Abstract

In this study it is mentioned that in the judicial practice there is no unitary point of view regarding the classification of actions that grossly violate public order, accompanied by the application of violence that exceeds the violence absorbed by the hooliganism offense (art.287 of the Criminal Code). While some instances (the minority) have estimated that in the given situation the liability is to be incurred under art.354 „Minor Hooliganism” of the Contravention Code and, as the case may be, according to criminal norms that incriminate murder or intentional harm average of body integrity or health. On the contrary, other courts (most) applied the rules of the crime contest and qualified the perpetrator’s conduct according to the constitutive elements of the hooliganism offense and, at the same time, depending on the degree of severity of the violence applied, the intentional murder otherwise serious or medium injury to body or physical integrity or health. In turn, the Supreme Court of Justice, instead of concentrating its efforts to eliminate these contradictions, has further amplified the existing jurisprudential divergences by providing two antagonistic explanations, one of which is not based on legal provisions. It is argued that murder or intentional harm to body integrity or health may be the violence that is being applied in the gross violation of public order. In this case, the qualification must be made under art.145, 151 or 152 of the Criminal Code and art.354 of the Contravention Code. Thus because, once applied, violence can’t be considered twice in qualifying: the first time as an expression of the offense specified in art.145, 151 or 152 of the Criminal Code; the second time as part of the offense provided by art.287 of the Criminal Code. Such a qualification by contest simply lacks the content of violence regarded as part of the hooliganism offense. Double punishment for the same violence is inadmissible. Finally, it is emphasized that it is imperative to unify judicial practice, proposing solutions in this respect.

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