Commentary on Article 318 of the Criminal Code of the Russian Federation
1. The public danger of the crime provided for in the commented article is that it encroaches on the normal activities of state authorities and local self-government represented by government officials and on the health and bodily integrity of government officials and their loved ones.
The victims of the crime are government officials or their relatives. The note to the commented article provides a definition of a government representative. This is an official of a law enforcement or regulatory body, as well as another official vested in the established manner with administrative powers in relation to persons who are not officially dependent on him. From this definition it follows that a representative of the government: a) is an official (see commentary to Article 285); b) vested with administrative powers in relation to persons who are not officially dependent on him; c) represents a law enforcement (Ministry of Internal Affairs of Russia, FSB of Russia, customs authorities, foreign intelligence service of the Russian Federation, etc.), supervisory (fishery protection, sanitary and epidemiological supervision, environmental control, etc.) or other body (various levels of government bodies and local governments that perform government functions) (Articles 1, 2 of the Federal Law of April 20, 1995 N 45-FZ “On state protection of judges, officials of law enforcement and regulatory authorities” (as amended on December 25, 2012 ) <1>). The absence of these signs excludes liability under the commented article <2>.
——————————— <1> NW RF. 1995. N 17. Art. 1455; 1998. N 30. Art. 3613; 1999. N 2. Art. 238; 2003. N 27 (part 1). Art. 2700; 2004. N 35. Art. 3607; 2009. N 29. Art. 3601; 2011. N 1. Art. 16; N 7. Art. 901; N 50. Art. 7366; RG. 2012. N 301. <2> BVS RF. 2000. N 7. P. 14.
For the understanding of relatives of a government representative, see the commentary to Art. 317 CC.
Responsibility for the use of violence against a government official occurs only in cases of opposition to his legitimate activities.
If violence or the threat of violence is used against government officials participating in the administration of justice or in the conduct of a preliminary investigation, liability arises under Art. 296 of the Criminal Code.
2. The objective side of the crime is characterized by the use of physical or mental violence. Part 1 of the commented article talks about violence that is not dangerous to life or health. Its understanding is similar to the understanding of violence in Art. 161 of the Criminal Code (see commentary to this article). In this case, additional qualifications under the relevant articles of the Criminal Code are not required. Mental violence can be expressed in threats of violence <1>. The type of threat is not specified in the Criminal Code. The range of threats in the crime in question is much wider than, for example, in Art. 161 of the Criminal Code, up to death threats <2>, and additionally qualify such a threat under Art. 119 of the Criminal Code is not required.
——————————— <1> BVS of the Russian Federation. 2001. N 1. P. 12. <2> BVS RF. 2000. N 9. P. 8.
The methods of using violence can be very different. There must be a causal connection between the consequences and the use of violence.
The use of violence or threats of violence is carried out in connection with the performance by the victim of his official duties (and not only during their performance). This refers to any legitimate official activity, including those related to maintaining public order and ensuring public safety.
A crime is considered completed from the moment of the use of violence of appropriate gravity or the threat of its use.
The actions of a person who threatened several government officials in connection with the performance of their official duties, due to one motive, committed simultaneously, in one place, form a single crime and are qualified under one commented article <1>.
——————————— <1> BVS of the Russian Federation. 2009. N 5. P. 11.
The use of violence dangerous to life or health turns this composition into its qualified form (Part 2 of the commented article). Dangerous to life or health is an injury to health that causes a life-threatening condition that may result in death. Preventing death as a result of medical care does not change the assessment of harm to health as life-threatening. When violence is used that is dangerous to life or health, the victim may be harmed of any severity: severe, moderate and light. Additional qualifications under Art. Art. 111 - 113 of the Criminal Code in such cases is not required. For an understanding of these types of violence, see paragraph 21 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 27, 2002 N 29 <1>.
——————————— <1> See also: BVS RF. 2000. N 7. P. 14.
V. was convicted under Part 2 of Art. 318 CC. When he was brought by a road patrol inspector for a medical examination for driving a car while intoxicated, V. arbitrarily pulled out the keys from the car’s ignition, then began to strangle the inspector with his hands, pushed him out of the car, hit him on the head and other parts of the body with his hands and a cobblestone, causing minor harm to the victim with short-term health disorder <1>.
——————————— <1> BVS of the Russian Federation. 2002. N 4. P. 8.
Part 2 of the commented article also qualifies the use of violence dangerous to life or health, which, although it did not cause harm, at the time of use created a real danger to the life or health of the victim (clause 21 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of December 27, 2002 N 29 ). The actual occurrence of death is not covered by this composition and forms a set of crimes. Depending on the status of the victim, causing his death should be qualified under Art. Art. 105, 295 or 317 of the Criminal Code.
If violence was used in connection with the administration of justice to the victim or the conduct of a preliminary investigation, the act must be qualified under Art. 296 of the Criminal Code.
3. The subjective side of the crime is characterized by direct intent. A person is aware of the socially dangerous nature and range of violence or threats used by him, realizes that they are directed against a representative of the authorities (his relatives) precisely in connection with the performance of his official duties, foresees the occurrence of socially dangerous consequences and desires their occurrence <1>.
——————————— <1> BVS of the Russian Federation. 2001. N 7. P. 25.
4. The subject of the crime is a sane individual who has reached the age of 16. Persons aged 14 - 16 years are liable for such a crime under Art. Art. 111 - 113 CC.
