Domestic Violence (Art. 1261 of the Criminal Code of Ukraine): Problems of Qualification

The article deals with the rules of qualification of actions related to domestic violence. Human rights to liberty and security, safe life conditions, respect for dignity guaranteed by Ukrainian Constitution and European Convention of Human Rights are not consistent with domestic violence which violates to some extend each of the mentioned rights. Domestic violence is not rare. Its expanding and serious negative consequence prove the currency of the research on domestic violence as a criminal offense. Ukraine has recently criminalized domestic violence, but national courts have already provided a sufficient among of judgement for this offense which enables to talk about the seriousness of this problem for our country. That is why while preparing this article national case law on bringing persons who committed domestic violence to criminal liability and further qualification of this action has been analyzed. Following the analysis, it has been concluded that there is a lack of unified approach of judges to qualification of the persons’ actions as domestic violence. There are judges who qualify this action according to cumulative crimes (for example under Art. 125 and Art. 1261 of the Criminal Code of Ukraine) and there are judges who qualify it under one article either under Art. 125 or Art. 1261 of the Criminal Code of Ukraine. The author challenges these two views and shares an opinion according to which the issue of qualification under cumulative crimes or without it should depend on public danger of committed action which is proved by more or less stricter sanction of the article comparing to Art. 1261 of the Criminal Code of Ukraine. Significant attention has been focused on characteristic of objective elements of crime provided for by Art. 1261 of the Criminal Code of Ukraine. Particularly, the main features of physical, psychological and economic violence have been investigated. Case law regarding identification of consistency in the person’s actions has been analyzed. Conclusion has been made that consistency is not only three and more actions, but similar actions and their general intent which characterizes the suspect’s behavior against his/her victim