PROBLEMATIC ISSUES OF DISTINGUISHING CRIMES UNDER ARTICLES 342 AND 345 OF THE CRIMINAL CODE OF UKRAINE IN THE CONTEXT OF MOBILIZATION LEGAL RELATIONS

Abstract

The article addresses the problematic issues of distinguishing between the crimes provided for in Articles 342 and 345 of the Criminal Code of Ukraine in the context of mobilization legal relations. The relevance of the topic is determined by the gradual increase, since 2023, in the number of criminal offenses associated with resistance to representatives of authority and violence against law enforcement officers, which is especially notable against the background of a reduced statistical base of records compared with 2021. The authors emphasize that under conditions of mobilization and martial law the powers of authorized bodies expand, which objectively increases the risk of conflicts with citizens and complicates the correct criminal-law qualification of the relevant acts. On the basis of an analysis of legislation, doctrinal positions, and judicial practice, the article systematizes three principal approaches to the qualification of resistance combined with violence against a law enforcement officer: the absorption of violence by the elements of resistance; the mandatory cumulative qualification together with Article 345 of the Criminal Code of Ukraine; and a differentiated approach depending on the intensity of the violence and the direction of intent. The authors substantiate the advantages of the differentiated approach, which makes it possible to take into account the actual circumstances of each situation and to avoid both excessive criminalization and the unjustified exclusion of violent episodes from independent legal assessment. Particular attention is paid to the analysis of the objective and subjective features of the relevant elements of the offenses, as well as to the typical factual situations that arise during the implementation of mobilization measures, including the verification of military registration documents, the service of summonses, and the delivery of persons to territorial recruitment and social support centres. It is argued that the conduct of the offender often has an escalating character, when the intent is initially directed at resistance (Article 342) and subsequently at causing bodily harm or the threat thereof (Article 345). Taking this into account, the authors propose supplementing the elements of the offenses provided for in Articles 342, 343, and 345 of the Criminal Code of Ukraine with the qualifying feature of repetition, which would make it possible to assess the primary act independently and to evaluate the subsequent encroachments through this qualifying feature, thereby ensuring the completeness of the criminal-law assessment and the fairness of criminal liability. Prospects for further research lie in the unification of judicial practice, the development of official recommendations for qualification, and the legislative implementation of the proposed feature of repetition.