FIGHT IN A CAFE – HOOLIGANISM OR NOT?

Excessive consumption of alcoholic beverages during visits to cafes or restaurants systematically leads to conflicts between visitors to the institution. Such conflicts often turn into a fight, as a result of which the parties to the conflict not only inflict bodily harm on each other, but also from such conflicts harm others and the property of such an institution.

The actions of persons who take an active part in such fights inflict bodily harm on others at the same time, damaging or destroying the property of persons and / or institutions, qualify, as a rule, as hooliganism, responsibility for which is provided for by Article 2 of 96 of the Criminal Code of Ukraine.

In addition to hooliganism, in addition, the actions of the perpetrators can be qualified as intentional bodily injury of varying severity - from light to serious bodily injury, the responsibility for which is provided for by Articles 121 - 125 of the Criminal Code of Ukraine.

An interesting fact is that in order to qualify the actions of the guilty persons precisely under Art. 296 of the Criminal Code of Ukraine, it does not matter whether the working hours of the recreation center are over or not.

In this case, the courts take into account the circumstances of the commission of a criminal offense, in particular: the presence or absence of a gross violation of public order, combined with special audacity, committed out of obvious disrespect for society and influencing the work of the institution, appeared in the presence of a large number of visitors to the institution and attracted their attention, but were of a prolonged nature.

In this case, a gross violation of public order is a violation of those rules of conduct that are generally accepted norms of behavior in public places. At the same time, whether the institution continued to work outside of working hours or not does not affect the recognition of such an institution as a public place in the meaning of Art. 296 of the Criminal Code of Ukraine, which gives grounds to qualify the actions of the guilty person under Article 296 of the Criminal Code of Ukraine, that is, hooliganism.

Such conclusions, in particular, were reached by the Supreme Court as part of the panel of judges of the First Court Chamber of the Cassation Court in a decision of September 7, 2021 in case № 671/324/17, proceedings № 51-2697km21.

By this decision, the Supreme Court still upheld the verdict of the court of first instance and the ruling of the appellate court, and the defense lawyer's cassation appeal was not satisfied.

The Supreme Court rejected the arguments of the defense that the events took place after the time until which the institution was supposed to work (i.e. after 22 hours), and therefore the conflict did not disrupt the normal operation of the institution, indicated:

“... If a gross violation of public order, accompanied by special audacity or exceptional cynicism and was committed out of obvious disrespect for society was committed outside the working hours of the institution, but the institution worked and there were visitors, then such acts can be qualified as hooliganism. Formal recording of the time of completion of the work of an institution cannot be taken as a basis for qualifying actions as hooliganism. The composition of this criminal offense may also take place when there are visitors in the establishment outside of its working hours, and the establishment continues to carry out its activities. "

Also, in the aforementioned decision of September 7, 2021 on case № 671/324/17, the Supreme Court noted:

"Crossly violated public order, were combined with special audacity, committed out of obvious disrespect for society Such conclusions are due to the fact that the actions of the convict had a direct impact on the work of the institution, appeared in the presence of a large number of visitors to the institution and attracted their attention, the violation of public order wore a long character, since the conflict began in the bar and had an active continuation already on the street after the visitors left. from the institution. "

Taking into account the foregoing, according to the legal position of the Supreme Court, determined in the decision of September 7, 2021 in case № 671/324/17, as a general rule, a fight in a cafe or restaurant will qualify under Article 296 of the Criminal Code of Ukraine, regardless of whether or not the workers run out. institution hours or not.