Mi karpenko Candidate of Legal Sciences, Associate Professor of Criminal Law and Procedure Universities \

Mi karpenko Candidate of Legal Sciences, Associate Professor of Criminal Law and Procedure Universities ' National Academy of Management




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Threats or violence against the princes methods of investigating these crimes
MI Karpenko

Candidate of Legal Sciences,

Associate Professor of Criminal Law and Procedure

Universities ' National Academy of Management "

Colonel of Justice stock
Statement of the problem . Commanders represent the state of the Armed Forces and other military units of Ukraine , leaders of the line. They are endowed with full authority to carry out their tasks and are responsible for the actions of the command and control and forces.

Successful completion of the commander ( chief ) of their duties involves the creation of such a situation, which gives him an opportunity to act in the interests of strengthening military discipline and ensures the integrity of his person. Inside the activity commander (chief ), his person and authority legally protected against possible attacks by individual employees.

Article 405 of the Criminal Code establishes liability for threat or violence against a superior in connection with the duties of military service.

The threat involves intimidation Head causing him physical harm , namely murder him, causing him bodily injury of any nature and severity of causing beatings , destruction or damage to property.

Social danger of the crime is determined that a threat to the established order gives Relations superiors and subordinates in the Armed Forces and other military units of Ukraine , can really intimidate commander and chief, adversely affect their official activity , lead to lower demands on subordinates and relaxation of military discipline.

The main direct target of social relations that protect the order of subordination , and its additional direct object - life and health.

How to recognize the threat of crime is not all military personnel, including senior by rank, but only the boss.

Thus the mean chiefs both office and by rank. Is not such a crime is not a threat to the person of the chief and his family.

With the objective of crime can be expressed in actions and can take the following forms : 1) the threat of murder or bodily injury or beating the captain or destruction of or damage to property in connection with the duties of military service ( including 1 of Art. 405 CC) , 2) bodily injury , battery or other violent acts on Head in connection with the duties of military service ( h .2 c. 405 CC).

The threat involves intimidation Head causing him physical harm , namely murder him, causing him bodily injury of any nature and severity of causing beatings , destruction or damage to property. Other threats (eg , threats to disclose information that is defamatory officer or persons close to him , threatening to give a slap, threat of attacks on his sexual liberty or sexual integrity and the threat expressed in the form of dim (" I see you ", " wait "and so on ) do not constitute a crime under Art . 405 CC.

To constitute a crime is not necessary that the perpetrator actually tried to make violence against the boss. In most cases, the slave does not intend to implement his threat , but merely trying to intimidate Head to influence his official activity.

The threat must be real, have the ability to intimidate the chief objective . The real threat is determined by the actual ability to implement it at the moment or in the near future, can not be considered real, for example, a threat that really can not be realized.

Unrealistic to have such a threat if its implementation is due to circumstances that are currently available, and the possibility of their occurrence in the future rather not defined and does not depend on the head, no matter who is threatening . But if, say, the slave boss threatened physical violence will realize that when he is assigned to guard and get weapons, a threat that must be considered real , able to intimidate and influence the head of his official activity. The reality of the threat does not depend on the perception of her boss how she influenced him is the same threat , expressed in the same environment can have different heads of different effects.

From threats , intimidation that is superior, it is necessary to distinguish between cases where the soldier , being drunk , in connection with his detention or the appointment of the brig showing displeasure, allows different cries to the commanders or chiefs , including those that contain elements of intimidation but in fact these cries real threat is not present. In such cases, the actions of the military - misbehavior and disrespect to the commander (chief ) - may be considered a disciplinary offense .
Threat boss as a war crime carried out in connection with his official duties . But this does not mean that the threat has to be expressed only when the head performs any duties of military service , is in the performance of these duties. It is an offense if it was suggested on the basis of performance management chief. This threat can take place in the location or outside a military base during military service or in spare time , expressed boss directly or transmitted to him by a third party.

According to Art. 405 CC belongs to qualify threats made ​​by the Chief on the basis of dissatisfaction by certain actions of his military service , which took place in the past, directly or in response to his specific comments or in connection with the general officer demanding . If the threat of physical violence is a means to prevent the captain fulfill his obligations of military service or a means for forcing him to breach these obligations , then such a threat must qualify under Art. 404 of the Criminal Code .

There may be cases where bullying is not limited to only the chief expression of death threats , bodily injury or beating, but is accompanied by certain actions - for example, the chief of zamahuvannyam fist, directing him to firearms and more.

From the subjective side only crime committed with direct intent : Wine recognizes that the chief threatened due to his official duties or commits violence against him and wants the chief threat was perceived , or is intended to cause harm to his health S or physical suffering.

The purpose of the threat - intimidating boss and thus affect its service activities . Outdoor display of discontent chief official duties , obscene cries , for example , in a state of intoxication, severe irritation in the absence of objective scare did not appear to constitute the crime. They can be considered a disciplinary offense .

Motive or threats of violence against the chief are dissatisfied official duties or chief general dissatisfaction with his specific actions or decisions taken in connection with the duties of military service.

Threats or violence against a superior, committed in connection with his illegal activities can not qualify for centuries. 405 of the Criminal Code : the military rule of law in these cases is not broken. Not qualify under this article or the threat of violence against the chief committed at the request of civilians on the basis of personal hostile relations ( through retaliation for conduct that occurred before conscription because of jealousy, of suspicion of theft personal items , etc.).

The offender can only serviceman ( bound to military service during the passage of Assembly), which is subordinate to the chief on whom he threatens or makes against whom violence.

According to Art. 405 of the Criminal Code , subject to qualifications concerning violence at Head office or by rank. Such actions on the senior , junior and equal military rank in the absence of subordination relations between them , but due to the performance of the duties of military service must be qualified under Art. 406 of the Criminal Code . None of the crime at issue , as in the case of violence on the basis of official duties performed on a person who was the chief perpetrator of the past, but it is not at the time of the violence.

When injury infringement understand the anatomical integrity or physiological function of organs and tissues that have arisen as a result of environmental factors. Beating recognize many strikes involving the infliction of physical pain to the victim .

The concept of violent acts on Head covers causing him severe , moderate or minor injuries and damage beatings. In this case, the injuries , except for grievous bodily harm aggravated under part 2 of article. 121 of the Criminal Code , include Part 2 of Art . 405 of the Criminal Code and additional qualification under the Articles of the Criminal Code on crimes against life and health do not require .

Chief of causing a single hit, which was not the result of causing bodily harm, can be viewed as an attempt at violence against the boss.

Chief of causing grievous bodily harm that caused the victim's death , it is necessary to qualify for multiple offenses - Part 2 of Art . 405 and Part 2 of Art . 121 of the Criminal Code , since the notion of violent action on the chief is not covered by causing him to death. Murder Head in connection with the duties of military service, not connected with the resistance of the Chief or coercing him to breach of duty of military service qualifies under paragraph 8 of Part 2 of Art. 115 of the Criminal Code . In this case, the additional qualification of the crime under Art. 405 of the Criminal Code is not required.

War Crimes recognize violence on head, taken in connection with the duties of military service, ie on the basis of his performance, and while the offense may be made in the location of military unit or abroad , during the execution of the Chief duties or in their free time military service .

Violent acts subject to qualification under Art. 405 of the Criminal Code when they are not associated with resistance or forcing his boss to a breach of duty of military service. These may be cases of violence against the chief because of his actions from the military service that took place in the past, either directly in response to comments made ​​by a subordinate at the moment.

If the slave in response to the ruler of violation of military discipline has its causes and beating him , his actions should be classified under Art. 405, and if he makes an attempt to prevent the execution applied to his disciplinary or resist - his actions there are signs of a crime under Art . 404 of the Criminal Code .

Particularly skilled in this type of crime is to commit it : 1) a group of persons , and 2) the use of weapons , and 3) under martial law , and 4) in a battle .

Violent actions to be undertaken chief subordinates in complicity with other military personnel who are not subordinates of the director as well as civilians. Actions accomplice in such cases must qualify under Articles 27 and 405 of the Criminal Code . If a crime by a group of soldiers subordinate to this boss guilty actions qualify for centuries. 405 of the Criminal Code without reference to Art. 27 CC.

When committing offense under Part 1 of Art . 405 of the Criminal Code , the use of weapons means firearms nude demonstration , sighting and so on , and in the commission of offense under Part 3. 405 CC - providing Aimed Shot or another way to use combat arms properties .

Analysis of recent research and publications. In the Soviet period 1917-1991 's issue of criminal legal description of war crimes , methods of inquiry investigated a galaxy of scholars of the time, among them HM Akhmetshin, FS Brazhnik , NV Vasiliev , AA Gertsenzon NI Zahorodnikov , SM Inshakov , AS Koblikov , VN Kudryavtsev , V. Kurland , R. Lopukhov , V. Lunyeyev , VP Maslov , IN Mackiewicz , A. Piontkovskii , AN Polyev , EV Prokopovych V. Romanov , AS Samoilov, A. Ter- Hakob , BS Utevsky , VM Chhikvadze , VP Shuplyenkov and others.

During the period of independence of Ukraine military crime problems paying attention to such scholars as S. Albul , G. Andrusyev , VM Bilokonyev , PP Bogucki , VP Bodayevskyy , V. Bondarev , VA Bugaev , V. Grischuk , VS Davydenko , S. Dyachuk VI Kasynyuk , VA Klimenko, E. Kovalevskaya , JB Kuryliuk , VK Matviichuk , MI Miller , VA Nawrocki , E. Narozhna , MI Panov, IA Papusha , EB Puzyrevsky , ON Sarnavskyy , MN Senko , AS Tkachuk , MS Turkhot , MI Havronyuk , SA Kharitonov , GI Chanhuli NI Schehel and others.

The purpose of the article is to try to put the author's method of investigation of crimes under Art. 405 of the Criminal Code of Ukraine, creatively treating those achievements that have already been tried and tested before.

The main results of the study. Threats or violence against a head of a crime against the chain of command . These actions can take some undisciplined soldiers, as calculated by intimidation commanders to encourage them to reduce the demands on the offender , creating favorable conditions for him to military service and so on.

Key issues to be proved by investigating threats head:

1) Whether there was a threat, and to whom he expressed it . As in the investigation of non-observance , resistance, in this case, determine whether the victim is in their office or military rank on the chief offender.

2) When, where and under what circumstances expressed by the chief threat . Set the time and place of the chief threats associated with issues bearing or military service.

3) content and form of threat. The reality of its implementation. In content the chief threat can be intimidating murder, causing bodily harm or of causing him a beating and can be expressed orally or in writing , in the form of gestures. Threats can be expressed directly to the Chief or transmitted through a third party . Chance of a mixed form of threats, the suspect ( accused ) is accompanied , for example, any gesture pohrozhuvalnoho character says bullying.

In proving the reality of the threat of great importance to study in this respect identity of the perpetrator .

4) In this connection, it has been a threat , that in connection with service or by any other activity it has been the chief threat subordinate to the superior.

5 ) Availability intent on intimidating boss. The motive and purpose of the crime. The subjective aspect of the threat is expressed in the form of intent . The purpose of the threat expressed in the form of direct intent . The purpose of intimidating threats against the chief. Reasons for its dissatisfaction with official duties is superior.

6) The circumstances affecting the degree and nature of the liability of the suspect ( accused) . Extenuating circumstances usually recognized : positive official description of the perpetrator to commit the threat , repentance to the crime, the threat to the implementation of the heat of passion , especially when it was caused by improper or insensitive actions of the chief and others.

Aggravating circumstance is the implementation of threats in wartime or in a battle .

7) The causes and conditions that contributed to the threat . They may be the wrong soldier training to military service , the shortcomings of the military education of personnel, disciplinary practice is wrong , rude or familiarity with subordinate chiefs , drinking .

Primary investigators ( ODA ) actions.

1) The examination supervisor. Investigating threats usually begins with questioning the head, which it is expressed. During the interrogation is to find out : who subordinates, when, where, and therefore threatened him , the content and form of threats that target and goal threat, who was in the course of threats and so on. If soldier threat during use slang words and symbolic gestures, it turns out , is understood to have been the victim of their meaning and significance .

Special attention during interrogation chief turns to how he perceived the threat or impact it in his mind as a means of intimidation, or be expected from the implementation of a soldier threats of what it implies .

If the chief threat seemed real , it is reasonable to ask him whether he has taken or about to take appropriate measures defensive. Clarification of this issue will allow more objective approach to assessing the reality of the threat .

Head of questioning , to find out how wine is characterized by that he with other commanders and comrades in the military, is it true he responded to the comments of senior , is not allowed before he battering or expressed threat or not he did the application, testifying to its low morale , if it has been tried. It should also be taking interest of his character febrile or not, as a whole behaves in conflict situations with commanders and colleagues , or did not notice him strange behavior .

Sometimes the threat is part of coercion ( the so-called "psychic " form of coercion ). To understand what was really - coercion or threats, interrogation by the chief appears , is accompanied by the threat of a serviceman specific requirements to the head make that - not any action contrary to the interests of the service or not.

2) The examination of a soldier that expressed threat. During interrogation, it is necessary to ask whether there was a threat the fact of the boss. If the answer to this question might circumstances , content, form , motivation and goal threat. It is important to clarify why the threat was made - in connection with the performance of the chief duties of military service or other reasons, that was her excuse why there was discontent in the military chief official duties , would not that hostile relations between them in personal basis , which was in fact the cause of the threat .

Wanting to avoid responsibility, soldier , declare that he had no intention of threatening or intimidating to realize superior, and he only wanted to " make fun " of the commander and his threat had the character " a joke ." In this case, during the questioning of the suspect (accused) is specified, or may be specific circumstances in chief reason to fear the threat of implementation . Attention is drawn to the soldier the objective side of his actions, the fact that the response to them was from the chief and others.

During interrogation, the culprit appears as if he was not going to carry out his threat , that does not actually intend to carry out the murder of the director as to cause him bodily harm or inflict blows.

Nomination versions and pre- planning inquiry. When investigating threats can be made ​​following versions:

1 ) The motive for the crime:

- Subordinate expressed threat of being dissatisfied with the chief official duties ;

- Subordinate expressed threat chief motives resulting from off-duty , personal hostile relationship.

Obviously, if it finds confirm the second version , the offense under Art. 405 of the Criminal Code would not.

2) For the purpose of offense :

- Subordinate was intended to intimidate the chief ;

- Slave sought to make a killing, causing bodily harm, beatings chief ;

- Slave tried to force the chief means of intimidation change its official activities in the future.

During the proof , say, the reality of the threat may be checked by the two versions:

- A real threat to the slave ;

- The threat slave has no real character.

Further investigation. To check the version outlined planned further investigative ( detective ) actions , including questioning witnesses , witnesses of crime.

1) The questioning of witnesses. During the interrogation of witnesses out the following issues: the nature of the relationship between superior and subordinate , which expressed a threat , or not allowed on wine wrongful acts , as treated their duties suspect ( accused ) as he responded to comments chiefs and older , which had relation to colleagues , which directly preceded the threat and it was driven , what are the causes of the crime committed , what words and expressions expressed a threat , or that accompanied it - do not be subordinate to the head of the requirements of the service , or used in this suspect ( accused ) weapons or other items , or the threat seemed real , action expected from the witness guilty when he threatened , interrogated or not going to assist the Chief in order to prevent crime , as the chief responded - or did he steps in response , if so , what they were expressed.

Witness , after which it was transferred to the chief threat may wish to report the perpetrator to the threat expressed his boss was known about its content , as well as the goals and motives , which he pursued and that guided by passing threat.

2) Other investigators ( ODA ) actions. Weapon ( machine, knife) , and other items, which was accompanied by a demonstration of the threat , removed , inspected and join the proceedings as evidence .

If the threat expressed in writing , you must take steps to identify and extract the letter containing the threat , as it will be important physical evidence in the case. Removed from a letter expressing threats presented for questioning its author , and he examined the circumstances of its writing, sending , and essentially threats.

Where necessary, the suspect removed free and experimental samples of handwriting, which together with found a letter sent to the handwriting expert . If the threat text printed on a typewriter or printer , then all typewriters and printers , which could access the suspect , take samples of fonts that are also sent for examination.

If there is reason to believe that the suspect ( accused ) suffers from a mental disease or a crime committed in a state of pathological intoxication appointed judicial - psychiatric examination.

The causes and conditions that contributed to the threat , as set by the relevant interviews and other military commanders , and with the help of army and naval community. Fact threats in order prophylaxis may be discussed at a meeting of personnel. One must pay special attention to identify and discuss the negative aspects of the behavior of a soldier, which led him to express threats boss. Such negative aspects may be a violation of statutory requirements , drunkenness, rudeness, arguing with commanders and others.

Features investigate violence against chief

Subject evidence in the case. During the investigation of these crimes are subject to proof such circumstances.

1) Did the scene of the crime , if so, who , who caused violence . Similarly, the investigation of other war crimes against the chain of command , there might service relationship between the victim and suspect (accused) , and - if there is one of them, boss, and the other slave.

2) The time and place of such actions . When you set the time and place of commission of the criminal acts of particular importance clarify the question under which circumstances made ​​these crimes, or was at that time at least one of them in the performance of duties and that in connection with the performance of duties from military service.

3) The method of committing violent acts. In the investigation established focus of criminal assault and its character. If it was caused by shocks, beatings , the specified quantity, consistency and strength.

4) the guilt of the suspect ( accused) of committing violent acts. As in the investigation of resistance during the investigation of violent action for superior, while proving the intent of the perpetrator turns out, whether he was aware that his criminal actions directed specifically against the officer or employee. Great help in establishing such circumstances can provide research motives and goals of crime.

5) The circumstances affecting the degree and nature of the liability of the suspect ( accused) . These circumstances similar to the circumstances at the time the chief resistance , forcing .

6) The consequences of the crime. As a result of the violent actions of the victim inflicted physical pain , the pain of varying severity of the injuries resulted in his uniform disrepair . In addition, violence undermines the credibility of official military man , especially if he is the boss.

Priority actions investigator. The nature and sequence of proceedings primary investigator ( detective ) action depends largely on the circumstances of the crime committed . In some cases it will review the scene, finding and extracting guns , and questioning of the victim, the person who committed the crime and witnesses. In other cases, the investigation should start with questioning the victim or a soldier who committed acts of violence , then it is necessary to examine the scene. For example , if there is reason to believe that in the case of delay in the examination of the scene may be lost traces of the crime , you must first conduct its review . In the absence of such concerns can be started from the interviews , and then to do an overview of the scene . In view of the scene investigation should be initiated in the event that the health of the victim can not be questioned.

Review. During the inspection of the site paid special attention to finding and securing traces of violent action on the chief or subordinate, as well as items with traces of the crime. Found and removed an instrument by which bodily harm , or established during inspection of the scene , certain facilities and areas, or by introducing a search of the soldier , who made the violence .

Clothes of the victim and the person who committed the crime , inspected and removed in all cases , if there is damage , spots and other signs of violence.

The examination of the victim. During interrogation, the victim revealed his attitude toward military man , who made illegal actions, or was he - not all of them at this time in the performance of duties of military service, or who served interrogated - not any duties in connection ' connection with the execution of which he had suffered injuries , beatings, vidshtovhuvan , obvious breasts and more. Which service activity preceded the criminal actions of the chief slave that was the reason and the reason for the crime , if there were between hostile personal relationship. If there were , it is necessary to clarify whether the criminal acts are based on these personal relationships. You also need to figure questioned whether he still allowed on soldier , who made violent acts and other violations of statutory requirements.

During interrogation studied in detail by sequencing of guilty of criminal acts , what they consisted of . Set as who else was involved in the crime or was nearby , as these individuals responded to the perfect manner in which the crime was committed . You also need to establish how the victim was wearing , whether it military insignia or uniform showed him that he is the boss and is in the performance of duties of military service. What injuries received interrogated whether he sought in this regard to health if he had no pain , is not prevented from discharging their duties .

The examination of a soldier who committed the offense. During interrogation soldier for allowing violence against superior, it appears about the same range of issues as the victim during questioning : how long it goes along with the head of military service for which allowed illegal actions that they have developed relationships what were the claims made ​​against him chief , does not admit that any violations of the statutory provisions in a relationship with him.

Then set the events immediately preceding the offense, reason and an excuse for inflicting physical violence. It is understood or was at that time the suspect ( accused ) or injured while performing the duties of military service , and what those duties were assumed in the form of clothing was suspect ( accused ) and the victim , is not caused injuries or beatings, other violent acts in connection with the duties of military service. How much was a blow , which specifically and with what force . Whether used with objects. What motives guided the offender and what goals pursued , committing illegal actions .

Building and planning future versions of the preliminary investigation . According to initial data is difficult to determine what was actually committed , that is worn or wrongful acts of nature resistance, whether they fall within the scope of Art. 405 of the Criminal Code . Therefore, the investigator after the primary investigator ( detective ) actions during the planning inquiry is necessary to promote investigative leads . Character versions depending on the available data the investigator and the particular circumstances of the criminal proceedings ( criminal proceedings ).

For example, in the case where the victim is a superior, can be determined following general version:

- Subordinate chief beatings inflicted or committed other acts of violence ;

- Subordinate chief caused the injuries .

Elucidating the relationship between the offender and the victim , it is necessary to investigate the following versions:

- Hitting boss or subordinate incurred in connection with the duties of military service;

- Slave beatings inflicted boss based on personal relationships and so hostile .

A further pre-trial investigation. According to the version put forward , the plan of investigation , and then carried out the examination of witnesses , the simultaneous examination of two or more persons are interrogated to determine the differences in their testimony ( confrontations ) searches expertise.

1 ) During the examination of witnesses out about the same issues and during questioning of the victim and suspect ( accused) .

2) If necessary, the suspect conducted a search for finding guns , traces of violent acts and more.

3) There may be a need for investigative experiment (play situation and circumstance ) to verify the statement of the suspect (accused) that during bodily injury , beating or other violent acts soldier he did not know who he is and whether it was last in the performance of duties of military service.

4) If necessary, the required expertise . To determine the nature and severity of the injury is made legal - medical examination . Before legal - medical expert may put other matters within its competence. For example , what tools and how long inflicted injuries , their localization sequence of causing bumps and more.

Subject to finding items that can be instruments of crime , the uniform trace similar to blood, appointed judicial - examination of physical evidence , the decision of which raises questions about the origin of these spots and their accessories.

If necessary, the appointed forensic examination to study at the scene found traces of a setting for parts.

Other acts of violence on the chief may be committed in conjunction with other crimes : failure to order, resistance, coercion and so on. In these cases it is necessary to clarify the circumstances to be proved for all crimes committed , guided by the method of investigation.

Conclusions. Knowledge of investigators and other law enforcement and judicial provisions methods of investigating war crimes involving threats or violence against the chief of criminal liability for which the century. 405 of the Criminal Code of Ukraine, will help conduct professional and thorough pre-trial investigation . This in turn will contribute to the objectives of the criminal proceedings under Art. 2 of the Criminal Procedural Code of Ukraine - the protection of individuals, society and the state of criminal offenses , protection of rights, freedoms and legitimate interests of the criminal proceedings , as well as providing a quick , full and impartial investigation and trial , so that anyone who has committed a criminal offense been held liable to the extent of his guilt , no innocent was not accused or convicted, no one had been subjected to unjustified procedural coercion and that each party to the criminal proceedings was applied due process .
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Карпенко М.І. Погроза або насильство щодо начальника: методика розслідування цих злочинів

^ У статті розглядаються питання, що є обставинами, які підлягають доказуванню в кримінальному провадженні в разі вчинення злочинів, передбачених ст. 405 КК України.

Ключові слова: погроза начальникові, насильство щодо начальника, військові злочини, методика розслідування.
^ Карпенко Н.И. Угроза либо насильственные действия в отношении начальника: методика расследования этих преступлени

В статье рассматриваются вопросы, которые являются обстоятельствами, что подлежат доказыванию в уголовном производстве в случае совершения преступлений, предусмотренных ст. 405 УК Украины.

Ключевые слова: угроза начальнику, насильственные действия в отношении начальника, воинские преступления, методика расследования.
Karpenko N. The threat or violence against a superior: a technique of investigation of these crimes

The paper explores the issues that are circumstances that are subject to proof in criminal proceedings for crimes under Art. 405 of the Criminal Code of Ukraine.

Keywords: chief threat, violence against a superior, military crimes, methods of investigation.



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