DETENTION OF A PERSON WHO HAS COMMITTED A CRIME: FOREIGN EXPERIENCE OF REGULATION IN THE CRIMINAL LEGISLATION OF CERTAIN STATES OF THE EUROPEAN UNION

Abstract

The article deals with the issue of peculiarities of legislative regulation of such a circumstance which excludes criminal unlawfulness of an act as detention of a person who has committed a criminal offense in the criminal law of sixteen European Union States. It is established that in most of them (criminal codes of the Republic of Austria, the Republic of Estonia, the Kingdom of Belgium, the Kingdom of Denmark, the Kingdom of Spain, the Republic of Latvia, the Republic of Poland, the Republic of Croatia, Hungary, the French Republic, the Czech Republic) such a circumstance is not distinguished, but is assessed through the prism of the rules on necessary defense, extreme necessity, and execution of an order established by law. The detention of a person who has committed a criminal offense as a separate circumstance that excludes the criminal unlawfulness of an act is contained in the criminal codes of the Republic of Bulgaria and the Republic of Lithuania. These provisions are similar to the provision contained in Article 38 of the Criminal Code of Ukraine. Although the criminal legislation of the Federal Republic of Germany, the Italian Republic and the Kingdom of Norway does not provide for separate detention of a person who has committed a crime, the detention itself is subject to such independent circumstances which exclude criminal liability of a person, as infliction of bodily harm in the course of performance of official duties (Federal Republic of Germany), use of weapons (Italian Republic), and extension of the rules on necessary defense (Kingdom of Norway). Given the analysis, the author concludes that it is advisable to leave the detention of a person who has committed a criminal offense as an independent circumstance excluding criminal unlawfulness of an act in the criminal legislation of Ukraine. After all, this circumstance has such specific elements of corpus delicti, which are not covered by the elements of other circumstances which are distinguished in the Criminal Code of Ukraine.