Article 41 of the Criminal Code of the Russian Federation. Justified risk

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Article 41 of the Criminal Code of the Russian Federation. Justified risk

1. It is not a crime to cause harm to interests protected by criminal law at a reasonable risk to achieve a socially useful goal.

2. The risk is recognized as justified if the specified goal could not be achieved by actions (inactions) not related to the risk and the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law.

3. A risk is not considered justified if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a social disaster.

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Comments on Article 41 of the Criminal Code of the Russian Federation

Risk means an act that can lead to an unfavorable outcome, causing harm, but the risk taker hopes for a positive outcome, to achieve the required result.

Article 41 of the Criminal Code of the Russian Federation regulates situations in which actions associated with risk led to damage. Formally, such an act may mean the presence of a certain crime and, accordingly, the onset of criminal liability. However, taking into account the possible social significance of actions associated with risk, the legislator establishes a number of conditions under which the actions of the person who caused harm during the risk are not recognized as a crime.

Justified risk is possible in any field of professional activity: in science and technology, in medicine, in production, in commerce, in sports and in everyday life.

Commentary to Art. 41 of the Criminal Code of the Russian Federation

A socially useful result sometimes cannot be achieved through actions (inaction) that are not associated with justified risk. Risk means an act that can lead to an unfavorable outcome, causing harm, but the risk taker hopes for a positive outcome, to achieve the required result.

Article 41 of the Criminal Code of the Russian Federation regulates situations in which actions associated with risk led to damage. Formally and in essence, such an act may mean the presence of a certain crime and, accordingly, the onset of criminal liability. However, taking into account the possible social significance of actions associated with risk, the legislator establishes a number of conditions under which the actions of the person who caused harm during the risk are not recognized as a crime.

The first such condition is the target orientation of actions associated with risk. These actions must necessarily be aimed at achieving a socially useful goal. This means that the predicted but not achieved result could be useful to the whole society or a significant part of it. For example, the introduction of a new effective medical drug, the development of a new energy source, the creation of new transport communications, etc. At the same time, personal interest in the result does not at all exclude the social usefulness of the goal, but, on the contrary, often accompanies it.

The second condition for the legitimacy of a risk is its validity. The concept of validity is given in Part 2 of Art. 41 of the Criminal Code of the Russian Federation. This provision states that a risk is recognized as justified if a socially useful goal could not be achieved by actions (inactions) not related to the risk and the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law.

Thus, the risk validity factor is also determined by two conditions. Firstly, it is the impossibility of achieving a goal through actions that do not involve risk. This requirement of the law, in our opinion, does not mean that there is objectively no way to achieve a goal in a specific situation otherwise (without risk). This requirement forces a person who is going to carry out an act associated with risk to consider possible options for achieving the goal and, if possible, choose an option that does not involve risk. The subjective factor is important when determining the condition under consideration. Thus, if a person is convinced that he has chosen the only possible option of behavior and his consciousness does not, could not and should not have embraced the possibility of other less risky options, in our opinion, we should talk about compliance with the condition of the impossibility of achieving the goal by actions not associated with risk, despite the objectively existing possibility of such an option.

The second condition for the validity of the risk is the adoption of sufficient measures to prevent harm to the interests protected by criminal law. With any measures involving risk, there is a possibility that, as a result of the actions taken (inaction), harm will be caused to the interests protected by criminal law. The absence of such a probability would mean the absence of risk. However, if, despite the measures taken, harm was still caused, it means that objectively the measures to prevent harm were insufficient. Is it possible in this case to talk about the sufficiency of these measures, as required by law? Probably yes. But in this case, one should also turn to the person’s subjective perception of the factor of the sufficiency of measures to prevent harmful consequences. A person must be aware that he has taken all, in his opinion, necessary and possible measures to prevent harm or reduce it to a minimum level.

A risk is not considered justified if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a social disaster.

The concept of a threat to the lives of many people is not defined in law. There are no clear criteria in judicial practice, but basically the content of this concept includes the existence of a threat to the lives of more than two persons.

An environmental disaster means the presence of significant damage caused to nature, as a result of which populations of organisms, their species, communities cease to exist or are reduced to critical sizes, and an imbalance occurs in the ecosystem or biosphere as a whole.

A public disaster (earthquake, flood, fires, epidemics, etc.) represents conditions under which the normal functioning of state and public institutions and the population is significantly disrupted, creating a danger of loss of life and property.

Under such conditions, the risk cannot be justified by the social significance of the result. The possibility of causing the specified large-scale harm, the person’s awareness and anticipation of such consequences, in the opinion of the legislator, make the risk unreasonable, which entails criminal liability.

Failure to comply with the conditions for the legitimacy of a justified risk means the absence of this circumstance as a circumstance excluding the criminality of the act. In such a situation, the act will contain signs of a certain corpus delicti, but the commission of a crime when the conditions for the legitimacy of a justified risk are not met should be considered as a circumstance mitigating punishment (clause “g”, part 1 of article 61 of the Criminal Code of the Russian Federation). In this case, the crime committed can be either intentional or careless. Failure to comply with the conditions for the validity of the risk is possible in situations where a person commits any actions (inaction) aimed at achieving a socially useful goal, but this goal could have been achieved in the absence of risk or when the person did not take sufficient measures to prevent harm to protected persons criminal law interests, despite the fact that there was a real opportunity to take such measures.

Justified risk should be distinguished from the institution of extreme necessity. With a justified risk, a person causes harm in conditions of its probability or the absence of immediate danger, when the danger of harm is a consequence of the actions of the person himself. Causing harm in conditions of extreme necessity, on the contrary, is carried out when there is an immediate danger, which, as a rule, does not arise in connection with the actions of a person.

Conditions for the legality of actions in case of justified risk:

Target orientation of actions . The risk must be associated with the achievement of a socially useful goal . This means that the predicted but unachieved result could be useful to the whole society or a significant part of it. For example, the development of a new energy source, the creation of new transport communications, etc.;

The inability to achieve a goal through actions that do not involve risk . The risk must be forced , i.e. a socially useful goal is unattainable through non-risky actions. The subjective factor is important when determining the condition under consideration . Thus, if a person is convinced that he has chosen the only possible option of behavior and his consciousness does not, could not and should not have embraced the possibility of other less risky options, in our opinion, we should talk about compliance with the condition of the impossibility of achieving the goal by actions not associated with risk, despite the objectively existing possibility of such an option;

Taking sufficient steps to prevent harm . Those at risk must take sufficient measures to prevent harm to legally protected interests. In this case, a person should not act at random, but with a calculation of possible options for the development of events, taking measures to prevent the onset of harmful consequences. The sufficiency of the measures taken is assessed according to a subjective criterion , i.e. according to the conviction of the risk subject, taking into account his education and experience; according to his assessment of the situation and the degree of likelihood of harmful consequences;

Absence of threats to life, ecology and society . The risk must not be obviously associated with a threat to the lives of many people, an environmental disaster or a public disaster. The presence of threats of this kind excludes the justification of the risk, and the occurrence of any, regardless of their severity, socially dangerous consequences entails criminal liability for causing harm through negligence and, in more rare cases, for intentional (with indirect intent) causing harm.

Compliance with the above conditions for the legality of actions with a justified risk excludes criminal liability for causing harm, including if the harm caused was greater than the social benefit that would have been achieved if the risker’s actions were successful.

Commentary to Art. 41 Criminal Code

1. The conditions for the legality of actions in the event of a justified risk are as follows: a) the risk must be associated with the achievement of a socially useful goal; b) the risk must be forced, i.e. a socially useful goal is unattainable through non-risky actions; c) those at risk must take sufficient measures to prevent harm to legally protected interests. In this case, a person should not act at random, but with a calculation of possible options for the development of events, taking measures to prevent the onset of harmful consequences. The sufficiency of the measures taken is assessed according to a subjective criterion, i.e. according to the conviction of the risk subject, taking into account his education and experience; according to his assessment of the situation and the degree of likelihood of harmful consequences; d) the risk must not be obviously associated with a threat to the lives of many people, an environmental disaster or a public disaster. The presence of threats of this kind excludes the validity of the risk, and the occurrence of any socially dangerous consequences, regardless of their severity, entails criminal liability for causing harm through negligence and, in more rare cases, for intentionally causing harm.

2. Compliance with the above conditions for the legality of actions in the event of a justified risk excludes criminal liability for causing harm, including if the harm caused was greater than the social benefit that would have been achieved if the actions of the risker were successful.

3. In contrast to extreme necessity, justified risk is associated with the risker’s independent creation of a source of danger (which is his act), while extreme necessity is associated with the elimination of a source of danger that has arisen externally.

In what cases is a risk considered unreasonable?

Part 3 of Article 41 of the Criminal Code of the Russian Federation provides for conditions under which, in any case, the risk is considered unreasonable: if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or social disaster.

Knowing means that a person foresees and consciously allows for the possibility of the occurrence of the specified consequences before committing all planned actions.

The concept of a threat to the lives of many people is not defined in law. There are no clear criteria in judicial practice, but basically the content of this concept includes the existence of a threat to the lives of more than two persons.

An environmental disaster means the presence of significant damage caused to nature, as a result of which populations of organisms, their species, communities cease to exist or are reduced to critical sizes, and an imbalance occurs in the ecosystem or biosphere as a whole.

A public disaster (earthquake, flood, fires, epidemics, etc.) represents conditions under which the normal functioning of state and public institutions, the normal functioning of the population is significantly disrupted, and a danger of loss of life and property is created.

Committing a crime in violation of the conditions of legality of a justified risk is considered as a circumstance mitigating punishment (clause “g”, Part 1, Article 61 of the Criminal Code of the Russian Federation).

Article 41 of the Criminal Code of the Russian Federation. Justified risk

1. The risk is recognized as justified if the specified goal could not be achieved by unrelated actions (inaction), and the person who allowed it took sufficient measures to prevent harm to the interests protected by criminal law. A risk is not considered justified if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a social disaster.

2. The concept of “many people” cannot be clearly defined. Some lawyers have expressed the opinion that “many” in this case means at least three. However, in cases where the legislator has in mind several protected values, he uses different expressions. The content of this term covers a significant number of people.

3. A useful goal may be the desire to save a person, develop a new treatment method or production technology, or obtain a new scientific or significant economic result.

A goal cannot be considered socially useful when a person strives for personal self-affirmation. In judicial practice, there was a case when the pilot-in-command decided to land at the airport with curtained windows, not seeing the landing strip, which is strictly prohibited by the rules. Thus, the pilot wanted to demonstrate his flying skills in front of other pilots from the crew. During landing, the pilot lost his bearings, the landing occurred at a high vertical speed, and the landing turned into a disaster. There is no justification for such an insane risk. The pilots of the plane were prosecuted and convicted of violating flight safety regulations.

4. A risk is recognized as justified if a socially useful goal could not be achieved by actions (inaction) not related to risk. This requirement means that a person who takes risks in the name of a socially useful goal does not have a real opportunity to achieve it in another, non-risky way. It should be emphasized that we are talking about a real possibility.

5. The person who allowed the risk must take sufficient measures to prevent harm to the interests protected by criminal law. This requirement is organically connected with the previous condition of the legitimacy of the risk. These measures are dictated by specific conditions and circumstances.

6. The law does not limit the areas of activity where risky actions can be committed. Risky actions can be committed both in economic and in any other field of activity, in particular in science and technology, medicine, sports, space exploration, and everyday life.

Justified risk and extreme necessity

If absolutely necessary, harm is caused to eliminate an external source of danger that directly threatens the individual, his rights and other legally protected interests. If there is a justified risk, such an immediate danger may not exist (for example, when testing new equipment) or it may only be probable. In contrast to extreme necessity, justified risk is associated with the risker’s independent creation of a source of danger (which is his act).

In addition, if absolutely necessary, the harm caused must be less than the harm prevented, whereas with a justified risk, the amount of harm is not decisive for assessing the actions of the risker.

Commentary on Article 41 of the Criminal Code of the Russian Federation

A risk is not considered justified if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a social disaster.

Commentary on Article 41

1. The article under comment formulates a new circumstance previously unknown to Russian criminal legislation. The purpose of creating this norm was to eliminate the influence of criminal law as a brake on the development of progress, not to tie the hands of people who know how to take responsibility for new non-standard solutions to a particular problem. At the same time, the law must protect society from the adventurous actions of ambitious, frivolous people who cause damage in the pursuit of personal success.

The risk discussed in the commented article can occur in various spheres of social life - in science, technology, medicine, pharmacology, as well as in production and economic activity.

2. All conditions for the legality of causing harm in the event of a reasonable risk can be divided into two groups: one of them characterizes the goal for the sake of which the person takes the risk, and the other - the actions themselves that caused harm in conditions of a reasonable risk.

3. In accordance with Part 1 and Part 2 of the commented article, the goal with a justified risk must meet two requirements: a) the person takes the risk to achieve a socially useful goal. We are talking, for example, about testing a new technology, conducting a test flight of a new aircraft, applying a new method of treatment, etc. Consequently, the use of the commented article is excluded if the risk is taken to achieve purely personal goals; b) this goal could not be achieved by other methods that do not involve risk.

4. Two conditions also characterize actions taken to achieve a socially useful goal. Firstly, the risk is not considered justified if the person was knowingly aware that his risky actions create a danger to the lives of many people (for example, when releasing an insufficiently tested medicine, which, as it turned out, has many negative side effects), the danger of an environmental disaster (for example, the threat of poisoning large areas of land) or a public disaster (for example, the threat of a sea spill as a result of a dam failure). Secondly, when performing risky actions, a person must take sufficient precautions from a professional point of view. Of course, in such conditions it is difficult to foresee everything, nevertheless, reasonably sufficient measures to prevent possible harm must be taken by the person.

5. If, when assessing a specific case, all the conditions of legality provided for by the commented article are established, then it should be recognized that the harm was caused under circumstances of legitimate risk and, therefore, there is no crime in the person’s actions.

If, nevertheless, the causing of harm was the result of non-compliance with certain conditions formulated in the commented article, for example, a person did not take sufficient security measures to prevent harm, then the person is subject to criminal liability for committing such actions. But the very circumstances of the commission of such actions that caused harm to legally protected interests must be assessed by the court as a mitigating circumstance when imposing punishment in accordance with paragraph “g” of Part 1 of Art. 61 CC.

Scientific and practical commentary

1. Risk is defined as “the possible danger of something”, “an action at random, requiring courage, fearlessness in the hope of a happy outcome.” In the criminal legal sense, the first meaning of the concept “risk” is used. In the process of mastering new technologies, when eliminating accidents, in medicine, scientific activity, space exploration and many other things, one has to pave the way into the unknown, which is inevitably associated with risk. We can say that scientific and technological progress is impossible without risk, since scientific research and the inventive process can lead to failure, material damage, and are sometimes associated with danger to human health. 2. Article 41 defines when harm resulting from actions involving risk does not entail criminal liability, and specifies the conditions under which the risk is acceptable. The first condition for the validity of the risk is the presence of a socially useful goal. Thus, conducting experiments in scientific research may not give a positive result, but cause significant material costs. Testing new types of equipment and vehicles can lead to an accident that causes casualties. When mastering new treatment methods (organ transplantation, creating drugs for the treatment of dangerous infectious diseases, etc.), failures, harm to health, and sometimes death are possible. However, the desire to develop the capabilities of medicine forces us to take risks. Doctors often test new drugs on themselves so as not to jeopardize the health and lives of patients. The second condition for the validity of the risk is the impossibility of achieving the desired result by other actions not associated with risk. So, after laboratory research and experiments on animals, it is necessary to apply new treatment methods (surgeries, vaccines, medications, exposure to various radiations on the body, etc.) on humans. Until the new technique is mastered and side effects are identified, the first patients are at risk. In cases where people are at risk, their consent to participate in experiments, tests, and dangerous activities is required. However, this is not enough. The third condition for the validity of the risk is that the person who committed the risk takes sufficient measures to prevent harm. Sufficient measures should be considered to be the use of all currently possible means and scientific knowledge to minimize the risk, since in some cases the risk cannot be completely eliminated. A risk is not considered justified if achieving the goal by the intended means creates a threat of extreme consequences in case of failure. Such particularly grave consequences are considered to be a threat to the lives of many people, the threat of an environmental disaster or a social disaster, for example, the possibility of radioactive contamination of the area, the outbreak of an epidemic. 3. Violation of the conditions of justified risk, leading to the onset of harmful consequences, entails criminal liability for intentional or careless causing of harm (depending on the circumstances of the case), but under mitigating circumstances (clause “g”, part 1 of article 61 UK). 4. Unlike a state of emergency, when less harm is caused to prevent more, in actions involving risk, there is no imminent danger. The forced creation of a dangerous situation is caused by the desire for a socially useful goal. Naturally, this goal should mean achieving a much more important result than the possible damage in case of failure.

Justified risk

1. It is not a crime to cause harm to interests protected by criminal law at a reasonable risk to achieve a socially useful goal.
2. The risk is recognized as justified if the specified goal could not be achieved by actions (inactions) not related to the risk and the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law.

3. A risk is not considered justified if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a social disaster.