Actus reus (material element) of unlawful deprivation of liberty or abduction

Abstract

The article examines the contested issues of the actus reus (material element) of unlawful deprivation of liberty or abduction based on an analysis of criminal law, case law and special literature.
 The scientific perspectives on the differences between unlawful deprivation of liberty or abduction have been analyzed. It is concluded that abduction and unlawful deprivation of liberty, not related to abduction, are very similar in their actus reus (material elements). The differences between them are insignificant and are, first of all, that abduction of a person is impossible without moving that person beyond the place where he/she willingly resided. At the same time, it is emphasized that any abduction of a person is undoubtedly an act of unlawful deprivation of his/her liberty.
 It has been concluded that the act in question, both in the form of unlawful deprivation of liberty and in the form of abduction, should be considered as completed from the moment when a person was actually deprived of his/her freedom of movement.
 It has been proven that unlawful deprivation of liberty or abduction is a continuing crime. This means that from the moment of actual deprivation of a person’s freedom of movement, the said action continues for a long time at the stage of the completed crime until the victim is released (is able to escape, is voluntarily released by the guilty or law enforcement officials).
 Both in the case of abduction and unlawful deprivation of liberty not related to the abduction, different ways of committing these offenses are possible. The most common way is the use of physical violence; it is noted that this method is more characteristic of abduction.
 It is concluded that unlawful deprivation of liberty or abduction, like any other act, is always perpetrated in a certain place, which may have probative or other procedural significance. However, the place of unlawful deprivation of liberty or abduction is of no importance for the qualification of the crime in question.
 It is emphasized that there is no need to separate the abduction of a person into an independent article of the Criminal Code of Ukraine. The author argues that the respective step of the legislator will not improve the law enforcement practice, but on the contrary – will complicate it.
 Since it is impossible to abduct a person without unlawfully depriving him/her of liberty, the use of the conjunction “or” in Art. 146 of the Criminal Code of Ukraine is determined to be obviously improper. In this regard, the name of Art. 146 of the Criminal Code of Ukraine, as well as the disposition of Part 1 thereof, are set out in a new wording.