ON THE QUESTION OF CRIMINAL LIABILITY FOR ILLEGAL CIVIL DETENTION

Abstract

The article is devoted to the study of the possibility of qualifying illegal civil detention. It is indicated that civil detention, as a type of socially beneficial treatment of citizens, excludes criminal liability only if the legal conditions for detention are observed. It is noted that the actions of “civilians” related to civil detention cannot be included in the composition of the criminal offense provided for in Part 1 of Article 371 of the Criminal Code of Ukraine. It is emphasized that the sign of “intention” requires the subject of detention to be aware of the grounds for detention and its procedure. Therefore, such requirements are unacceptable for civilians in the context of the application of detention. It is emphasized that the subject of illegal civil detention must be general. As an exception, given the peculiarities of law enforcement practice, today, such subjects may also be officials who, due to the customs of law enforcement practice, are not perceived as officials authorized to carry out criminal procedural detention. It is noted that it is worth distinguishing the lawful actions of the victim and other persons immediately after the commission of the offense, aimed at detaining a person, from illegal actions that violate the procedure for civil detention and from unlawful actions that are covered by the crime provided for in Article 146 of the Criminal Code of Ukraine. It is proposed to introduce criminal liability for illegal civil detention, that is, such detention that is carried out contrary to the grounds established by law or contrary to the procedure established by law. Considering the possibility of introducing criminal liability for illegal civil detention of a person, it is seen that such a norm should be located in Section III of the Special Part of the Criminal Code of Ukraine. A proposal is made to supplement the Criminal Code of Ukraine with Article 1462 as follows: “Article 1462. Unlawful civil detention 1. Unjustified detention of a person on suspicion of committing a criminal offense, committed by an unauthorized official (a person who is granted the right by law to carry out detention) or in violation of the procedure for such detention, is punishable by probationary supervision for a term of up to three years, or restriction of liberty for the same term”.