal and moral grounds behind the obstruction
charges in any given white collar crime case.
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Based on the results of her monograph research,
I. Chub has introduced several proposals and
recommendations with the goal of the
improvement of certain criminal law provisions,
including a new version of Art. 343 of the
Criminal Code; a number of recommendations
have been put forward regarding the debatable
issues of qualification for intervention in the
activities of law enforcement agency and
executive service employees. In addition, while
relying on the research results, the treatise author
has formulated recommendations for the
Ukrainian judiciary (Chub, 2017).
It should be added that illegal interference with
the activities of law enforcement agents has been
actively discussed in Ukrainian legal scholarship
on the level of dissertations as well. This
underlines the importance of in-depth analyses of
such types of criminal behavior. For example,
one PhD candidate writes that the criminal law
concept of “interference in activity” follows
takes into account the following main points:
1) intervention in the activity can be manifested
only in active actions; 2) intervention can only
take place in relation to legitimate activities –
thus counteraction is illegal activity that cannot
be recognized as interference; 3) interference can
be expressed only in illegal behavior
(committing actions that are not permitted by
law); 4) only deliberate interventions can be
considered as deed. Doing acts that interfere with
the activities of someone, if the person is not was
aware of their socially dangerous nature, cannot
be assumed intervention; 5) finally, based on the
position of the Supreme Court of Ukraine, the
following actions should always be recognized as
intervention: persuasion, blackmail,
intimidation, threats, disclosure of statements or
information compromising the person,
resistance, violence, intentional destruction or
damage to property, encroachment on life
(Blazhivsky, 2010).
Overall, various issues of criminal liability for
obstruction-related offenses, including elements,
proof of guilt and sanctions, are quite actively
discussed in both civil law and case law
jurisdictions.
Results and Discussion
In the following pages of this research paper, we
will pursue the goal of interpreting the key
elements of criminal obstruction statutes in
several world jurisdictions. Such multi-
jurisdictional, comparative approach, as we
envision it, will allow to better comprehend how
national criminal law systems function and
develop and, more specifically, how various
national legislators protect their law enforcement
agencies and courts from various obstruction of
justice offenses.
Our analyses will be based on posing a specific
research question and then searching for an
answer to it.
Question 1. How is obstruction of justice
defined?
Obstruction of justice refers to the act of
interfering with the administration of justice,
typically by impeding or hindering the work of
law enforcement, investigators, or judicial
proceedings. It involves intentionally obstructing
or influencing the legal process in order to
prevent the discovery, apprehension, or
punishment of individuals involved in criminal
activity.
The widely recognized Merriam-Webster
Dictionary defines obstruction of justice as the
crime or act of willfully interfering with the
process of justice and law especially by
influencing, threatening, harming, or impeding a
witness, potential witness, juror, or judicial or
legal officer or by furnishing false information in
or otherwise impeding an investigation or legal
process (Merriam-Webster Dictionary (n/d)).
Another reference authority, the Black’s Law
Dictionary, defines this concept as “the
noncompliance with the legal system by
interfering with (1) the law administration or
procedures, (2) not fully disclosing information
or falsifying statements, and (3) inflicting
damage on an officer, juror or witness (The Law
Dictionary (n/d)).
Obstruction of justice broadly encompasses the
actions taken by individuals to unlawfully
impede or influence the outcome of a
government proceeding. Although the classic
example of obstruction of justice involves
tampering with a judicial proceeding, multiple
laws address obstruction of justice, spanning
across all branches of government and targeting
different forms of obstruction. Instead of a single
law, obstruction of justice is addressed in various
criminal statutes, as there are numerous methods
through which obstruction can be committed.
Question 2. What are the key elements of the
‘obstruction of justice’ offense?
While these statutes differ in their specifics, each
obstruction of justice provision typically
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necessitates evidence that the defendant 1) had
knowledge of a government proceeding and
2) intentionally acted to disrupt the said
proceeding.
As a matter of law enforcement practice,
obstruction of justice can take various forms,
including the following.
1. Interfering with the investigation. This
involves actions such as providing false
information, destroying evidence, or
concealing evidence to mislead investigators
or prevent the truth from emerging.
2. Tampering with witnesses. This type of
illegal activity includes actions like
intimidating, threatening, bribing, or
otherwise influencing witnesses to withhold
or alter their testimony.
3. Lying under oath. Giving false statements
while under oath, whether in a courtroom or
during a sworn deposition, can be
considered obstruction of justice.
4. Resisting arrest. Engaging in physical
resistance or evading arrest in an attempt to
obstruct the lawful actions of law
enforcement officers.
5. Bribery or corruption. Offering, soliciting,
or accepting bribes or other forms of illegal
gratification to influence the outcome of
legal proceedings or investigations.
Globally, obstruction of justice is a serious
offense in many jurisdictions, as it undermines
the integrity of the legal system and the pursuit
of justice. Thus, penalties for obstruction of
justice can include fines, imprisonment, or both,
depending both on the jurisdiction and the
severity of the offense.
Question 3. How is obstruction of justice
prosecuted in various world jurisdictions?
Various national statutory provisions address the
issue of criminal liability for obstruction offenses
by providing harsh penalties. A few are worth
referring to in the following lines.
A. United States
In the United States, obstruction of justice is
addressed in a number of federal laws. Among
those, 18 U.S.C. § 1503 “Obstruction of justice
in judicial proceedings” is perceived as the key
one. Over the years, there have been numerous
arguments presented in obstruction of justice
prosecutions that require judicial interpretation.
These arguments often revolve around the mens
rea (mental state) required to satisfy the statute
and what qualifies as a “corrupt intent.” In
practice, such issues can give rise to
constitutional dilemmas, particularly when the
individual accused of the obstruction offense is
an attorney and the alleged conduct is connected
to their representation of a client. Courts have
also grappled with determining whether matters
of obstruction should be classified as issues of
law or fact, which is a significant consideration
in determining the decision-maker. The generic
obstruction of justice statute, as outlined in 18
U.S.C. § 1503, encompasses obstructions that
can arise from both criminal and civil
proceedings. Thus, an important side note here:
American law addresses issues of liability for
obstruction violations via means of both criminal
and civil action.
Here are several other “obstruction” statutes
under the federal law: 18 U.S.C. § 1505
“Obstruction of proceedings before federal
departments and agencies”; 18 U.S.C. § 1512
“Tampering with witnesses, victims, or
informants”; 18 U.S.C. § 1519 “Destruction,
alteration, or falsification of records in federal
investigations”; 18 U.S.C. § 1520 “Destruction
of corporate audit records”.
These are just a few examples of federal
obstruction statutes in the United States. There
are also a few state-specific laws addressing
obstruction of justice as well.
As a prominent American commentator Ellen
Podgor puts it, in order to promote consistency
and predictability within the criminal justice
system, which are crucial for achieving
deterrence, it is essential to pay attention to the
framework of obstruction of justice. Merely
relying on sentencing guidelines to ensure
consistent sentencing is inadequate if the
charging process itself lacks uniformity. To
establish a consistent charging framework for
obstruction of justice, it must be tailored to
individual cases, take into account the specific
circumstances of a trial, sentencing, or
impeachment, and maintain fidelity to the
contextual setting. Additionally, it should have a
structure that is not subject to arbitrary changes
based on the discretion of the United States
Attorney, prevailing political climate, or the
interpretations of government officials (Podgor,
2021). Such scholarly arguments have rational
basis.
Another interesting point: conspiracy to commit
obstruction of justice is a separate criminal
offense under American law. Conspiracy to
Obstruct (18 U.S.C. 371). The statute provides: if
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two or more persons conspire either to commit
any offense against the United States or to
defraud the United States, or any agency thereof
in any manner or for any purpose, and one or
more of such persons do any act to effect the
object of the conspiracy, each shall be fined
under this title or imprisoned not more than five
years, or both.
Section 371 of the U.S. Code encompasses both
a general prohibition on conspiracy and a specific
prohibition on conspiracy to obstruct in the form
of a conspiracy to defraud. To establish the
offense of conspiracy to defraud the United
States, the following elements must be present:
(1) an agreement between two or more
individuals; (2) with the intention to defraud the
United States; and (3) the commission of an overt
act by one of the conspirators in furtherance of
the scheme. The term “fraud” as defined in the
statute encompasses any conspiracy aimed at
impairing, obstructing, or defeating the lawful
functions of any government department through
deceit, cunning, dishonesty, or similar means
(Doyle, 2014).
We will add that based on American legal
approach to prosecution obstruction of justice
offenses this offense can be classified as white
collar crime of global character. Indeed, there is
almost not violence involved in the course or
committing such illegal act. On the contrary,
fraud, evasion, concealment of documents and
information are the right words to describe the
illegal nature of obstruction. As correctly put by
some commentators, modern “globalization
leads, at least in some cases, to the emergence of
new types of economic crimes, the expansion of
economic crime in general and its adaptation to
various socioeconomic changes” (Lutsenko et
al., 2023).
B. England
In England, obstruction of justice is covered
under several statutes, including:
Section 1 of the Perjury Act 1911: Prohibition on
perjury and other offenses against public justice;
Section 51 of the Criminal Justice and Public
Order Act 1994: Offense of obstructing a
constable in the execution of their duty;
Section 2(1) of the Criminal Attempts Act 1981:
Offense of attempting to obstruct, pervert, or
defeat the course of justice;
Section 5(2) of the Criminal Law Act 1967:
Prohibition on conspiracy to obstruct justice.
Being a part of the English common law system,
its criminal law incorporates such a common law
offense as “Perverting the Course of Justice”.
This offense is committed when an accused: does
an act or series of acts; which has or have a
tendency to pervert; and which is or are intended
to pervert; the course of public justice.
The offense is contrary to common law and is
triable only on indictment. It carries a maximum
penalty of life imprisonment and/or a fine. The
course of justice must be in existence at the time
of the act(s) (Legal Guidance, 2022).
C. China
In China, the criminal offense of obstructing
justice is recognized in several provisions of the
Criminal Law of the People’s Republic of China,
including:
Article 277: Obstructing witnesses, experts, or
appraisers.
Article 310: Perverting the course of justice.
Article 382: Hindering the execution of
judgments or orders.
Article 383: Escaping from prisons, detention
centers, or custody, or refusing to accept
judgments or orders.
These are examples of provisions within the
Chinese Criminal Law related to obstruction of
justice. The Criminal Law of China encompasses
a wide range of offenses and provisions related
to the obstruction of justice and may vary
depending on the specific circumstances and
nature of the obstruction.
Here is an interesting case involving obstruction
of justice charges brought in the U.S. against two
Chinese nationals. The criminal complaint was
unsealed on October 24, 2022, in federal court in
Brooklyn charging two People’s Republic of
China (PRC) intelligence officers with
attempting to obstruct a criminal prosecution in
the Eastern District of New York.
Guochun He and Zheng Wang were charged with
attempting to obstruct a criminal prosecution of
Company-1 in federal district court in the Eastern
District of New York. Defendant He also was
charged with two counts of money laundering
based upon bribe payments totaling
approximately $61,000 in Bitcoin, made in
furtherance of the scheme.
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According to the complaint, the defendants were
PRC intelligence officers conducting foreign
intelligence operations targeting the United
States, on behalf of the PRC government and for
the benefit of Company-1. Starting in 2019, they
directed an employee at a U.S. government law
enforcement agency (GE-1), whom they believed
they had recruited as an asset, to steal
confidential information about the criminal
prosecution of Company-1 in order to interfere
with that prosecution. In reality, GE-1 was
working as a double agent on behalf of the FBI.
In particular, in October 2021, GE-1 used an
encrypted messaging program to send the
defendants a single page from a purported
internal strategy memorandum from the U.S.
Attorney’s Office for the Eastern District of New
York regarding the Company-1 case. The
document appeared to be classified as
“SECRET” and to discuss a plan to charge and
arrest two current Company-1 employees living
in the PRC. Guochun He responded that the
document was “exactly what I am waiting for”
and that he was “waiting for the feedback from
some guys” about whether there were any
questions about the document. Guochun He then
paid GE-1 approximately $41,000 in Bitcoin for
stealing that document (U.S. Department of
Justice press release, 2022).
D. Germany
In Germany, obstruction of justice is addressed
under various provisions of the Strafgesetzbuch
(German Criminal Code), including:
Section 258: Obstruction of justice.
Section 258a: Disruption of public services.
Section 258b: Obstruction of justice by using
false evidence.
Section 258c: Coercion of witnesses.
Back in September of 2021 the German
prosecutors have raided the country’s finance
ministry as part of an investigation into alleged
obstruction of justice, in a move that could prove
embarrassing for Olaf Scholz, then the finance
minister and frontrunner to succeed Angela
Merkel as chancellor. The raids on both the
finance and justice ministries were part of an
investigation that started in February last year
into the Financial Intelligence Unit, a unit of
German customs, which is the government’s
main anti-money laundering agency.
Prosecutors were looking into whether FIU
employees failed to pass on warnings from banks
about possible money laundering “to the tune of
millions of euros” to law enforcement agencies
(Financial Times, 2019).
E. France
In France, obstruction of justice is covered under
several provisions of the Code pénal (French
Penal Code).
Under Art. 433 of the Penal Code, a three-year
prison term and a fine of 45,000 euros can be
imposed for a threat to commit a crime or
misdemeanor against persons or property made
against a person holding a public elective office,
a magistrate, a juror, a lawyer, a public or
ministerial officer, a member of the national
gendarmerie, an official of the national police,
customs, labor inspection, the prison
administration or any other person vested with
public authority.
Furthermore, a penalty of five years’
imprisonment and a fine of 75,000 euros can be
imposed for the use of threats or violence or any
other act of intimidation towards any person
participating in the execution of a public service
mission, in order to obtain for oneself or for
others a total or partial exemption or a
differentiated application of the rules which
govern operation of the said service (Code penal,
2022). Thus, we are talking here about
interference in the official conduct of business by
means of threats or intimidation.
Other provisions of the French Penal Code
include:
Article 434-9: Obstruction of the administration
of justice.
Article 434-15: Obstruction or violence against a
judicial officer.
Article 434-20: Intimidation or retaliation against
witnesses, experts, or interpreters.
Article 434-22: Destruction, concealment, or
falsification of evidence.
These provisions of the French Penal Code are
relevant to obstructing justice or related offenses.
In 2021, the France’s Constitutional Court has
ruled that the legal provision used by the national
competition enforcer to fine companies for
obstructing investigations is unconstitutional,
because another provision also allows the
authority to penalize the same conduct (Craig,
2021).
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F. Ukraine
The Ukrainian criminal law has long recognized
the need to address the issue of obstructing law
enforcement activities, including criminal
investigations and other types of official
inquiries.
In particular, Ukrainian legal scholars have been
actively studying foreign experience of criminal
law regulation in their treatises (Movchan et al.,
2021). Thus, using comparative method of
research is essential for the development of
emerging criminal law system of Ukraine. This
argument is fair not just for obstruction of justice
offenses but for other offenses as well (Vozniuk
et al., 2021).
Under the current national law, methods of
obstructing official activity of a law enforcement
officer can be both violent and non-violent.
Violent methods include: inflicting bodily harm
injuries; threats of murder, violence, or harm to
property; physical resistance; murder of a law
enforcement officer, destruction of his property,
etc.
The Criminal Code of Ukraine defines
interference in the activities of employees of law
enforcement bodies, state executive bodies in
Art. 343 of the Criminal Code as influence in any
form on law enforcement officer or employee
state executive service in order to prevent his
performance of official duties or achieve making
an illegal decision. At the same time, the
Criminal Code provides in the articles 342, 345,
347, 348, 349 for liability for resistance, threat or
violence, intentional destruction or damage to
property, encroachment on the life of a law
enforcement officer. In connection with this, a
question arises regarding the ratio of such norms
(Chub, 2014).
As one Ukrainian researcher puts it,
circumstances to be ascertained in the course of
the investigation of obstruction of the activity
law enforcement officer, play a significant role
during relevant criminal investigations, because
they are the defining landmarks that shape the
direction of the investigation. They also make it
possible to determine the set of measures that
should be taken into account to ensure full, quick
and objective investigation. Accordingly, the
circumstances to be investigated during
intervention in the activities of a law enforcement
officer should include: 1) circumstances related
to the occurrence of a criminal offense;
2) circumstances related to the person of the
victim; 3) circumstances related to the person of
the criminal (Guseva, 2021). As a result,
forensics, criminal investigation techniques
become very important in the course of
investigating obstruction of law enforcement
offenses.
Real case examples of nonviolent obstruction
include blackmail; an offer, promise or giving
unlawful benefits to a law enforcement officer;
official forgery; illegal commissions or orders;
other influence on the employee of the law
enforcement body through abuse of power or
official authority position, etc.
Among the most typical forms of interference
with law enforcement in Ukraine are the
following.
1. Resistance to a law enforcement officer or
intervention in the performance of his
official duties, combined with the
application violence or with the threat of its
use and committed directly during the
performance of his official duties, as well as
malicious disobeying the legal requirements
of a law enforcement officer (conducting
investigative or operational search actions,
patrolling territories, arresting offenders,
responding to applications and messages,
etc.). These are included in Part 3 of Art.
296, articles 342, 343, 391 of the Criminal
Code of Ukraine.
2. Encroachment on the life and health,
property, personal integrity of a law
enforcement officer or his relatives for
revenge or intimidation of official duties.
Such actions are proved for in articles 341,
345, 347, 348, 349, 392 of the Criminal
Code of Ukraine
(Yermolaeva-Zadorozhnya, 2017).
The following examples reveal, at least to some
degree, the essence of the obstruction of justice
offense.
Imagine a scenario where a person is facing trial
for a serious criminal offense. During the trial, it
becomes evident that there is strong evidence
against the defendant, and their chances of being
convicted are high. In an effort to obstruct the
court proceedings and evade justice, the
defendant engages in the following actions:
1. Intimidating witnesses. The defendant
contacts witnesses who are scheduled to
testify against them and threatens them with
physical harm or other forms of retaliation if
they proceed with their testimony. This
intimidation is aimed at dissuading
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witnesses from providing incriminating
evidence and weakening the prosecution’s
case.
2. Fabricating evidence. The defendant creates
false documents or manipulates existing
evidence to mislead the court and cast doubt
on their own guilt. This fabrication is
intended to undermine the credibility of the
prosecution’s case and confuse the judge and
jury.
3. Disrupting court proceedings. The
defendant engages in disruptive behavior
during court sessions, such as shouting,
interrupting witnesses, or refusing to comply
with the judge’s instructions. This disrupts
the orderly conduct of the trial and may
create an atmosphere of confusion and
disorder.
4. Engaging in witness tampering. In an
attempt to sway the testimony of witnesses,
the defendant contacts family members or
acquaintances of the witnesses and tries to
coerce or bribe them into influencing the
witnesses’ statements or persuading them to
withhold crucial information.
By engaging in these obstructive actions, the
defendant is intentionally interfering with the
court’s ability to conduct a fair and impartial
trial. Obstructing a court proceeding is a serious
offense and can result in additional criminal
charges and severe penalties if proven. It
undermines the integrity of the judicial process
and hampers the pursuit of justice.
Question 4. Are the any ‘big time’ cases
involving the discussed criminal offense?
A few high-profile cases involving obstruction of
justice are further illustrated:
1. Watergate Scandal (United States, 1972-
1974). The Watergate scandal led to the
resignation of President Richard Nixon. It
involved the break-in at the Democratic
National Committee headquarters, and
during the subsequent investigations,
evidence emerged of Nixon and his
administration attempting to cover up their
involvement in the break-in and obstructing
the investigations.
2. Martha Stewart (United States, 2001-2004).
Martha Stewart, a prominent businessperson
and television personality, was convicted of
obstruction of justice and making false
statements. The charges stemmed from her
involvement in a stock trading scandal
where she was accused of insider trading and
providing false information to investigators.
3. Enron Scandal (United States, 2001-2002).
The Enron scandal was a major corporate
fraud case involving the energy company
Enron. Executives at Enron, including CEO
Jeffrey Skilling and CFO Andrew Fastow,
were charged with obstruction of justice and
other offenses related to the manipulation of
financial statements, destruction of
documents, and misleading investigators.
4. Silvio Berlusconi (Italy, ongoing). Silvio
Berlusconi, the former Prime Minister of
Italy, has faced multiple legal cases,
including charges of obstruction of justice.
These charges stemmed from allegations of
bribery, tax evasion, and other criminal
activities. Berlusconi has been involved in
several high-profile legal battles over the
years.
These and similar cases from various world
jurisdictions highlight notable instances where
individuals or organizations have been accused
or convicted of obstructing justice. It is important
to note that the details and outcomes of such
cases can vary, and such list is not exhaustive.
Donald Trump, the 45th President of the United
States, faced allegations and investigations
related to obstruction of justice during his
presidency. However, it is important to note that
I can provide an overview of the situation, but I
do not have access to real-time information or
any knowledge beyond my September 2021
cutoff.
During his tenure, several significant events
occurred that led to discussions of potential
obstruction of justice. One notable instance was
the investigation conducted by Special Counsel
Robert Mueller, who was appointed to examine
Russian interference in the 2016 U.S.
presidential election and any potential
coordination with the Trump campaign.
In his report, released in April 2019, Mueller
examined potential obstruction of justice by
President Trump. While the report did not
conclude that Trump had committed a crime, it
did not exonerate him either. The report outlined
multiple instances where Trump's actions may
have constituted obstruction of justice, including
efforts to curtail the investigation and influence
witnesses (Rizzo, 2019).
It is important to add that the Mueller report did
not result in criminal charges against Trump, and
the question of whether his actions constituted
obstruction of justice remained a topic of debate
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and interpretation among legal experts and
policymakers.
Based on the results of our comparative research,
we argue that obstruction of justice and law
enforcement proceedings can take place at any
level of official functions – both at ‘lay criminal’
level and up to the highest ranking officials of the
state, including heads of the government. Also,
countries with a stronger embodiment of the rule
of law principle into the national legal systems
demonstrate a much more aggressive approach to
prosecuting the discussed offense when
compared to nation with developing legal
systems.
Conclusions
Obstruction of justice refers to the act of willfully
interfering with the administration of justice, by
attempting to impede or influence an ongoing
legal proceeding. The public danger lies in the
fact of obstructing proper functioning of the legal
system, commonly by impeding or hindering the
efforts of law enforcement, investigators, or
judicial proceedings. It entails deliberately
impeding or influencing the legal procedures
with the intention of preventing detection, arrest,
or punishment of individuals engaged in illegal
actions.
This criminal phenomenon can take various
forms, among them: providing false or
misleading information to investigators or law
enforcement officials; destroying, altering or
hiding evidence; threatening or intimidating
witnesses or jurors; attempting to bribe or
influence a judge or other official in a legal
proceeding; failing to comply with a court order.
Obstruction of justice is a serious criminal
offense under the laws of most world
jurisdictions. This offense can carry severe
penalties, including fines, imprisonment, and in
some cases, disbarment or removal from public
office.
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