Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"

de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia

Maracaibo, Venezuela

Esta publicación cientíca en formato digital es continuidad de la revista impresa

ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp

197402ZU34

ppi 201502ZU4645

Vol.41 N° 79

Octubre

Diciembre

2023

Recibido 12/07/23 Aceptado el 09/09/23

ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132

Cues tio nes Po lí ti cas

La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to

de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-

cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.

En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias

Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-

ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-

ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.

Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con

avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-

co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.

ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN

Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de

Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-

gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of

Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s

Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-

nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.

Di rec to ra

OIRALITH

M. C

HIRINOS

ORTILLO

Co mi té Edi tor

Eduviges Morales Villalobos

Fabiola Tavares Duarte

Ma ría Eu ge nia Soto Hernández

Nila Leal González

Carmen Pérez Baralt

Co mi té Ase sor

Pedro Bracho Grand

J. M. Del ga do Ocan do

José Ce rra da

Ri car do Com bel las

An gel Lom bar di

Die ter Nohlen

Al fre do Ra mos Ji mé nez

Go ran Ther born

Frie drich Welsch

Asis ten tes Ad mi nis tra ti vos

Joan López Urdaneta y Nil da Ma rín

Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-

cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co

“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.

com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.

Vol. 41, Nº 79 (2023), 509-523

IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ

A Special Status Victim: Criminal

Liability for Assaulting a Government

Ocial in Ukraine and Other Countries

DOI: https://doi.org/10.46398/cuestpol.4179.35

Andrii Borovyk *

Iryna Tkachenko **

Bohdana-Yuliya Ivchenko ***

Petro Mandzyk ****

Eduard Solovyov *****

Abstract

The paper discusses some emerging issues of criminal liability

for assaults against public ocials in various jurisdictions.

Emphasis is placed both on the comparative approach to analyzing

the relevant criminal statutes and on the specic legal framework

for the protection of the life and health of law enforcement ocers.

Based on the provisions of statutory criminal law and the case law of several

countries, it is shown that the life, health and property of law enforcement

ocers enjoy a higher level of protection. This is explained by the fact that

such persons are direct representatives of the state, perform their duties

in public, remain under public scrutiny and, therefore, may become an

easier target for assault crimes. In the conclusions of the research, it has

been argued that the determination of the legal grounds, scope and limits

of protection of public ocials by criminal law should be carried out at

the national level (or state level in a federal jurisdiction), based on the

orientations and principles of the domestic criminal law policy and program

of a given nation.

Keywords: assault; criminal liability; public ocial; ocer of authority;

damage caused by a crime.

* Candidate of Legal Sciences, Docent, Vice President of the Scientic Institute of Public Law (Kyiv,

Ukraine). ORCID ID: https://orcid.org/0000-0003-1834-404X. Email: aborovychok@gmail.com

** Candidate of Legal Sciences, Lecturer of Criminal Law Department, National Academy of Internal

Aairs (Kyiv, Ukraine). ORCID ID: http://orcid.org/0000-0002-0144-0708. Email: kachur00ira@

ukr.net

*** Candidate of Legal Sciences, Inspector of the Department of educational and methodical work at

Kharkiv National University of Internal Aairs (Sumy, Ukraine). ORCID ID: https://orcid.org/0000-

0002-5810-6065. Email: iuv15ukr.net@gmail.com

**** Candidate of Legal Sciences, Researcher of the Scientic Institute of Public Law (Kyiv, Ukraine).

ORCID ID: https://orcid.org/0009-0000-3337-543X. Email: institutelaw@sipl.com.ua

***** Chief of the Investigation Department of the Main Directorate of the National Police in Mykolaiv

region (Mykolaiv, Ukraine). ORCID ID: https://orcid.org/0000-0001-6433-004Х. Email: ddt99@i.ua

510

Andrii Borovyk, Iryna Tkachenko, Bohdana-Yuliya Ivchenko Petro Mandzyk y Eduard Solovyov

A Special Status Victim: Criminal Liability for Assaulting a Government Ocial in Ukraine and

Other Countries

Una víctima de estatus especial: Responsabilidad

penal por agredir a un funcionario del gobierno en

Ucrania y otros países

Resumen

El documento analiza algunas cuestiones emergentes de la

responsabilidad penal por agresiones contra funcionarios públicos en

diversas jurisdicciones. Se hace hincapié tanto en el enfoque comparativo

para analizar los estatutos penales pertinentes, como en el marco

jurídico especíco para la protección de la vida y la salud de los agentes

del orden. Basándose en las disposiciones del derecho penal estatutario

y en la jurisprudencia de varios países, se ha demostrado que la vida, la

salud y la propiedad de los funcionarios públicos gozan de un mayor nivel

de protección. Esto se explica por el hecho de que dichas personas son

representantes directos del Estado, desempeñan sus funciones en público,

permanecen bajo el escrutinio público y, por lo tanto, pueden convertirse en

un objetivo más fácil para los delitos de agresión. En las conclusiones de la

investigación se ha argumentado que la determinación de los fundamentos

jurídicos, el alcance y los límites de la protección de los funcionarios

públicos por medio del derecho penal debe llevarse a cabo a nivel nacional

(o estatal en una jurisdicción federal), sobre la base de las orientaciones y

los principios de la política y el programa internos de derecho penal de una

nación determinada.

Palabras clave: agresión; responsabilidad penal; funcionario público;

agente de la autoridad; daños causados por un delito.

Introduction

Comparative analyses between dierent countries and systems has

brought us extensive knowledge about crime and criminal justice in the

modern world. Particularly fruitful have been comparisons between the

world’s two major legal systems – the so-called Anglo-American common

law system and the continental civil law system.

Indeed, legal comparative analyses can cover various areas of criminal

law regulation. The systems of public service are not an exception here.

Public ocials are required to make important policy decisions as part of

their daily service to the communities. Such decisions are often unpopular

and, in many cases, politicians and public ocials may become targets of

threats and even physical attacks.

511

CUESTIONES POLÍTICAS

Vol. 41 Nº 79 (2023): 509-523

Nowadays, in almost any world jurisdiction assaulting a public ocer

constitutes a serious criminal oense. The penalties imposed by the court

will depend on: classication of the oense (summary or indictable), nature

and circumstances surrounding the oense and the injuries sustained by

the public ocer as a result of such oence. The bottom-line rule is this:

government ocials are out there to serve and protect, they are always on

display for their activities, for both their achievements and mistakes; thus,

their life, health and property require enhanced approach toward criminal

law protection.

1. Methodology

This paper incorporates several research methods used for the purposes

of comprehensive analyses and critical elaboration of conclusive remarks.

The comparative law method, which has been used as the leading one

throughout our research, has enabled to research legal grounds and specic

forms criminal liability for assaulting public ocials in various jurisdictions

and to compare various liability frameworks in several jurisdictions. Overall,

the comparative method remains the leading one in legal scholarship.

The observation method also made it possible to identify current

legislative trends throughout the world with regard to formulating and

enforcing crimes of assault against public victims. The observation method

has also revealed some issues related to the need for further academic

research in this emerging area of criminal law regulation and enforcement.

The philosophical (dialectical) method allowed to fully understand

research issues at hand, their methodological grounds, to structure this

research project properly and also to comprehend the object of the study on

a step-by-step basis (Movchan et al., 2022).

The system-structural method has been employed to analyze relevant

criminal statutes and their structural positions in the national criminal laws

of several world nations. In particular, this method has allowed to reveal

the place of assault-related statutes within the criminal laws of several

states, thus showing the underlying links (or their absence) between various

criminal provisions.

As for the statistical method of collecting and summarizing material, it

has been partially used in order to demonstrate data on annual number of

relevant criminal prosecutions in a given country.

512

Andrii Borovyk, Iryna Tkachenko, Bohdana-Yuliya Ivchenko Petro Mandzyk y Eduard Solovyov

A Special Status Victim: Criminal Liability for Assaulting a Government Ocial in Ukraine and

Other Countries

2. Discussion

From the very start, it is worth to point out that lawmaking and law-

enforcement experience of any nation, including Ukraine, in terms of

criminal law regulation and enforcement can be potentially useful for other

countries.

On the one hand, public ocials themselves are not immune from

crimes and regularly commit oenses related to corruption and oce

abuse. For example, in Ukraine scholars have recently formulated specic

elements, which determine the need to criminalize intentional failure to le

a declaration and declare inaccurate information.

On the other hand, ocials can and actually do become victims of

various crimes aimed against them. This includes such serious oenses

as murder, assault or robbery while in oce. As one commentator put it,

analysis of foreign experience of criminal law regulation in the discussed

area is distinguished by the principle of national specicity, which is based

on the priorities of state policy, legal traditions of a certain state, and the

level of development of democratic institutions and institutions of civil

society.

Thus, specic features in developed European countries are: a smaller

number of criminal law norms that provide for socially dangerous acts

against law enforcement ocers and other public ocials; recognition of

protection of life, health and property of government representatives as

distinct areas of prioritized criminal law regulation; criminalization of use

of physical violence and attacks on such persons, and not mere threats to

commit them (Criminal Codes of Austria, Denmark, Belgium, etc.); criminal

liability is not provided for assaulting relatives of government ocials

in connection with the performance of their ocial powers (Criminal

Codes of Germany, Georgia, Latvia, Lithuania, France, Sweden, Estonia);

recognition of a person (persons) who assist a public ocial in the course

their legal duty or on the request of such a person (Criminal Codes of the

Netherlands, Israel etc.) (Kirbyatyev, 2021).

Several among the authors of this paper have recently researched

some controversial issues related to public ocial as a victim of criminal

insult and defamation (Borovyk et al., 2023). Now we move on to analyze

more dangerous oenses, which involve assaults on representatives of the

government – public ocials. Our analyses will include several jurisdictions

– United States of America, Australia, Germany and Ukraine.

• United States of America

Various types of oenses against public ocials related to their duties

are criminalized both on federal and state levels in the United States.

513

CUESTIONES POLÍTICAS

Vol. 41 Nº 79 (2023): 509-523

On the federal level, 18 U.S. Code (the Title 18 is also unocially called

the U.S. Criminal Code) Chapter 7 “Assault” deals with various criminal

types of assault against domestic and foreign ocials as well as lay citizens.

For example, 18 U.S.C. § 111 “Assaulting, resisting, or impeding certain

ocers 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 ocial 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 ocial duties during such person’s term of service, shall,

where the acts in violation of this section constitute only simple assault, be

ned under this title or imprisoned for 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 ned under this title or imprisoned

not more than 8 years, or both”.

In case a deadly or dangerous weapon (including a weapon intended

to cause death or danger but that fails to do so by reason of a defective

component) was used or a bodily injury was inicted, oender shall be ned

under this title or imprisoned not more than 20 years, or both (18 U.S. Code

§ 111).

The following provision, 18 U.S.C. § 111 “Protection of foreign ocials,

ocial guests, and internationally protected persons”, states that “whoever

assaults, strikes, wounds, imprisons, or oers violence to a foreign ocial,

ocial 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 ocial premises, private

accommodation, or means of transport or attempts to commit any of the

foregoing shall be ned under this title or imprisoned not more than three

years, or both. Whoever in the commission of any such act uses a deadly or

dangerous weapon, or inicts bodily injury, shall be ned under this title or

imprisoned not more than ten years, or both” (18 U.S. Code § 112).

Thus, one can see that attacking a public ocial in America is a “serious

business” with harsh legal consequences for the attacker.

As a good example on the state level, we can refer to the relevant

Californian statute.

Section 217.1(a) of the Californian Penal Code provides, in particular:

every person who commits any assault upon the President or Vice President

of the United States, the Governor of any state or territory, any justice,

judge, or former judge of any local, state, or federal court of record, any

commissioner, referee, or other subordinate judicial ocer of any court of

record, the secretary or director of any executive agency or department of

the United States or any state or territory, or any other ocial of the United

514

Andrii Borovyk, Iryna Tkachenko, Bohdana-Yuliya Ivchenko Petro Mandzyk y Eduard Solovyov

A Special Status Victim: Criminal Liability for Assaulting a Government Ocial in Ukraine and

Other Countries

States or any state or territory holding elective oce, any mayor, city council

member, county supervisor, sheri, district attorney, prosecutor or assistant

prosecutor of any local, state, or federal prosecutor’s oce, a former

prosecutor or assistant prosecutor of any local, state, or federal prosecutor’s

oce, public defender or assistant public defender of any local, state, or

federal public defender’s oce, a former public defender or assistant public

defender of any local, state, or federal public defender’s oce, the chief of

police of any municipal police department, any peace ocer, any juror in any

local, state, or federal court of record, or the immediate family of any of these

ocials, in retaliation for or to prevent the performance of the victim’s ocial

duties, shall be punished by imprisonment in the county jail not exceeding

one year or by imprisonment pursuant to subdivision (h) of Section 1170.

As one may observe from this statutory provision, Californian criminal

law contains a rather extensive list of both “in oce” and former government

ocials (including federal ones) and also immediate family members, who

are recognized as potential victims of criminal assaults.

Anyone who tries to commit murder against an individual mentioned

in subsection (a) with the intention of retaliating against or obstructing the

victim’s execution of their ocial responsibilities will face imprisonment in a

state penitentiary for a duration ranging from 15 years to life, as outlined in

Section 217.1(a) of the Californian Penal Code.

Indeed, murder of a public ocial is an even more ‘serious business’,

which triggers much more severe criminal sanctions.

In order to prove that a defendant committed the oense of assault on a

public ocial, a prosecutor must be able to establish the following elements:

1) the defendant committed an assault with a deadly weapon or by means of

force likely to produce great bodily injury; 2) the defendant committed an

assault on the person of a government ocial, former government ocial,

or the immediate family of any of these ocials; and 3) the defendant acted

in retaliation for or to prevent the performance of the victim’s ocial duties

(California Penal Code, 2023).

In the United States, among the signicant factors contributing to

murders of law enforcement agents are gun laws and the right to wear a

concealed weapon in particular.

In his well-written paper “Assault of Police” D. Bierie makes a good

point: violent attacks against police represent a particularly important form

of violence for social scientists and policymakers to understand. He then

provides three arguments for the necessity of qualied research of such

crimes of violence: 1) unique risks for ocers, agencies, and the community

– ocers may experience a greater level of injury than other types of victims

(all else held constant); 2) attacks against ocers also can lead to important

costs for agencies and thus taxpayers – this includes medical treatment for

515

CUESTIONES POLÍTICAS

Vol. 41 Nº 79 (2023): 509-523

injuries, time spent completing paperwork and holding hearings on the use of

force, and reduced or disrupted resources when ocers are placed on leave;

3) such form of violence is important to understand because such illegal acts

reect, to some degree, an attack on the rule of law and deance of the justice

system itself. The American commentator makes a conclusion that primarily

for those reasons, police, policymakers, and the public would benet from a

deeper understanding of violence directed at police (Bierie, 2017).

Based on the results of his own in-depth research, American scholar

D. Mustard observes that those states, which enact concealed carry laws

have a slightly higher likelihood of having a felonious police death and also

slightly higher rates of felonious police deaths prior to the law’s passage.

After passage of the right-to-carry laws, states exhibit a reduced likelihood of

having a felonious police death rate and slightly lower rates of police deaths.

He also suggests that those who believe allowing private citizens to carry

concealed weapons will endanger the lives of law enforcement ocials do not

even have anecdotal evidence to support them. Professor Mustard found no

examples of law-abiding citizens with concealed weapons permits assaulting

police ocers. In contrast, there is at least one example of such a citizen

coming to the aid of an ocer (Mustard, 2001).

Thus, the widely spread opinion that gun laws always contribute to deadly

and non-deadly assaults on police ocers is a biased one, at least in the case

of the U.S. policing and gun regulations.

• Australia.

The oence of assaulting a public ocer is considered a serious assault

in Australia. The penalties imposed will also vary depending on the injuries

sustained by the public ocer because of the assault.

Since Australia is a federal state, it has local Criminal Codes (those of six

states) and a federal Criminal Code – the regularly compiled Criminal Code

Act of 1995 (as of March 28, 2021). Due to space limitations for this research

paper, we will focus on the relevant federal criminal law provisions.

According to Section 147.1, “Inicting harm upon a Commonwealth

public ocial, etc.” within the Australian Criminal Code, inicting harm

upon a Commonwealth public ocial is considered a federal oense. An

individual (referred to as the rst person) commits an oense under this

provision if:

(a) The rst person engages in certain behavior;

(b) The rst person’s behavior results in harm to a public ocial;

their behavior;

516

Andrii Borovyk, Iryna Tkachenko, Bohdana-Yuliya Ivchenko Petro Mandzyk y Eduard Solovyov

A Special Status Victim: Criminal Liability for Assaulting a Government Ocial in Ukraine and

Other Countries

(d) The harm is caused without the ocial’s consent; and

(e) The rst person engages in this behavior due to one of the following

reasons:

(i) The ocial’s status as a public ocial; or

(ii) Any actions taken by the ocial in their capacity as a public ocial.

The discussed Section provides for the following penalties: (f) if the

ocial is a Commonwealth judicial ocer or a Commonwealth law

enforcement ocer – imprisonment for 13 years; or (g) in any other case—

imprisonment for 10 years.

In a quite unique legislative approach (dierent from other jurisdictions)

Sec. 147.1 of the Australian Criminal Code separately recognizes such form

of criminal activity as causing harm to a former Governor-General, former

Minister or former Parliamentary Secretary. Thus, a person (the rst

person) commits an oense if: (a) the rst person engages in conduct; and

(b) the rst person’s conduct causes harm to another person; and also (c)

the other individual is a former Governor-General, ex-Minister, or former

Parliamentary Secretary; and (d) the rst person has the intent for their

actions to result in harm to the other individual; (e) the harm is inicted

without the consent of the other individual; and (f) the rst person’s actions

are motivated by one of the following factors:

(i) the other individual’s past status as a former Governor-General,

former Minister, or former Parliamentary Secretary; or

(ii) any actions carried out by the other individual in their previous role

as a Governor-General, Minister, or Parliamentary Secretary.

Furthermore, Australian criminal law is designed to prosecute not only

actual assaults on government ocials but also threats of potential assaults

against such persons. Thus, under Sec. 147.2 “Threatening to cause harm

to a Commonwealth public ocial etc.” of the Australian Criminal Code:

(1) An individual (referred to as the rst person) commits an oense

if: (a) The rst person directs a threat towards another individual (the

second person) or a third party, intending to cause serious harm; (b) The

second person or the third party targeted by the threat holds a public oce

person to genuinely fear that the threat will be carried out; or (ii) Acts

recklessly, disregarding the potential fear caused in the second person due

to the threat; and (d) The rst person issues the threat based on one of the

following reasons: (i) The ocial’s status as a public ocial; or (ii) Any

actions performed by the ocial in their capacity as a public ocial.

517

CUESTIONES POLÍTICAS

Vol. 41 Nº 79 (2023): 509-523

The penalty is as follows: (e) If the ocial targeted is a Commonwealth

judicial ocer or a Commonwealth law enforcement ocer, the oender

may face imprisonment for a duration of 9 years; or (f) In all other cases,

imprisonment for a period of 7 years.

The criminal law statute establishes that in a prosecution for an oense

against this section, it is not necessary to prove that the person threatened

actually feared that the threat would be carried out (Criminal Code Act,

1995).

Based on the above-mentioned provisions, we can make an interim

conclusion that Australia has introduced its own special legislative

approach to holding those who attack public ocials as criminally liable. In

addition, the criminal penalties imposed are clearly dened – thus courts

cannot impose any lower sentence under mitigating circumstances. This

is dierent from Ukrainian legislative approach, which usually provides

for a range of sanctions – from minimum to maximum ones. Also, the

statutes, (based on their ocial language) are quite cumbersome – they

are extensive and complicated, potentially with too lengthy descriptions of

criminal behavior parameters.

A brief example on West Australian criminal law approach to

criminalizing oenses against public ocials.

Assaulting a public ocer is recognized as a severe oense in Western

Australia. Section 318(1)(d) of the state Criminal Code denes this oense:

“Any individual who assaults a public ocer in the course of their ocial

duties or due to their role as an ocer is guilty of a crime.” In cases where

the oender pleads not guilty, the prosecution must prove all required

oense elements beyond a reasonable doubt.

Potential penalties, as determined by the court, hinge on whether the

case is heard in the Western Australia District Court or the Magistrates

Court. Additionally, the severity of penalties depends on the extent of

injuries sustained by the public ocer due to the assault.

This oense can only be tried as a summary oense (in the Magistrates

Court), if the perpetrator was not armed with a dangerous or oensive

weapon and was not in the company of others immediately before or

after the alleged oense. When tried in the Magistrates Court of Western

Australia, if the oender is found guilty, the court may impose a maximum

ne of up to $36,000. Additionally, the court can prescribe a maximum

prison term of up to three years.

If the oender causes injuries to a public ocer, such as a police ocer,

aecting their well-being and comfort, the court is obligated to impose a

mandatory prison sentence of at least six months. It is worth noting that

the injuries inicted on the ocer must go beyond mere pain or discomfort

experienced during the assault.

518

Andrii Borovyk, Iryna Tkachenko, Bohdana-Yuliya Ivchenko Petro Mandzyk y Eduard Solovyov

A Special Status Victim: Criminal Liability for Assaulting a Government Ocial in Ukraine and

Other Countries

If the oender causes a public ocer, like a police ocer, to sustain

bodily injuries that endanger life or are likely to result in permanent health

damage (i.e., grievous bodily harm), the court must impose a mandatory

prison term of no less than twelve months (Assaulting a police ocer,

2023).

As a matter of proper illustration, the following diagram presents annual

statistics on the number of police ocers assaulted in the United Kingdom.

Fig. 1. Number of police ocers assaulted in the year ending March 2021,

England and Wales (statistical data)6

• Germany.

We will now turn to the relevant statutes in “agship” criminal law

jurisdiction within in the civil law jurisdictions – namely Germany.

Indeed, for over two hundred years now, German Criminal Code has been

a landmark document, which was closely read, interpreted and to some

extent incorporated into national criminal laws of many other European

(and beyond) states.

6 Source: Annex: Statistics on the number of police ocers assaulted in the year ending March 2021,

England and Wales. Updated 30 March 2022. https://www.gov.uk/government/statistics/police-

workforce-england-and-wales-31-march-2021/annex-statistics-on-the-number-of-police-officers-

assaulted-in-the-year-ending-march-2021-england-and-wales.

519

CUESTIONES POLÍTICAS

Vol. 41 Nº 79 (2023): 509-523

Division 6 “Resistance to state authority” of the German Criminal Code

deals explicitly with both resistance-related and assault-related oenses

against public ocials in general and law enforcement agents in particular.

Section 113 of the German Criminal Code, titled “Resistance to

Enforcement Ocers,” outlines the following provisions:

Anyone who uses force or threatens to use force to oppose a public

ocial or a soldier in the Federal Armed Forces carrying out their ocial

duties, which include enforcing laws, statutory instruments, judgments,

judicial decisions, or directives, may face a penalty of imprisonment for up

to three years or a ne.

In especially serious cases, the penalty can range from six months to ve

years. Such serious cases are typically characterized by one or more of the

following conditions:

a) The oender or another person involved in the oense possesses a

weapon or another dangerous object.

b) The oender, through an act of violence, puts the assaulted person at

risk of death or serious harm.

c) The act is committed in collaboration with another oender.

This provision does not apply if the ocial act is unlawful. The same

exception applies if the oender mistakenly believes that the ocial act is

lawful.

Section 114, titled “Assault of Enforcement Ocers,” states:

Anyone who physically assaults a public ocial or a soldier in the

Federal Armed Forces assigned to enforce laws, statutory instruments,

judgments, judicial decisions, or directives during the performance of their

ocial duties may be sentenced to imprisonment for a duration ranging

from three months to ve years.

Additionally, Section 115, titled “Resistance to or Assault of Persons

Equal to Enforcement Ocers,” species the following provisions:

Sections 113 and 114 are applicable to safeguard individuals vested with

the powers and responsibilities equivalent to police ocers or who serve as

investigators in the public prosecution service without being public ocials.

Sections 113 and 114 also apply to protect individuals called upon to

aid in the execution of ocial duties. 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 members of the re brigade, the civil

protection service, one of the rescue services or emergency medical services

or a hospital emergency department who are rendering assistance. Persons

520

Andrii Borovyk, Iryna Tkachenko, Bohdana-Yuliya Ivchenko Petro Mandzyk y Eduard Solovyov

A Special Status Victim: Criminal Liability for Assaulting a Government Ocial in Ukraine and

Other Countries

who assault those rendering assistance in such situations incur a penalty

pursuant to section 114 (German Criminal Code, 2021).

Based on our interpretation of the relevant German criminal law

provisions, we can synthesize the following observations: 1) German

legislator is primarily focused on protecting law enforcement agents and

military service members and, to a lesser degree, other public ocials; 2) it

has to be proven that a competent government agent – victim of assault

– was acting in ocial capacity and in a lawful manner; 3) criminal law

provides for aggravated forms of assaults and also prescribes rather severe

penalties.

• Ukraine.

Finally, we turn to the “ocial assault” related section of Ukrainian

criminal law. As described in domestic academic literature on the

issue, proper functioning of any state is impossible without public (or

government) management, i.e., regulated inuence on both individuals and

organizations by legal acts in order to ensure law and order and achieve

other socially benecial results. Thus, provisions on the most dangerous

forms of obstruction of normal activities of state authorities, local self-

government bodies, citizens’ associations and their representatives in the

Criminal Code are concentrated in Chapter XV of its Special Part under

the title “Criminal oenses against the authority of state authorities, local

self-government bodies, citizens’ associations and criminal oenses against

journalists” (Borovyk, 2022).

Section XV of the national Criminal Code contains several relevant

provisions: interference in the activities of a law enforcement ocer,

forensic expert, employee of the state executive service, private executor

(Art. 343); interference with activity of a statesman (Art. 344); threats or

violence against a law enforcement ocer (Art. 345); threats or violence

against a statesman or a public gure (Art. 346); intended destruction or

damage to property of a law enforcement ocer, an employee of a state

executive service body or a private executor (Art. 347); trespass against

life of a law enforcement ocer, a member of a community formation for

the protection of public order, or a military servant (Art. 348); threats

or violence against an ocial or a citizen who performs his/her public

duty (Art. 350); interference with activity of a Member of Parliament of

Ukraine or a council or of a local council (Art. 351); intended destruction or

impairment of property owned by an ocial or a citizen who performs his/

her public duty (Art. 352).

As one might see, Ukrainian criminal law distinguishes among various

forms of criminal behavior against life, health and property of public

ocials. Such legal dierentiation seems both logical and pragmatic; it

521

CUESTIONES POLÍTICAS

Vol. 41 Nº 79 (2023): 509-523

allows to protect basic rights of government representatives. In addition,

when compared to German criminal liability model, provisions of the

Criminal Code of Ukraine in many aspects remind codied statutes of other

European countries. This serves as an indirect argument for the common

legal framework in Europe, including somewhat similar Criminal Codes.

As an example, we will refer to Art. 350 of the Criminal Code of Ukraine,

which sanctions threats or violence against an ocial or a citizen who

performs his/her public duty. This legal norm provides:

1. Making threats of murder, serious physical harm, or signicant

property damage using globally harmful methods, directed towards

an ocial, their close relatives, or a citizen carrying out their public

duties, with the intent to hinder the ocial’s or the citizen’s public

responsibilities or alter them for the advantage of the person making

the threats, is subject to a penalty of up to six months of arrest or up

to three years of restricted liberty.

2. Deliberate physical assault or causing minor or moderately severe

bodily harm to an ocial or a citizen performing their public duties

related to ocial or public activities, and such actions carried out

against their close associates, may result in a penalty of three to ve

years of restricted liberty or imprisonment for the same duration.

3. Intentionally causing severe bodily harm to an ocial or a citizen

performing their public duties related to ocial or public activities,

and such actions committed against their close associates, can lead

to imprisonment for a period ranging from ve to twelve years”

(Criminal Code of Ukraine, 2021).

Thus, we conclude that mere threats are recognized as a minor

criminal oense; instead, intentional assaults on public ocials constitute

aggravated forms of criminal behavior with much more severe penalties.

Conclusions

Based on our research, the following set of conclusions can be formulated.

Determination of the legal grounds, scope and limits of the protection

of government ocials by means of criminal law should be carried out

at the national (or state) level, based on the directions and principles of

the internal criminal law policy and agenda of a given nation. Thus, an

elaborated system of general and special measures of state protection of

public gures against obstruction of the performance of their ocially

imposed duties and exercising their rights, as well as from encroachments

on the life, health, housing and property of such persons in ocial capacity

and their close relatives should be established and vigorously protected.

522

Andrii Borovyk, Iryna Tkachenko, Bohdana-Yuliya Ivchenko Petro Mandzyk y Eduard Solovyov

A Special Status Victim: Criminal Liability for Assaulting a Government Ocial in Ukraine and

Other Countries

It is necessary to emphasize that the new era of socio-political

developments in various world jurisdictions, including Ukraine, is

constantly testing the strength and resourcefulness of many government

institutions, including law enforcement system. Thus, establishing a

just balance between the duties of government ocials and their rights,

including the right to eective criminal protection, should be recognized as

a guarantee of the eectiveness of the reforms initiated therein.

It has been proven that public ocials in any given jurisdiction and at

any given time are required to make important policy decisions as part

of their daily responsibilities. Thus, in many cases, politicians and public

ocials become targets of threats, physical attacks and even murders.