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Extreme necessity is a situation in which harm caused to legally protected interests is inevitable when eliminating the danger that threatens the individual, his rights, other persons, state and public interests, which is due to the impossibility of eliminating the danger by other means. The main feature of this definition is the absence of the fact that the limits of extreme necessity have been exceeded.
Exceeding emergency limits
Exceeding the limits of extreme necessity is considered to be the infliction of harm that is clearly inconsistent with the nature and degree of the threatened danger and the circumstances in which the danger was eliminated, when harm was caused to the specified interests equal to or more significant than that prevented. Such an excess entails criminal liability only in cases of intentional harm.
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Concept of necessary defense
Having mentioned the state of necessary defense, let us understand the differences between extreme necessity and necessary defense.
A person’s behavior in a state of necessary defense is nothing more than an action, justified from a legal point of view, and aimed at protecting himself from an attacker by causing him harm.
The legality of the state of necessary defense is assessed based on the combination of the following conditions: the attack must be committed in reality and be real , i.e. have the beginning of action or be in a state of “about to begin.”
A person should begin to defend himself not when, for example, he is shot at or hit in the face, but when the reality of this arises . It is allowed to defend not only personal rights and interests established by law, but also the rights and interests of other citizens , even complete strangers.
In a state of necessary defense, harm is necessarily caused to the attacker. When defense is carried out without causing such harm, it is not recognized as a state of necessary defense.
In a state of necessary defense, the harm caused is directed exclusively to the attacker and no one else.
Lawyer's comments to Art. 39 of the Criminal Code of the Russian Federation
Actions taken in a state of emergency
Actions taken in a state of extreme necessity can be aimed at protecting any legally protected interest (both one’s own and someone else’s, public or state, to protect, for example, human life or health, property, etc.). Causing harm when absolutely necessary is allowed to eliminate the real danger created by a variety of sources, and not just a socially dangerous encroachment by a person, threatening the individual and the rights of the person or other persons who find themselves in such a state, the interests of society or the state.
Conditions for the legality of extreme necessity
The commented article defines the conditions for the legality of extreme necessity. The threatening danger must be immediate, imminent, i.e. if it is not eliminated, harmful consequences would immediately occur for the legally protected interests of the individual, society or state. A probable or possible danger does not create a state of extreme necessity. A mandatory condition justifying causing harm when absolutely necessary is that the threatened danger could not be eliminated by other means.
Exceeding emergency limits
At the same time, the law formulates the concept of exceeding the limits of extreme necessity (Part 2 of the commented article). To establish that the limits of extreme necessity have been exceeded, the existence of a state of extreme necessity is required, i.e. the presence of a danger that directly threatens a person or other socially significant benefits, and that this danger cannot be eliminated by other means, other than by causing harm. Otherwise, there is no state of extreme necessity and, therefore, there cannot be an excess of its limits. The law associates an obvious discrepancy between the harm caused and the nature and degree of the threat threatening and the circumstances under which the danger was eliminated, recognized as exceeding the limits of extreme necessity, with the deliberate infliction of harm to interests protected by criminal law equal to or greater than that prevented.
Determination of guilt
When comparing harm caused in a state of emergency with prevented harm to legally protected goods and interests, one should keep in mind the hierarchy of social values in a democratic society. A person, his rights and freedoms are the highest value (Article 2 of the Constitution). Consequently, in order to save the life and health of a person, one can sacrifice property and other interests protected by criminal law. Conversely, taking the life of a person or causing harm to his health for the sake of saving property, ensuring other interests of society or the state that were directly threatened, as well as for the sake of saving from the death of any other person or from causing the same harm to his health, should be recognized as exceeding the limits of extreme necessity. . The ratio of the amounts of harm caused and prevented in a state of emergency must be carried out taking into account the fact that exceeding the limits of extreme necessity entails liability under the Criminal Code only in cases of intentional harm. In case of criminally punishable exceeding of the limits of extreme necessity, the guilty person realizes that in order to eliminate the danger directly threatening the person and other legally protected benefits, he causes harm equal to or more significant than that prevented, willingly or consciously allowing it. In other cases (in case of frivolity, negligence), criminal liability is excluded. A person’s erroneous belief that he has caused harm to legally protected interests in a state of extreme necessity may exclude liability due to lack of guilt or entail liability only for a careless crime.
Mitigating circumstance
Violation of the conditions of legality of extreme necessity, i.e. exceeding its limits is considered as a circumstance mitigating punishment (clause “g”, part 1, article 61), and is qualified under the articles of the Special Part of the Criminal Code on intentional crimes.
A state of extreme necessity does not exclude civil liability for harm caused (see Article 1067 of the Civil Code).
On the pages of our website we provide complete and universal instructions on the sequence of actions in case of violation of your rights. However, only a few can independently and fully cope with the task of protection. The slightest errors in the procedure can lead to irreversible consequences that will be impossible to correct. The MIP Legal Group includes qualified, experienced lawyers in all areas of law who will help resolve any issues. You can always use the services of a criminal lawyer and be confident in the result.
The action of extreme necessity in space, time and in a circle of persons
The legislation on extreme necessity applies:
- in time - along with other actions defined by legislative acts and the Criminal Code, which is associated with the regulation of this concept as an integral part of the scope of criminal law;
- in space - on a par with the procedure for applying the legislation of the criminal branch to other actions, which indicates the recognition as actions committed as a result of extreme necessity, those committed within the borders of the Russian Federation and corresponding to the characteristics of this definition;
- by a range of persons - as actions committed in a state of extreme necessity are understood not only those acts that are committed by sane individuals of a certain age criterion, but also by insane persons, as well as persons who have not reached a certain number of years.
What is the difference
Outwardly, behavior delineated by the boundaries of the state of necessary defense and the state of extreme necessity look, at first glance, nothing less than an offense.
In fact, these actions are socially beneficial .
Let's consider the difference between necessary defense and extreme necessity.
In a state of necessary defense, harm is caused to a specific person - the source of the threat of attack or the one committing the attack itself. The harm caused to him in this case should be minimal.
Behavior in a state of necessary defense, as a rule, retains the ability to choose means to repel an attack. In a state of extreme necessity, harm is caused to other (third) persons. Those. innocent persons. These are not only individuals, but also legal entities. The amount of harm caused to another person should not be equal to or greater than the harm prevented.
So, the difference between necessary defense and extreme necessity is that behavior in a state of extreme necessity involves choosing only those means to eliminate danger that cause the least harm. And with the necessary defense, comparison of the harm caused with the harm prevented is excluded.
Who has the right to use extreme measures?
Absolutely any citizen can become the subject of the law, regardless of age, gender, or profession. Participation in eliminating a public danger is not an obligation. Representatives of some professions not only have the right to use the law, but also must take action that causes harm while preventing a greater danger.
For example, history knows a case when a train driver had to crash into a car crossing the railway tracks in order to save public transport passengers. In the event of emergency braking, the locomotive would overturn, which could lead to a crash. The court recognized that the driver’s actions were an extreme necessity. The Russian Federation supports its citizens in such situations, ensuring safety and compliance with laws in relation to them.
Degree of harm caused
The concept of “extreme necessity” is accompanied by the inevitable harm to third parties, which usually have nothing to do with the situation. The damage caused by the offender must be less than the consequences of the danger being prevented. When comparing the degree of harm caused, two factors are taken into account:
- quantitative nature (size and cost of damage);
- qualitative indicator (property damage, health damage).
There is no such thing in law as least necessary. An extreme measure is taken by a person in emergency conditions, when it is necessary to make an immediate decision. Often the course of action is formed in a stressful situation, when there is a lack of time or necessary information. Therefore, choosing the best option is subjective and is not assessed in sentencing.
The exception is situations in which the violator deliberately or knowingly made a decision to cause harm or damage to third parties.
Causing death as a last resort
The possibility of depriving a person of life in conditions of extreme necessity is controversial and is considered on an individual basis. Murder is considered an unacceptable act and carries criminal liability. Extreme necessity is a weighty argument for the court's leniency and is considered a mitigating circumstance. If it is proven that the victim’s death was unintentional, and the offender did not expect such an outcome, then “careless murder” will remain unpunished.
The death of one person is legally justified when it can save the lives of many. Sometimes you have to sacrifice the lives of several innocent victims in order to save more people. Thus, during the liberation of a school seized by terrorists in Beslan, extreme measures had to be used, which resulted in the death of about a hundred hostages. However, more than 700 people were saved. Fortunately, such cases are exceptional and extremely rare.
Example
An example of a state of extreme necessity is the behavior of a car driver in a situation where a precondition for an accident occurs (road traffic accident).
For example, a car drives in its own lane, without violating traffic rules, in a dense flow of traffic.
Oncoming traffic lanes are separated by a solid double line marking.
There is no traffic in the oncoming lane.
A truck moving on the right in the same direction as a car abruptly changes lanes into the car's lane, cutting it off.
To prevent a collision with a truck cutting him off and the vehicle following behind, the driver of the car allows driving beyond the marking line. The driver of the car violated traffic rules regarding the location of the car on the road, allowing it to drive beyond the marking line, but by doing this he avoided an accident that could have occurred during his other actions.
Types of threats
Causes of harm may arise from various circumstances. An emergency may arise in several cases.
- Technogenic danger. Problems with mechanisms, equipment or vehicles.
- Natural threat. Avalanches, fires, floods, earthquakes and other natural phenomena that pose a danger to the life and health of people, property or public activities.
- Human physiological processes. This category includes illness and childbirth. For example, in the case of a complicated birth of a child, the doctor has to make a choice between the life of the mother and the baby.
- A threat to innocent citizens posed by a person committing illegal acts.
- Provocation of necessary measures caused by negligence. If the goal was to deliberately cause harm to the public, criminal or administrative liability is provided in accordance with the law.
- Set of circumstances.
