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1. Use of violence not dangerous to life or health, or threat of violence against a government official or his relatives in connection with the performance of his official duties -

shall be punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by forced labor for a term of up to five years, or by arrest for a term of up to six months, or by imprisonment for a term of up to five years.

2. The use of violence dangerous to life or health against the persons specified in part one of this article -

is punishable by imprisonment for a term of up to ten years.

Note. In this article and other articles of this Code, a representative of the government is recognized as an official of a law enforcement or regulatory body, as well as another official vested with administrative powers in accordance with the procedure established by law in relation to persons who are not officially dependent on him.

Commentary on Article 318 of the Criminal Code of the Russian Federation

1. This crime encroaches on the normal management activities of government officials. An additional object is the personal integrity and health of government officials and their loved ones.

2. The victim is a representative of the authorities, who, according to the note to the commented article, is recognized as: a) an official of a law enforcement agency; b) an official of the regulatory body; c) another official vested with administrative powers in relation to persons who are not officially dependent on him in accordance with the procedure established by law. In addition, relatives of these categories of persons may be victims of this crime.

3. The concept of an official is given in Note 1 to Art. 285 CC.

4. Law enforcement agencies - internal affairs bodies, the prosecutor's office, federal security service agencies, federal state security agencies, border service agencies of the Russian Federation, foreign intelligence service of the Russian Federation, customs authorities.

5. Supervisory authorities - tax authorities, immigration, sanitary-epidemiological, veterinary control, etc.

6. Other officials should include persons exercising legislative or executive power, vested with the right to make decisions binding on citizens, as well as organizations, regardless of their departmental subordination.

7. Violent actions against judges, prosecutors, investigators, investigators in connection with their administration of justice or the conduct of a preliminary investigation are qualified under Art. 296 of the Criminal Code.

8. On the concept of loved ones, see the commentary to Art. 317 CC.

9. Parts 1 and 2 provide for two independent elements of crime.

10. The objective side of the crime, liability for which is provided for in Part 1 of this article, is characterized by two alternative actions: a) the use of violence that is not dangerous to life or health; b) threat of violence.

11. Violence that is not dangerous to life or health should be understood as beatings or other violent acts associated with causing physical pain to the victim or restricting his freedom: tying hands, using handcuffs, leaving him in a closed room, etc. (clause 21 of the Resolution Plenum of the Supreme Court of the Russian Federation "On judicial practice in cases of theft, robbery and robbery").

12. The threat of violence should be understood as actions (for example, display of weapons) or statements by the perpetrator expressing the intention to use violence against a representative of the authorities or his relatives. The content of the threat can be different and can be expressed in the threat of beatings, causing harm to health of varying severity, or murder. In this case, it does not matter whether the perpetrator intended to carry out the threat, the main thing is that the victim perceives it as real.

13. Violence and threats are used against a government official or his relatives in connection with the performance of his official duties, i.e. regarding the performance of these duties.

14. The objective side of the crime provided for in Part 2 of the analyzed article is characterized by the use of violence dangerous to life or health, which is understood as such violence that resulted in the infliction of grave, moderate or slight harm to the health of the victim (clause 21 of the Resolution of the Plenum of the Supreme Court RF "On judicial practice in cases of theft, robbery and robbery").

15. The subjective side of the crimes under consideration is characterized by direct intent. In addition, within the meaning of the law, the perpetrator either pursues the goal of preventing a representative of the government from performing his official duties, or is guided by the motive of revenge for the performance of such duties.

16. The subject of a crime is a person who has reached the age of 16 years.

Currently, criminal prosecution is underway against the participants in the procession and rally on Bolotnaya Square on May 6, 2012 (“The May 6 Case”, “Bolotnaya Case”). In total, 19 people were brought to justice as suspects and accused in the case: a sentence was passed against Maxim Luzyanin (4.5 years in prison), 11 people are currently under arrest, 5 are under recognizance not to leave, 1 is under house arrest , 1 - on the federal wanted list. The main articles that are charged to the defendants in the case are Article 318, Part 1 of the Criminal Code of the Russian Federation (Use of violence against a representative of the government) and Article 212, Part 2, Part 3 of the Criminal Code of the Russian Federation (Participation and calls for mass riots).

In this study I would like to dwell in more detail on Article 318 Part 1

Article 318 of the Criminal Code of the Russian Federation. Use of violence against a government official

The use of violence not dangerous to life or health, or the threat of violence against a government official or his relatives in connection with the performance of his official duties, is punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period up to eighteen months, or forced labor for a term of up to five years, or arrest for a term of up to six months, or imprisonment for a term of up to five years.

The use of violence dangerous to life or health against the persons specified in part one of this article is punishable by imprisonment for a term of up to ten years.

We would like to separately emphasize that almost all the defendants in the case who are accused or suspected under this article (except for M. Kosenko) are charged with only Art. 318 Part 1 . - “The use of violence that is not dangerous to life and health, or the threat of violence,” i.e. There is no talk of using violence against police officers that could be dangerous to life or health.

Attention to this particular article of the criminal code is explained by several reasons. At a press conference on December 20, 2012, Vladimir Putin said:

Second, regarding who is in prison: I don’t think that for participation in mass actions, even if they were carried out in violation of the law, you should be sent to prison. This is my position personally, as the head of state and as a person who has a basic legal education. But - and I want to draw special attention to this - Battery against government officials is absolutely unacceptable.
You probably have respect for the legal system of the United States. Try to put your hand in your pocket and pull out something - you’ll immediately get a bullet in the forehead, without talking. And the policeman will be acquitted. There are very strict rules regarding law enforcement officials. Why does anyone think that it is allowed in our country to rip off shoulder straps, or hit in the face, or strangle a representative of the authorities? If you and I allow anyone to do this, regardless of the political views of these people, we will destroy the country’s law enforcement system.
Tomorrow they will say: go out into the streets yourself and fight - for example, with representatives of extreme nationalist movements. Do you approve of their activities? I think that - bearing in mind your liberal approach - it is unlikely. So they will say: “Take off your glasses and go there and fight them yourself.” You understand, we will destroy the police system. You need to approach this extremely carefully.
But I don’t know the details, I say sincerely, you named the names: on what grounds these people were detained and deprived of liberty during the investigation, but I’ll look. If it's related to what I said, I won't interfere. If it is simply due to the fact that they took part in these actions, I think that this is wrong, and in general in the future, of course, law enforcement agencies will have to keep this in mind.
http://www.kremlin.ru/news/17173

• The very next day, December 21, Alexey Polikhovich, a defendant in the Bolotnaya case, was charged under Article 318 Part 1. One of the police officers recalled that Polikhovich “hit him on the arm.” http://www.lenta.ru/news/2012/12/21/more/ In connection with the presentation of a new charge against Polikhovich, some people close to the defense in this case, in particular participants in the Rosuznik project, declare a connection between the new charge and words of V. Putin at a press conference (let me remind you that until December 21, Polikhovich was charged only under Article 212 Part 2 (“Participation in mass riots”).
• Immediately after the events on Bolotnaya Square, the press secretary of the Russian President Dmitry Peskov said that “For the wounded riot policeman, the livers of the protesters should be smeared on the asphalt” (quote from the words of deputy Ilya Ponomarev http://ilya-ponomarev.livejournal.com/482999.html) .

Thus, even from the description of these three quotes and events it follows that the main action that the participants of the march and rally on May 6 on Bolotnaya Square are charged with is “the use of violence against a representative of the authorities” - Article 318 part 1.

Here I would like to note that the main charge under Article 318 Part 1 is only in the information field. According to the Criminal Code of the Russian Federation, Article 212 (“Mass riots”) provides for a more severe punishment (from three to eight years under Part 2 - “participation in mass riots”), while under Article 318 Part 1 (“Use of violence against a representative authorities") - is punishable by imprisonment for up to five years.

Let's look at law enforcement practice under Article 318 Part 1 in more detail and answer the following questions:

• how often offenses falling under Article 318 Part 1 are committed, whether these violations are exceptional or whether this article is “popular”.
• what sentences are imposed on persons accused under this article, but who did not take part in any political actions
• what factors influence the imposition of a particular sentence against the accused under Article 318 Part 1
• what preventive measure is chosen for the accused under Art. 318 part 1, who did not take part in any political actions.

Assessment methodology.

• As a source of information about sentences under Art. 318 part 1 the website www.rospravosudie.com was used
• Mentions of certain analysis criteria in the texts of sentences were compared, the search was carried out using the search capabilities of the website www.rospravosudie.com
• There may be some distortions due to the fact that only some courts publish decisions in criminal cases in full. According to the website www.rospravosudie.com, today 50% of decisions in criminal cases are published on court websites.
• Possible statistical distortions associated with different ways of specifying search queries
• To control the results obtained using search queries, 100 (one hundred) sentences were manually analyzed from 11/15/12 to 12/28/12, separate tables and graphs were compiled from this sample, and the results were compared with the general search data.
• Only the first instance, to exclude the influence of cassation and appeals.
• Data for 2010-2012 - from the beginning of publication of court decisions on the website www.rospravosudie.com

Criteria for evaluation and analysis.

For statistical analysis and comparative assessment, the following criteria were taken to characterize the verdict and the criminal case:

• Punishment imposed following the consideration of a criminal case
• At the time of committing the crime under Article 318 Part 1, the defendant had a criminal record or an unserved suspended sentence
• Preventive measure applied to the accused during the investigation

Some sentences are discussed in detail, with additional descriptions of the case being considered, the characteristics of the accused, etc.

Results of the statistical study

Total information

Table 1.

In the further study, only sentences defined by the site as “convictions” were used, i.e. 5,681 convictions issued under Article 318 Part 1 were reviewed in the period from 2010 to 2012.

As part of the review of verdicts, one of the files contained a resolution to terminate a criminal case, which was erroneously distributed on the website in the “convictions” subsection. Thus, 5680 sentences were reviewed.

Punishments calculated based on the results of consideration of a criminal case according to search queries

Table 2.

Penalties calculated based on manual review of 100 sentences

Table 3.

Comparing the two tables, we see that the discrepancies present do not go beyond the permissible error; in general, manual checking fully confirms the data obtained using search queries.

General diagram of the distribution of sentences



Diagram 1

Thus, based on the results of considering the statistics of sentences, it can be argued that 86.6% of punishments for sentences under Art. 318 part 1 are not related to actual deprivation of liberty, 3.7% are related to serving a sentence in a penal colony, and only 9.7% of sentences are related to serving a sentence in general and strict regime colonies.

Then, 60 sentences were manually analyzed (20 sentences each for three cases - a colony-settlement, a colony of general regime, a colony of strict regime), in which the defendant is sentenced to actually serve a sentence in a colony-settlement or in a colony of general or strict regime for the presence or the defendants have no previous convictions, suspended sentences at the time of the crime, or unserved parole at the time of the crime.

Convictions in convictions with a real term with serving in a penal colony

Table 4.

Table 5.

Diagram 2

Diagram 3

Table 6.

Column 2 indicates the terms of punishment, taking into account the addition of unserved terms in the case of a suspended sentence or parole.

If there is a criminal record, the sentence is much more severe (up to 6.5 years, taking into account the unserved suspended sentence), In the absence of a criminal record, a sentence of 3-6 months is most often imposed.

Taking into account the fact that punishment in the form of time served in a colony-settlement is assigned in 3.7% of cases (see Table 2.3), we obtain that in the absence of a criminal record, the defendant receives a sentence in a penal colony in 1.85% of cases (further we round up to 2% ) and most often this period is 3-6 months.

Convictions in convictions with a real term served in general regime colonies

Table 7.

* - notes on the sentences: 1st sentence - a tangential collision with a police officer was committed, the policeman insisted on strict punishment, 2nd sentence - negative characteristics, tendency to drink alcohol (alcoholic)

** - for one sentence - at the time of sentencing - one defendant had 1 conviction, the second had no convictions, but the defendants (two people, the crime was committed by a group) were kept in custody and were awaiting trial, therefore it is indicated that there are two convictions.

Suspended sentences, parole, correctional labor in sentences for defendants with one or more criminal records

Table 8.

* - for one sentence - restriction of freedom instead of a suspended sentence

** - according to one sentence - there are two defendants, one has parole, the second does not.

Diagram 4

Diagram 5

Length of sentences depending on the presence or absence of a criminal record

Table 9.

* - after the verdict under Art. 318 part 1, a sentence was passed under another article, the total term after two sentences was 9 years

** - at the time of sentencing, the defendants were in custody and awaiting trial on serious charges, at the time of sentencing under Art. 318 part 1, a sentence on the first charge was not passed on one of the defendants, but on the second one it was passed (total term 18 years 9 months).

A general comparison of the columns of this table shows that in the absence of a criminal record, a sentence of imprisonment in a general regime colony is much less likely (10% - only two sentences) . The imposition of these sentences is characterized by additional circumstances: 1st sentence - the victim's demand for severe punishment , 2nd verdict - negative characteristics, drunkenness and alcoholism of the defendant . If there is a criminal record, sentences from 0.5 to 3.0 years are imposed.

Taking into account the fact that punishment in the form of a term with serving in a general regime colony is assigned in a maximum of 9.7% of cases (see Table 2.3, the maximum value is accepted - if we assume that there is 0% in a maximum security colony), we obtain that in the absence of a criminal record, the defendant receives a sentence in a general regime colony in 0.97% of cases (further rounded to 1% )

Convictions in convictions with a real term with serving in a maximum security colony

Table 10.

Suspended sentences, parole, correctional labor in sentences for defendants with one or more criminal records

Table 11.

Diagram 6

Diagram 7

Length of sentences depending on the presence or absence of a criminal record

Table 12.

A general comparison of the columns of this table shows that in the absence of a criminal record, there are no sentences with confinement in a maximum security colony (0%) . Punishment is imposed for a period of 3 months to 2.5 years (the term is taken into account only under Article 318 Part 1).

Percentage of sentences in the absence of previous convictions in the total number of sentences under Article 318 Part 1

Table 13.

Diagram 8

Calculation formula: N = N TOTAL* N JUDGE

N is the percentage of sentences where the sentence was served in a colony (settlement, general or strict regime) in the absence of previous convictions in the total number of sentences

NTOCH - percentage of sentences with sentences served in a colony (settlement, general or strict regime) (see Table 2, Diagram 1)

N CONVICTED - the percentage of sentences in the absence of a criminal record among sentences served in a specific type of colony (settlement, general or strict regime) (see Table 4,7,10, Diagram 2,4,6)

Preventive measure

Preventive measure, applied to the accused, calculated based on the results of the consideration of the criminal case according to search queries

Table 14.

Preventive measure, applied to the accused, calculated based on the results of a manual review of 100 sentences

Table 15.

Comparing the two tables, we see that there is a fairly significant discrepancy - the percentage in the “detention” line differs by 10%, taking into account the possible content in the “seized” column - 7%. However, despite this, in both tables the main pattern is observed - a significant predominance of recognizance not to leave as a preventive measure.

We can also conclude that, in general, manual verification fully confirms the patterns obtained using search queries.

General distribution diagram of preventive measures

Diagram 9

Sentences were then manually analyzed and the presence of previous convictions and the chosen preventive measure were compared.

Preventive measure depending on the presence or absence of previous convictions

Preventive measure in the absence of a criminal record

Table 16.

Diagram 10

Preventive measure with one conviction

Table 17.

Diagram 11

Preventive measure in the presence of two or more convictions

Table 18.

Diagram 12

Thus, if the defendant has no previous convictions, detention is chosen as a preventive measure only in 5% of cases . If you have a criminal record, this probability is 33-35%.

Criminal record as a preventive measure - detention

Table 19.

Diagram 13

Percentage of detention as a preventive measure, in the absence of previous convictions, in the total number of cases under consideration with a guilty verdict

Calculation formula: N = N TOTAL *N JUDGED

N is the percentage of cases with detention as a preventive measure, in the absence of previous convictions in the total number of cases under consideration.

N TOTAL is the percentage of cases with detention as a preventive measure in the total number of cases, excluding criminal records (Table 15, Diagram 9).

N CONVICTED - the percentage of cases in which the defendant does not have a criminal record, but detention in custody was chosen as a preventive measure (Table 19, Diagram 13).

Calculation. N = N TOTAL * N JUDGMENT = 0.16 * 0.25 * 100% = 4%.

Thus, we find that if the accused does not have a criminal record, the preventive measure in the form of detention elected 4% of the time.

This calculation roughly corresponds to the results of a manual analysis of 40 sentences in which the defendants did not have a criminal record regarding the choice of preventive measures. According to this calculation in the absence of a criminal record, detention is chosen in 5% of cases.

Preventive measure if the accused has no criminal record

Diagram 14

conclusions

1. About the nature and methodology of the research.
   Despite some shortcomings of the methods used in the analysis (partial (about 50%) publication of sentences, possible discrepancies in figures due to inaccuracies in search queries or removal of some data from sentences, a relatively small sample of sentences for manual analysis), the results obtained can be used for identifying basic patterns; the error in statistical studies is insignificant.
2. About the results obtained
   1. Sentences under Art. 318 Part 1 are widespread, in just two years 5,680 sentences under this article have been published, and a large amount of law enforcement practice has been developed regarding the application of this article. In the vast majority of verdicts, the actions of the defendants were not based on any political motives.
   2. When passing a sentence under Art. 318 part 1 in 86.6% the punishment is not related to imprisonment (suspended sentence or fine), in 3.7% of cases a sentence is imposed in the form of serving a sentence in a penal colony, in 9.7% - in a general or strict colony mode. At the same time, if the defendant has no previous convictions, a sentence not related to imprisonment is imposed in 97% of cases, with serving in a penal colony - in 2% of cases, in a general regime colony - in 1%, in a maximum security colony - 0% .
   3. In 84% of cases, a preventive measure is chosen that is not related to detention (undertaking not to leave, obligation to appear), in 16% - detention. At the same time, if the defendant does not have a criminal record, a preventive measure not related to detention is chosen in 95% of cases, detention is prescribed in 5%.

Conclusion

Based on the results of the study of sentences passed under Article 318 Part 1, it can be concluded that the use of violence against a representative of the authorities is undoubtedly a criminal offense (if the demands of the representative of the authorities were legal, and there was no corpus delicti or violations of instructions in his actions) and requires punishments. However, according to the laws of the Russian Federation and established law enforcement practice, in the overwhelming majority of cases (97%), when persons who have not previously been convicted are brought to justice, this punishment is not associated with imprisonment, and a punishment in the form of a real term with serving in a general regime colony is assigned in 1% of cases . In addition, in 84% of cases, the accused under this article is chosen a preventive measure not related to detention; for those who have not previously been convicted, this percentage is 95%, i.e. in relation to previously unconvicted defendants, arrest as a preventive measure is chosen only in 5% of cases.

Moreover, such law enforcement practice does not lead to “the collapse of the Russian law enforcement system” or to indignation or refusal by police officers to perform their official duties.

The “May 6 Case,” which served as the reason for this study, is extremely politicized; the situation surrounding the events that took place during the march is artificially aggravated by clashes between march participants and police and riot police officers. The media and the Internet create an artificial feeling that for assault against a police officer (even without taking into account the events that contributed to this assault and possible violations of the law and job descriptions by police officers), the accused should receive an extremely severe punishment, necessarily associated with imprisonment . However, according to the prevailing law enforcement practice in Russia, this is not the case. In 86.6% of cases, the punishment imposed under Article 318 Part 1 is not related to deprivation of liberty, and in the absence of a criminal record, this percentage is 97% (let me remind you that almost all the defendants in the “May 6 Case” have not been previously convicted, Maxim Luzyanin has an expunged criminal record dating back to 1998).

The use of violence against government officials requires a legal assessment and requires criminal punishment (if the actions of the police officers were also comprehensively reviewed, assessed and no crime was found in their actions). However, I would very much like that, when sentencing the defendants in the “May 6 Case,” the court would be guided by the laws of the Russian Federation and the law enforcement practice that has developed in the Russian Federation, and not by the laws of other countries, in particular the United States, the philistine understanding of these laws and the opinion that in the United States When communicating with the police, anyone can get a “bullet in the forehead,” no matter whose orders it is to “smear the livers of protesters on the asphalt,” opinion pumped up in the media and hysteria or political expediency. Along with protecting the safety of police officers, fair and independent consideration of the case in court, in compliance with all laws and taking into account established law enforcement practice, is the basis of the entire state system of any country living in the legal field.

RosUznik [email protected]@RosUznik

Dear experts, My son has been detained and has so far received 10 days of administrative arrest. A criminal case has been opened against him under Article 318 Part 2 (this is exactly what the operative officer answered me). After ten days, a decision on a preventive measure will be made.

Essentially: there was a massive fight in a cafe. The police and Cossacks were called. The son was drunk that evening.

In order to stop the madness, the policeman fired into the air. Gas was used.

Is there a video. The policeman passed an examination. Mild harm to health.

The policeman was not on sick leave and continues to work. And besides, the policeman has no claims for moral and physical damage. According to the police officer, my son hit (pushed) him and allegedly tried to grab the weapon after the first (only) shot..

My son says the opposite. That when they knocked him down and he lay handcuffed, recovering from the gas in his face, then a shot was fired.

There is no moment of the shot in the video, and my son did not hit anyone. It’s just clear that he was trying to separate the fight from different sides.

And this can be seen clearly and distinctly. Although there is no sound, the sign language is unambiguous (my opinion, of course).

A total of eight people were detained. Half of which are complete strangers to each other.

My son and another guy are accused. The rest will be released after seven days.

I repeat once again that the video shows that my son did not hit anyone, and there is no moment of the shot.

About my son: we don’t judge. There is not a single drive to the police shooting range. Married.

Three children: the eldest daughter is 7 years old. The youngest two are under five years old (4.8).

He served in the army, in Budenovsk. There is a letter of gratitude from the unit's command.

Works: permanent job as a foreman of convoy drivers (30 people). The reference from the place of work is good. The reference from the place of residence is not just good, but one might even say excellent.

Residents of our district, block and house committees directly ask the court for leniency towards the favorite of the entire district (this is really the case, without embellishment on my part). Please share your opinion with me.

Is there a possibility of a suspended sentence under Article 318 Part 2 of the Criminal Code of the Russian Federation?? Or will there definitely be a real sentence? And is this particular article charged correctly in its second part, or is there hope for requalification for part 1?

Required: Free advice

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