Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.41 N° 77
Abril
Junio
2023
ISSN 0798-1406 ~ Depósito legal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión ycon fron ta cióndelasideas y avan ces cien tí fi coscon com pro mi soso cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nilda Marín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 41, Nº 77 (2023), 686-702
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 28/11/22 Aceptado el 28/01/23
Modern methods of crime prevention
related to the excess of ocial power or
authority in the law enforcement system
DOI: https://doi.org/10.46398/cuestpol.4177.45
Oleksandr Horoshynskyi *
Abstract
The general objective of the article was to discuss modern
methods of crime prevention related to the excess of ocial power
or authority in the system of public order. The methodological
basis of the study was the dialectical method of scientic
knowledge. Thanks to its application, legal and social phenomena
inuencing the actions of law enforcement ocers were analyzed.
In the interconnection, the statistical data of the survey, on the
judicial practice concerning the issues of abuse of power by law
enforcement ocers, were also studied. Over the past eight years,
391 judgments were rendered in Ukraine, 4258 decisions on procedural
actions during the consideration of oenses under Article 365 of the
Criminal Code of Ukraine. It is concluded that measures to prevent crimes
related to abuse of power should be comprehensive. In particular, they
must be eectively correlated with the legislative framework of the policy of
protection and prevention of abuse of power of the state.
Keywords: law enforcement ocer; excess of power; ocial powers;
legal principles; preventive measures.
Métodos modernos de prevención de delitos
relacionados con el exceso de poder o autoridad ocial en
el sistema del orden público
Resumen
El articulo tuvo por objetivo general discutir los métodos modernos
de prevención de delitos relacionados con el exceso de poder o autoridad
ocial, en el sistema del orden público. La base metodológica del estudio fue
* Postgraduate student of the Department of Criminal Law of the National Academy of Internal Aairs.
ORCID ID: https://orcid.org/0000-0002-7999-5789
687
CUESTIONES POLÍTICAS
Vol. 41 Nº 77 (2023): 686-702
el método dialéctico del conocimiento cientíco. Gracias a su aplicación, se
analizaron los fenómenos jurídicos y sociales que inuyen en la actuación
de los agentes del orden. En la interconexión, se estudiaron también los
datos estadísticos de la encuesta, sobre la práctica judicial relativa a las
cuestiones de abuso de poder por parte de los agentes del orden. En los
últimos ocho años, en Ucrania se dictaron 391 sentencias, 4258 decisiones
sobre actuaciones procesales durante el examen de los delitos previstos en
el artículo 365 del Código Penal de Ucrania. Se concluye que las medidas
para prevenir los delitos relacionados con el abuso de poder deben ser
integrales. En particular, deben estar efectivamente correlacionadas con el
marco legislativo de la política de protección y prevención de abusos de
poder del Estado.
Palabras clave: agente de la ley; exceso de poder; poderes ociales;
principios jurídicos; medidas preventivas.
Introduction
Law enforcement ocers have a wide range of functions and powers
to use force, detain or arrest oenders, conduct undercover investigative
actions to investigate crimes. During the execution of such powers, law
enforcement ocers are given considerable freedom of action. However, the
granting of broad discretionary powers leads to the question of the extent
to which law enforcement agencies use their functions and the legality of
exceeding their powers.
The current situation in the state has caused an increase in various types
of crimes. At the same time, economic circumstances force the authorities
to reduce the number of law enforcement agencies through layos, despite
the obvious growth in the need to protect the population. Protection of
public order and protection against this type of threats, such as meetings,
demonstrations, gatherings, requires employees to be prepared to risk
their own lives. A modern law enforcement ocer must protect against the
enemy in dicult conditions.
Crimes committed by law enforcement ocers are one of the most
dangerous social phenomena that have a negative impact on all spheres of
social relations and processes taking place in the state, as a result of which
stability and security in society is undermined.
Dierent attitudes of the public to the fact of excesses of power by law
enforcement ocers increase mistrust, hostility and violence among the
population.
Today, the problem of criminal acts of ocials becomes a transnational
problem and ceases to have a purely national aspect. Thus, the purpose of
688
Oleksandr Horoshynskyi
Modern methods of crime prevention related to the excess of ocial power or authority in the
law enforcement system
this article is to conduct a study of crimes related to the abuse of power or
ocial authority by law enforcement ocers and to determine the main
ways to avoid and prevent their commission.
1. Materials and methods
The methodological basis of the research was the dialectical method of
scientic knowledge as the main method of objective and comprehensive
analysis. Thanks to its application, legal and social phenomena aecting the
actions of law enforcement ocers were analyzed in relation to each other,
statistical survey data, judicial practice related to issues of abuse of power
by law enforcement ocers were studied.
2. Analysis and discussion of results
Over the past eight years, 391 verdicts were handed down in Ukraine,
and 4,258 decisions were made regarding procedural actions during the
consideration of crimes provided for by Article 365 of the Criminal Code of
Ukraine. The study of the Unied State Register of Court Decisions shows
that the largest number of sentences was pronounced in 2014 - 78, in 2015
- 58, in 2016 - 50, in 2017 - 46, the smallest number in 2018 - 28, in 2019
twice more compared to the previous year – 46, in 2020 – 38, in 2021 – 47
(Figure 1) (Unied State Register of Court Decisions, 2022).
Fig. 1 (developed by the author)
689
CUESTIONES POLÍTICAS
Vol. 41 Nº 77 (2023): 686-702
In recent years, it has become obvious that the abuse of authority by law
enforcement ocers is a widespread phenomenon and requires eective
methods of combating it. Such methods may depend on a number of
political, legal, and social factors.
The ght against this type of crime is one of the serious problems in
countries all over the world. Every law enforcement ocer must be aware
of the importance of due process. Abuse of power directly contradicts the
concept of proper legal behavior.
The activities of law enforcement ocers within the framework of their
functions are aimed at ensuring national security at all levels, ensuring
law and order, as well as protecting human rights, freedoms and interests
in society. Each state has its own structured system of law enforcement
agencies, which is clearly regulated by the current national legislation
(Smernytskyi, 2021).
Abuse of power or ocial position is interpreted as intentional, with
the aim of obtaining any unlawful benet for himself or another natural
or legal person, the use of power or ocial position by an ocial against
the interests of the service, if it caused signicant damage to the rights,
freedoms and interests of individuals protected by law citizens or state or
public interests, or the interests of legal entities (Chubenko et al., 2018).
Until 2014, the subjects of the specied type of crime could be any
ocials who were entrusted with the duties of implementing the functions
of state authorities. Such persons were dened as representatives of state
authorities or local self-governments who held positions related to the
performance of organizational-administrative or administrative-economic
functions in state authorities, local self-governments, state or communal
enterprises, institutions or organizations, and the excess of power or ocial
powers, the actions of an ocial who does not have ocial powers and
goes beyond his powers during the performance of his administrative and
economic functions, or the actions of an ocial who has powerful powers,
but in this case exceeds not them, but his other powers, were recognized , or
exceeds its authority over persons who are not its subordinates (Information
and consulting platform, 2018).
The question of the specicity of the denition of the subject of the crime
provided for in Article 365 of the Criminal Code of Ukraine was repeatedly
raised. Discussions among academics raised the question of why the
specied article stipulates responsibility specically for law enforcement
ocers, bypassing other ocials whose actions can have no less dangerous
social consequences. The legislator explained such measures by the fact that
in 2013, most of the crimes stipulated by Article 365 of the Criminal Code of
Ukraine were committed by law enforcement ocers (Paseka, 2017)
690
Oleksandr Horoshynskyi
Modern methods of crime prevention related to the excess of ocial power or authority in the
law enforcement system
E. Havroniuk (Havroniuk, 2014) claim that the intentional commission
of actions that obviously go beyond the limits of the given powers by another
public ocial in any eld, except for law enforcement ocers, can have only
administrative, disciplinary and civil legal responsibility, the possibilities of
which should be used to the full extent in all necessary cases through the
mechanisms provided for in the relevant normative legal acts.
In view of the above, the main dierences in the distinction between the
concepts of «exceeding power or ocial authority» and «abuse of power or
ocial position» are that an ocial illegally and contrary to the interests
of the service uses the rights and powers granted to him by law, as dened
in Article 364 The Criminal Code of Ukraine stated that the crime provided
for in Article 365 of the Criminal Code refers to the commission of actions
by a person who is superior to this department or an ocial of another
department.
In addition, the actions must be performed under those conditions, if
their performance is allowed only in special cases, that is, with a special
permit or an appropriate order. As for the subject, in this case, actions are
supposed to be performed individually, which should have been performed
only collegially. In addition, no one has the right to perform or allow such
actions.
From the moment of the initial codication until the entry into force of
the Criminal Code of Ukraine, the domestic criminal law did not contain
a legislative denition of a special subject of the specied type of crime.
However, the doctrinal analysis demonstrates that this concept was
developed by the science of domestic criminal law.
A special subject of a crime is a person who, in addition to general
features, has special features. They usually include: position, ocial duties,
demographic characteristics, membership in the service (Makarov et al.,
2019).
In the scientic literature, the term «law enforcement ocer» refers
to a person who puts the interests of society above his own. Legal and
professional training is an important prerequisite in the formation of law
enforcement culture (Sushytska et al., 2021). As mentioned earlier, law
enforcement ocers can exercise their own powers at their own discretion.
This practice sometimes leads to too much freedom of action, which
ultimately exceeds the limits of the necessary defense in critical situations.
Some scholars consider the necessary defense in two manifestations.
In the rst, as an individual way of protecting oneself or other persons,
the state from socially dangerous encroachments. In the second, as a way
to protect oneself during active actions from the side of law enforcement
ocers: oensive movement forward, and therefore, in the hands of law
enforcement ocers, there must be an appropriate and accessible toolkit
691
CUESTIONES POLÍTICAS
Vol. 41 Nº 77 (2023): 686-702
capable of meeting the ever-increasing demands of everyday criminal
reality (Miliukov, 2021).
Law enforcement ocers are usually empowered to detain persons who
have committed a crime. In those cases, if the detainee was harmed, which
clearly does not correspond to the nature and danger of the committed act,
law enforcement ocers must bear responsibility for this on an equal basis
with all citizens, and their position cannot be burdened only because they
are representatives of the authorities. Because police ocers’ risk their lives
while performing their duties.
The unconditional prosecution of representatives of law enforcement
agencies who, in the course of their duties, exceeded the limits of necessary
harm, to criminal liability under Articles 365 of the Criminal Code of
Ukraine, in fact, may lead to increased liability for exceeding the measures
necessary to detain the person who committed the crime. Under such
conditions, criminal liability may arise for causing any light damage,
regardless of the degree of the oense committed by the criminal.
According to sociological research, the level of trust of citizens in law
enforcement agencies in Ukraine in 2020 is 40.8%. Compared with other
European countries, this indicator reaches 39% in Hungary, up to 94% in
Finland. Compared to 2019, the number of cases of inappropriate behavior
by law enforcement ocers decreased from 20.2% to 9.6% (Klymenko,
2020).
In 1979, the United Nations General Assembly adopted the Code of
Conduct for Law Enforcement Ocials (Resolution GA 34/169), which
was the main instrument providing normative guidance to states on the
implementation of the role of the police in society. The articles of the Code
mark a signicant departure from the traditional, narrow denition to a
more «legal», broad understanding of the police as ocials who «serve»
the community.
In practice, the human rights approach to law enforcement involves
an obligation to refrain from unjustied restrictions on human rights;
take reasonable measures to ensure the exercise of human rights and take
positive measures to promote the exercise of human rights. For example,
this approach requires that law enforcement ocers do not unlawfully
restrict the right to assemble, and take the necessary measures to protect
those who organize a demonstration (United Nations Digital Library
System, 2019).
The excess of power can manifest itself in the form of the use of force,
manifestations of cruelty. One cannot fail to note that the use of force is a
necessary and legal tool for the work of a law enforcement ocer, given the
specics of his activity. Instead, the manifestation of «cruelty» is already
a conscious act of employees, who usually make great eorts to hide their
692
Oleksandr Horoshynskyi
Modern methods of crime prevention related to the excess of ocial power or authority in the
law enforcement system
misconduct. At the same time, the use of force can occur by chance, which
is explained by the problem of the lack of special professional skills. Thus,
“excessive force” can be cruel, involve malicious intent, or simply accidental
(Lourens, 2022).
Legislation of foreign countries dierently distinguishes such corpus
delicti as abuse of power or ocial position and abuse of power and
ocial authority, as evidenced by the analysis of the criminal legislation of
foreign countries (French Republic, Republic of Latvia, Georgia, Republic
of Estonia, Russian Federation, Republic of Estonia, Italian Republic)
(Nesterenko, 2021).
The American Police Foundation conducted a nationally representative
survey that revealed the attitudes of America’s police ocers on important
issues related to police overreach. As a result, it was established that
American law enforcement ocers believe that extreme cases of excess
of authority by the police do not happen often. At the same time, some
respondents conrmed that sometimes they have to use more force than is
allowed by law.
Despite a responsible attitude to legal norms that recognize the limits
of the powers of law enforcement ocers, the survey showed that it is not
unusual for police ocers to ignore the inappropriate behavior of their
colleagues. Most police ocers in the United States disapprove of the use
of excessive force.
Therefore, more than 30% of respondents expressed the opinion that law
enforcement ocers do not have the right to use as much force as is often
necessary when making arrests. Almost 25% believe that it is sometimes
permissible to use more force than is allowed by law in order to control a
person who physically assaults a police ocer.
Also, 22% of respondents indicated that ocers in their department
sometimes (or often) use more force than necessary, and only 16% reported
that they never did. Some respondents, almost 4 out of 10, reported that
constant compliance with the rules is incompatible with doing the job.
It is worth noting that American police ocers believe that training and
educational programs are an eective means of preventing the excess of
power by ocers (Weisburd et al., 2015).
Exceeding the powers of law enforcement ocer’s contrary to the
principles of legality, necessity and proportionality can lead to serious
violations of human rights. For example, illegal and arbitrary use of violence
may lead to violation of the right to life, arbitrary detention violates the
right to freedom and integrity. In addition, a warrantless personal search
can be a violation of freedom. Illegal actions can also manifest in the form
of arbitrary use of information obtained as a result of the investigation,
which is a gross violation of the right to privacy.
693
CUESTIONES POLÍTICAS
Vol. 41 Nº 77 (2023): 686-702
Values in law enforcement agencies are formed not only from normative
acts, but also from traditional culture. The management’s position regarding
the excess of power can signicantly aect the attitude of law enforcement
ocers to their powers. Mutual respect and cooperation between state law
enforcement agencies and the public are essential to ensure that security
needs are eectively met.
In recent decades, international and regional documents have paid more
attention to police accountability as a system that requires the involvement
of a variety of external and civilian oversight actors. In this regard, the
European Code of Police Ethics stipulates that: “The police should be
accountable to the various independent bodies of a democratic state, i.e. the
legislature, the executive and the judiciary” (Council of Europe, 2021: 16).
In the United States of America, there is a dedicated unit that employs
experts in police practice to help review law enforcement incidents,
documents and policies. These experts are involved in developing remedies
and evaluating compliance actions (Department of Justice, 2022).
Therefore, in the case of the use of force, the actions of a law enforcement
ocer must comply with the following principles:
1. Necessity. This principle contains mandatory interrelated elements:
the obligation to use non-violent means where possible; the obligation
to use force only for the legitimate purpose of law enforcement
agencies; and the duty to use only the minimum necessary force
that is reasonable under the circumstances. Whenever possible,
law enforcement ocers should use reasonable means to achieve
a legitimate law enforcement objective before resorting to physical
force. Such permissible means must be non-violent in nature and
may include the use of symbols of police authority: uniform, vehicle,
educational conversation, physical presence.
2. Legitimate purpose. The use of force must be carried out with a
corresponding purpose for the implementation of the functions
assigned to law enforcement agencies. That is, ocers must use such
force as is reasonably necessary under the circumstances to prevent
a crime or to eect or facilitate the lawful arrest of oenders.
3. Limitation. Impossibility of applying force to a person who does not
resist. Unnecessary use of force is obviously not legal.
4. Rationality. This principle is explained by the fact that the force
used should not exceed the minimum reasonably necessary under
the given circumstances, that is, be only to the extent necessary for
the performance of the duties of ocials.
5. Proportionality. This principle establishes a boundary between
what is considered the legal use of force and the threat posed by the
694
Oleksandr Horoshynskyi
Modern methods of crime prevention related to the excess of ocial power or authority in the
law enforcement system
oender. That is, proportionality does not mean that force must be
used by the law enforcement agency in strict accordance with any
continuous use of force (where the level of force increases in stages)
or as a similar response to violence by the suspect (UNODS, 2019).
Measures to prevent crimes related to abuse of power should be
comprehensive. In particular, they must be eectively correlated with the
legal framework of protection and prevention policy on the part of the state.
State measures, which consist in conducting a policy on the prevention
of oenses in the eld of law enforcement agencies, can aect the structure
and behavior of law enforcement ocers. Conducting internal audits at local
levels and strengthening reporting can have a positive impact on employee
accountability. Law enforcement ocers must pass expert checks during
internal disciplinary commissions. In addition, it is important to ensure
transparency during their conduct, so that the public can be sure that the
internal procedures are eective and fair.
The work of structural subdivisions should also take into account the
continuous training of employees, their evaluation and certication.
In addition to these measures, law enforcement ocers can also be
prosecuted in a civil lawsuit. These lawsuits can be led against persons
who, as a result of exceeding their authority and ocial duties, caused a
violation of the rights of citizens. Civil lawsuits are the main mechanism for
holding law enforcement ocers accountable for causing moral damage.
Provisions of the special Law of Ukraine «On the Procedure for
Compensation for Damage Caused to a Citizen by Illegal Actions of Bodies
Carrying Out Operative-Investigative Activities, Pretrial Investigation
Bodies, Prosecutor’s Oce and Court» dated December 1, 1994 No. 266/94-
ВР (The Law of Ukraine, 1995) and the Regulations on the Application
of the Law of Ukraine «On the Procedure for Compensation for Damage
Caused to a Citizen by Illegal Actions of Bodies Carrying Out Operational-
Investigative Activities, Pretrial Investigation Bodies, the Prosecutor’s
Oce and the Court», approved by the order of the Ministry of Justice, the
General Prosecutor’s Oce and the Ministry of Finance of Ukraine dated
03.04.1996 r. according to No. 6/5/3/41 (Order of the Ministry, 1996) the
right of a person to apply for compensation for damage caused by illegal
actions of employees of state authorities is determined.
In our opinion, the specied normative legal acts are outdated and do
not take into account all important aspects of the legal relationship arising
between the victim and the law enforcement ocer as a result of the latter
exceeding his powers.
An important measure is to strengthen community rights to record police
actions to promote accountability and encourage good law enforcement
behavior.
695
CUESTIONES POLÍTICAS
Vol. 41 Nº 77 (2023): 686-702
The provisions of the previously eective Order of the Ministry of
Internal Aairs of April 24, 2009 № 177 «On the organization of initial
training of employees of the internal aairs bodies of Ukraine» regulated
the procedure for applying mentoring. Therefore, a new employee was
initially attached to a specic mentor (Order of the Ministry, 2009).
The Order of the Ministry of Internal Aairs of Ukraine dated 16.02.2016
№.105 approved “ Regulations on the organization of initial professional
training of police ocers who have been recruited for the rst time in
police service” according to which “a mentor from among the members of
the management of the police body (institution, institution) is assigned to
the police ocer, where he serves, who monitors his performance of tasks,
organizes for him individual practical training in re, physical and tactical
training, which is provided for in the individual curriculum” (Order of the
Ministry, 2016).
The use of the mentoring institute is also followed in the provisions of
the Order of the Ministry of Internal Aairs of Ukraine dated 29.01.2018
No. 51, which approved the Concept of the introduction of a three-level
model of training of police ocers, which provides that after the end of
the initial professional training as a police ocer, for the next six months,
police ocers serve in junior police positions under the guidance of mentors
(Order of the Ministry, 2018).
O.M. Karpenko and E.S. Zelenskyi (Karpenko and Zelenskyi 2020) also
emphasize the need to introduce a mentoring institute in the system of law
enforcement agencies. According to scientists, the content of mentoring is
broad, and therefore should not be limited to the transfer of professional
knowledge, skills and abilities. The mentor should be an example for the
trainee to follow. Such imitation can concern not only professional, but also
personal, moral-willed qualities, civic and life position, conscious attitude
to ocial duties, etc. Also, the task of the mentor may be to help the intern
adapt to the conditions of service.
Mentoring in law enforcement agencies today is an important event that
aects the personnel system as a whole. This practice makes it possible
to adapt new law enforcement ocers to the specics of the profession,
reduce psychological pressure on them, and establish the correct values of
the chosen professional activity.
The experience of international states shows that cases of abuse of power
by law enforcement ocers are more common in developing countries.
For example, in the Republic of Kenya, abuse of power by law
enforcement ocers is commonplace. For a long time, there was a negative
practice that police ocers received bribes, unjustly accused and restricted
freedom, sometimes even took the lives of citizens, without fearing any
consequences, which clearly indicated abuse of power. The Kenyan
696
Oleksandr Horoshynskyi
Modern methods of crime prevention related to the excess of ocial power or authority in the
law enforcement system
population complains of helplessness and inability to protect themselves
and their loved ones. Between 2019 and 2021, nearly half a thousand police
killings were recorded in Kenya (IGM, 2021).
Given the powers vested in law enforcement agencies, it is undeniable
that the police are both the primary protection and threat in a democratic
society.
A law enforcement ocer cannot be a law in itself. Despite the strong
pressure, they should not act exclusively in accordance with the interests
of the authorities, since it is important to maintain neutrality between
political sentiments and the protection of citizens’ rights. For example, in
cases of rallies, demonstrations, and other disturbances, law enforcement
ocers should not take sides.
The universal attitude of law enforcement ocers to citizens indicates
equal law enforcement, which is a guarantee of a democratic society. Their
personal attitude should not dier from the requirements of the positions
they hold. The neutrality of a law enforcement ocer is when he simply
enforces the rules, regardless of the characteristics of the individuals or
groups who violate them.
However, there is another side to such a situation, where law enforcement
ocers cannot stand aside and be neutral, since they are a special body
entrusted with the functions of ensuring compliance with state legislation.
Police in the UK are distinctly non-military and local, although more
standardized than in the US. Responsibility for its control is shared
between the Ministry of the Interior of the national government, the local
police authority and the local police chief. There is no ocial bill of rights,
but generally the police do not exercise powers beyond their authority over
the average citizen, and the police are not armed. It is worth noting that
the state clearly emphasizes the need to observe internal organization and
self-control.
It is believed that citizens are responsible for participating in the
maintenance of law and order in their localities. Much attention is paid
to the symbolic value of law enforcement ocers as representatives of the
nation, and they are taught to see themselves as a model of moral behavior.
The development of British policing has been accompanied by constant
debate about how to protect democratic freedoms while remaining eective
in ghting crime and disorder. The Home Oce and the College of Policing
are working together to develop relevant national standards aimed at
improving the eectiveness of policing (Home Oce, 2022).
France’s law enforcement system is highly centralized, so it is less
focused on providing services to serve the population. The unied national
police system includes two components: the gendarmerie, which is part of
697
CUESTIONES POLÍTICAS
Vol. 41 Nº 77 (2023): 686-702
the armed forces, and the national police, which is part of the Ministry of
Internal Aairs. They are controlled at higher levels. Prosecutor’s oces
play an important role mainly in criminal proceedings. On the other hand,
the specic judicial system is not adversarial, so it is dicult for citizens to
le a complaint against the actions of the police. According to the French,
in order to protect democracy, the rights of society should prevail over the
rights of the individual (Gary, 1995).
In the Republic of Kazakhstan, the General Prosecutor’s Oce
developed a draft Concept and a draft Law of the Republic of Kazakhstan
«On Amendments and Additions to Certain Legislative Acts of the Republic
of Kazakhstan in connection with the introduction of a three-level model
with the separation of powers and spheres of responsibility between law
enforcement agencies, the prosecutor’s oce and the court».
The essence of this draft law is to coordinate all key procedural decisions
that are taken regarding the rights and freedoms of the citizen with the
prosecutor, as well as the adoption of procedural and nal decisions in
criminal cases at all stages of the pre-trial investigation, including the
election precautionary measures (Kulbaeva and Akhpanov, 2022).
Perhaps this practice will speed up the pre-trial investigation process,
however, in our opinion, the fundamentally important functions of the
procedural statuses of the subjects will not be demarcated in this case,
which will signicantly aect the powers of each of the aforementioned
participants.
O.M. Boboshko (Boboshko, 2018) emphasizes the need to distinguish
powers between special subjects. Taking into account the fact that the
current legislation does not clearly regulate the activities of pre-trial
investigation bodies when conducting investigative actions, there are cases
in practice when the rights and freedoms of citizens are violated. Under
such conditions, court bodies and prosecutor’s oces must denitely
exercise their supervisory and control functions.
The Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Oenders concluded that state governments should develop
the widest possible range of legal remedies and arm law enforcement
ocers with various types of weapons and ammunition that will allow
dierentiated use of force and rearms. Employees should be equipped
with non-lethal weapons that can stop an oender, but are not capable of
causing death or injury.
In addition, law enforcement ocers should be given the opportunity
to have self-defense equipment, such as shields, helmets, body armor,
and bulletproof means of transportation, so that there is no need to use
weapons. It was rightly noted that states should implement rules and
regulations regarding the use of force and rearms by law enforcement
698
Oleksandr Horoshynskyi
Modern methods of crime prevention related to the excess of ocial power or authority in the
law enforcement system
ocials. In developing such rules and regulations, governments and law
enforcement agencies must constantly consider ethical issues related to the
use of force and rearms (United Nations, 1990).
Conclusions
1. When applying criminal responsibility, each case of committing a
crime has its own individual characteristics, taking into account
those that individualize the person guilty of committing the same
crime. Each personality has specic characteristics that make up
its individuality. Such individualization is manifested in biological,
psychological, social and professional characteristics.
2. The threat to the life and safety of law enforcement ocers should
be considered as a threat to the stability of society as a whole,
taking into account that law enforcement ocers play a vital role in
protecting the right to life, liberty and personal integrity, guaranteed
by the Universal Declaration of Human Rights and conrmed in the
International Covenant on civil and political rights.
3. In the case of the use of force, the actions of a law enforcement ocer
must comply with the following principles: necessity, legitimate
purpose, limitation, reasonableness, proportionality.
4. Measures to prevent crimes related to excess of power should be
comprehensive. In particular, they must be eectively correlated
with the legal framework of protection and prevention policy on
the part of the state. As a result of the study, taking into account
international recommendations and the practice of foreign
countries, the following measures are proposed:
• conducting internal audits at local levels and strengthening
reporting.
• strengthening the rights of the community to record police
actions to promote accountability and encourage proper
behavior of law enforcement ocers.
• the active development of the institute of mentoring in law
enforcement agencies, which is currently an important
measure that aects the personnel law enforcement system
as a whole. This practice makes it possible to adapt new law
enforcement ocers to the specics of the profession, reduce
psychological pressure on them, and establish the correct
values of the chosen professional activity.
699
CUESTIONES POLÍTICAS
Vol. 41 Nº 77 (2023): 686-702
The experience of international states shows that cases of abuse of power
by law enforcement ocers are more common in developing countries.
Bibliographic References
BOBOSHKO, Olena 2018. “The mechanism of activity of law enforcement,
courts in pre-trial investigation of criminal corruption oenses” in: Lex
Portus. No. 01, рр. 153-164.
CHUBENKO, Anton; LOSHITSKYI, Mikhail; PAVLOV, Dmytro; BYCHKOVA,
Svitlana; YUNIN Oleg. 2018. “Terminological dictionary on prevention
and counteraction to legalization (laundering) of proceeds of crime,
terrorism nancing” In: Financing of proliferation of weapons of mass
destruction and corruption. Kyiv, Ukraine. р. 282.
COUNCIL OF EUROPE. 2021. Recommendation of the Committee of
Ministers to member states on the European Code of Police Ethics.
Available online. In: https://hrea.org/wp-content/uploads/2021/02/
Recommendation-Rec200110_European-Code-of-Police-Ethics_
Ukrainian.pdf. Consultation date: 03/11/22.
CRIMINAL CODE OF UKRAINE. 2001. Available online. In: https://sherloc.
unodc.org/cld/uploads/res/document/ukr/2001/criminal-code-of-the-
republic-of-ukraine-en_html/Ukraine_Criminal_Code_as_of_2010_
EN.pdf. Consultation date: 30/11/22.
DEPARTMENT OF JUSTICE. 2022. Conduct of law enforcement agencies.
U.S. Available online. In: https://www.justice.gov/crt/conduct-law-
enforcement-agencies. Consultation date: 09/11/22.
GARY, Marx. 1995. “Police and Democracy” In: Slightly longer version of an
article in the Encyclopedia of Democracy. Available online. In: https://
web-mit-edu.translate.goog/gtmarx/www/poldem.html?_x_tr_
sch=http&_x_tr_sl=en&_x_tr_tl=ru&_x_tr_hl=ru&_x_tr_pto=sc.
Consultation date: 30/11/22.
HOME OFFICE. 2022. England and Wales: 31 March 2021 second edition.
Available online. In: https://www.gov.uk/government/statistics/
police-workforce-england-and-wales-31-march-2021/police-workforce-
england-and-wales-31-march-2021. Consultation date: 09/11/22.
IGM. 2021. We won’t stop until police are protectors from violence and not
perpetrators of it. Available online. In: https://www-ijm-org.translate.
700
Oleksandr Horoshynskyi
Modern methods of crime prevention related to the excess of ocial power or authority in the
law enforcement system
goog/our-work/police-abuse-power?_x_tr_sl=en&_x_tr_tl=ru&_x_
tr_hl=ru&_x_tr_pto=sc. Consultation date: 10/11/22.
INFORMATION AND CONSULTING PLATFORM. 2018. “Interpretation of
the concepts of «ocial» and «ocial» used in the current legislation
of Ukraine” In: Zakon. Help. Available online. In: https://zakon.
help/article/tlumachennya-ponyat-sluzhbova-osoba-i-posadova.
Consultation date: 10/11/22.
KARPENKO OLEKSANDR, Zelensky Evgen 2020. “The phenomenon
of mentoring in the national police of Ukraine” In: Legal scientic
electronic journal. No. 08, pp. 280-282. Available online. In: http://lsej.
org.ua/8_2020/71.pdf. Consultation date: 10/11/22.
KHAVRONIUK, Myhailo. 2014. “Scientic conclusion on the method of
application of the Law of Ukraine” In: On Amendments to the Criminal
Code and the Criminal Procedure Code of Ukraine regarding the
implementation of the provisions of Article 19 of the UN Convention
against Corruption in the national legislation» of February 21, No.
746-VII. Available online. In: http://pravo.org.ua/ua/news/5059.
Consultation date: 03/11/22.
KLYMENKO, Ivan. 2020. “Assessment of the work of the National Police in
2020: results of a sociological study” In: Interfax-Ukraine. Available
online. In: https://ua.interfax.com.ua/news/blog/731177.html.
Consultation date: 01/11/22.
KULBAEVA, Maksym; AKHPANOV, Anton. 2022. “Judicial Control over
Criminally Remedial Measures of Restriction in Kazakhstan: Analysis
and Evaluation of Draft Law of a New Three-Tier Model” In: Access to
Justice in Eastern Europe. Vol. 04, No. 16, pp. 01-18.
LOURENS, Regina. 2022. Lawrence Making a Problem of Brutality. Oxford
University Press. Available online. In: https://academic-oup-com.
translate.goog/book/44514/chapter/376501727?_x_tr_sl=en&_x_tr_
tl=uk&_x_tr_hl=uk&_x_tr_pto=sc. Consultation date: 06/11/22.
MAKAROV, Andrey; PROTASEVICH, Alecsandr; ZHUKOVA, Alecsandra.
2019. “The special subject of the crime” In: All-Russian Criminological
Journal. Т. 13, No. 06, pp. 980-991.
MILIUKOV, Sergey 2021. “Non-obvious solutions to the problems of forceful
counteraction to crime” In: All-Russian Criminological Journal. Т. 15,
No. 01, pp. 36-45.
NESTERENKO, Anna; MARYNIAK, Nataliia; TRUSH, Marta; YESIMOV,
Serhii; BOHIV, Yaryna; PERVII, Vita. 2021. “Comparative analysis of the
701
CUESTIONES POLÍTICAS
Vol. 41 Nº 77 (2023): 686-702
essence of abuse of power in international legal sciences and Ukraine” in:
Cuestiones Políticas. Vol. 39, No. 70, 640-648.
ORDER OF THE MINISTRY OF INTERNAL AFFAIRS OF UKRAINE. 2016.
On Approval of the Regulation on the Organization of Initial Professional
Training of Police Ocers First Recruited to the Police» of 16.02.2016
№ 105. Available online. In: https://zakon.rada.gov.ua/laws/show/
z0576-16#Text. Consultation date: 10/11/22.
ORDER OF THE MINISTRY OF INTERNAL AFFAIRS OF UKRAINE. 2018.
On Approval of the Concept of Implementing a Three-Tier Model of
Police Training» of 29.01.2018 №. 51. Available online. In: https://www.
naiau.kiev.ua/terminovo/koncepciya-zaprovadzhennya-tririvnevoyi-
modeli-pidgotovki-policejskih.pdf. Consultation date: 11/11/22.
ORDER OF THE MINISTRY OF INTERNAL AFFAIRS. 2009. On the
organization of initial training of employees of internal aairs bodies of
Ukraine» of 24.04.2009 №. 177. Available online. In: https://zakon.rada.
gov.ua/rada/show/v0177320-09#Text. Consultation date: 10/11/22.
ORDER OF THE MINISTRY OF JUSTICE, the General Prosecutor’s Oce, the
Ministry of Finance of Ukraine. 1996. On Approval of the Regulation on
the Application of the Law of Ukraine on the Procedure for Compensation
for Damage Caused to a Citizen by Unlawful Actions of Bodies of Inquiry,
Preliminary Investigation, Prosecution and Court of 04.03.1996, №
6/5/3/41. Available online. In: https://zakon.rada.gov.ua/laws/show/
z0106-96#Text. Consultation date: 30/11/22.
PASEKA, Oleg. 2017. “Criminal liability for abuse of power or ocial authority
by a law enforcement ocer under the Criminal Code of Ukraine: basic
theoretical and applied problems” In: Scientic Bulletin of Lviv State
University of Internal Aairs. Legal series, Issue 3. С, pp. 166-175.
SMERNYTSKYI, Demian; ZAICHKO, Kostiantyn; ZHVANKO, Yurii; BAKAL,
Malvina. 2021. “Comparative analysis of the legislative support for law
enforcement agencies in the post-soviet space and Europe” In: Cuestiones
Políticas. Vol. 39, Nº 70, 524-547. Available online. In: https://doi.
org/10.46398/cuestpol.3970.31. Consultation date: 06/11/22.
SUSHYTSKA, Yulia; KUSHNIR, Daryia. 2021. Legal culture of law enforcement
ocers. Some aspects. Available online. In: https://conf.ztu.edu.ua/wp-
content/uploads/2021/10/39.pdf. Consultation date: 06/11/22.
THE LAW OF UKRAINE. 1995. “On the Procedure for Compensation for
Damage Caused to a Citizen by Unlawful Actions of Bodies Carrying Out
Operational and Investigative Activities, Pre-trial Investigation Bodies,
702
Oleksandr Horoshynskyi
Modern methods of crime prevention related to the excess of ocial power or authority in the
law enforcement system
Prosecutor’s Oce and Court of 01.12.94 № 267/94-ВР (entered into
force on 17.01.1995)” In: Information of the Verkhovna Rada of Ukraine.
Available online. In: https://zakon.rada.gov.ua/laws/show/266/94-
%D0%B2%D1%80#Text. Consultation date: 29/11/22.
UNIFIED STATE REGISTER OF COURT DECISIONS. 2022. Available online.
In: https://reyestr.court.gov.ua/. Consultation date: 30/11/22.
UNITED NATIONS DIGITAL LIBRARY SYSTEM (UNODS). 2019. «Topic
three - The general principles of use of force in law enforcement».
Available online. In: https://www-unodc-org.translate.goog/e4j/
zh/crime-prevention-criminal-justice/module-4/key-issues/3--the-
general-principles-of-use-of-force-in-law-enforcement.html?_x_tr_
sl=en&_x_tr_tl=uk&_x_tr_hl=uk&_x_tr_pto=sc. Consultation date:
30/11/22.
UNITED NATIONS. 1990. “Basic Principles on the Use of Force and Firearms
by Law Enforcement Ocials” In: Eighth United Nations Congress
on the Prevention of Crime and the Treatment of Oenders. Available
online. In: https://www-ohchr-org.translate.goog/en/instruments-
mechanisms/instruments/basic-principles-use-force-and-rearms-law-
enforcement?_x_tr_sl=en&_x_tr_tl=ru&_x_tr_hl=ru&_x_tr_pto=sc.
Consultation date: 30/11/22.
WEISBURD, David; GREENSPAN, Rosann; HAMILTON, Edwin; BRYANT,
Kellie; WILLIAMS, Hubert. 2015. “The abuse of police authority:
A national study of police ocers’ attitudes” In: National Policing
Institute. Available online. In: https://www.policinginstitute.org/wp-
content/uploads/2015/06/Weisburd-et-al.-2001-The-Abuse-of-Police-
Authority.pdf. Consultation date: 30/11/22.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en abril de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 77
