MIP online legal encyclopedia - » Criminal cases - comments from a Federal Judge / MIP Law Group » List of articles on crimes » Murder in excess of necessary defense - comments from a Federal Judge / MIP Law Group Sign up for a consultation with the head of the criminal department. We specialize in Article 108 of the Criminal Code of the Russian Federation. Professional explanations. Unlimited consultation time
Murder by exceeding the limits of necessary defense - free answers from lawyers online
Punishment for murder committed while exceeding the limits of necessary defense
Murder in excess of the limits of necessary defense has a full composition, the presence of which makes it possible to bring the person who committed the act to justice. The main task of the authorities establishing punishment for murder is to correctly qualify actions and distinguish them from acts that fall under other crimes. Thus, this type of act may be very similar to murder committed in the presence of a state of passion. That is why it is important to establish those grounds that allow us to characterize the process of attack itself, the form of behavior of the attacker and the victim.
A person cannot be subject to criminal punishment if his actions were not intentional, but were committed as a result of negligence. The justice authorities imposing punishment for a crime must take into account a number of signs that are characteristic of exceeding the limits of necessary defense.
The inadequacy of the protective measures must be obvious and have a greater danger than the initial infringement itself, as well as the level of threat posed by the person encroaching on the violation of protected rights.
In the process of administering justice, there must be an allowance for the fact that the person carrying out the necessary defense was in a state of excitement and a high level of excitement, justified by the attack. It is as a result of these factors that the nature of the danger posed by the attacker cannot always be weighed. This becomes the reason for choosing the wrong method or means for the upcoming protection.
Second commentary to Art. 108 of the Criminal Code of the Russian Federation
1. The objective side of murder in excess of the limits of necessary defense (Part 1) includes all the signs of the main elements of murder and signs of exceeding the limits of necessary defense (Article 37 of the Criminal Code). This murder can only be committed in the form of an act. Qualification of murder under Part 1 of Art. 108 of the Criminal Code prevents the qualification of this murder on the grounds of Part 2 of Art. 105 of the Criminal Code.
2. The subjective side of a murder committed in excess of the limits of necessary defense includes direct or indirect intent. Causing death through negligence in the circumstances of necessary defense does not constitute a crime. A mandatory feature of the subjective side of the crime is the motive for protecting the rights and legitimate interests of the defendant, other persons, society or the state.
3. The subject of the crime is a person who has reached the age of sixteen.
4. The objective side of murder in excess of the measures necessary to detain a person (Part 2) who has committed a crime is the intentional infliction of death on another person in the circumstances of his detention as a person who committed a crime. For the criminal legal assessment of this type of murder, the actual (and not procedural) circumstances of the arrest are important, which are characterized by:
1) the presence of a situation of detention of a person who committed a crime;
2) exceeding the measures necessary for his detention.
Its signs in accordance with Part 2 of Art. 38 of the Criminal Code define this type of murder as its obvious discrepancy with the nature and degree of social danger of the crime committed by the detained person, when the death of this person is caused unnecessarily.
5. The subjective side of this crime is characterized by direct or indirect intent. Its peculiarity is the special purpose of delivering the detained person to the authorities and suppressing the possibility of him committing a new crime. These goals are subordinated to the main one - ensuring justice over the person who committed the crime. If the person who committed the crime is killed, justice cannot be done. Therefore, causing the death of a person who is being detained is in all cases interpreted as exceeding the measures necessary to detain the person who committed the crime.
6. The subject of this crime is a person who has reached the age of 16 years.
Punishment for murder committed while exceeding the measures necessary to apprehend the criminal
Murders committed as a result of exceeding permissible measures (Article 108 of the Criminal Code of the Russian Federation), which can be used during the detention of criminals, are criminally punishable if their subjective side has a deliberate expression. A careless form of guilt excludes the criminality of the act and releases the person from liability.
In order to most fully resolve the question of whether the measures required to apprehend criminal elements were actually exceeded, it is necessary to establish and take into account a set of circumstances, including:
- characteristics and level of public danger of the act that was committed (at the time of arrest);
- indicators of danger that were characteristic of the person being detained (propensity to resist, presence of weapons, proficiency in martial arts, etc.);
- the situation prevailing at the time of detention (place and time of action, attempts to escape, intensity of resistance provided).
The main feature of such acts is that they take place only when the original crime is already considered to have been committed. The person carrying out the arrest has the intention of protecting law enforcement interests, which is expressed in the desire to prevent the possibility of committing new crimes and transfer the offender to law enforcement agencies.
Judicial practice under Article 108 of the Criminal Code of the Russian Federation
Resolution of the ECHR dated June 13, 2017
36. In accordance with paragraph 34 of Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 29, 2009 No. 22 1 (hereinafter referred to as Resolution No. 22), the use of detention of a person prior to extradition is allowed only by a court decision adopted on the basis of a petition from the prosecutor in the manner prescribed by Article 108 of the Criminal Code of the Russian Federation (detention).
Resolution of the Presidium of the Supreme Court of the Russian Federation dated June 20, 2018 N 64P18
Chernenko Konstantin Gennadievich, ... convicted: February 20, 1996 under Art. , part 2 art. 144, part 2 art. 144, part 1 art. 149, art. , Criminal Code of the RSFSR to 3 years of suspended imprisonment with a probationary period of 2 years; March 12, 1999 under Part 2 of Art. 108 of the Criminal Code of the RSFSR to 8 years in prison, on the basis of Art. Criminal Code of the RSFSR to 9 years in prison, on July 1, 2005, released on parole for 4 months 16 days, -
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 10, 2018 N 88-APU18-4
He also believes that his actions need to be reclassified from paragraph “h” of Part 2 of Art. 105 and paragraph “c” of Part 4 of Art. 162 of the Criminal Code of the Russian Federation on Part 1 of Art. 108 and part 2 of Art. 158 of the Criminal Code of the Russian Federation, respectively. In this case, the sentence should be reduced.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 20, 2018 N 49-APU18-6
It is noteworthy that the court did not reliably establish the weapon of crime, so from the testimony of witness V. it follows that he (Usmanov I.A.) attacked the victims with a shovel, while the court recognized the metal crowbar with which he was attacked as a crime weapon The victims S. committed the attack, which led to the fact that his actions did not receive a legal assessment under Part 2 of Art. 108 of the Criminal Code of the Russian Federation, moreover, notes that there are no traces of a crime on the scrap metal.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 02, 2018 N 20-APU18-8sp
convicted under Part 1 of Art. 108 of the Criminal Code of the Russian Federation to corrective labor for a period of 1 year 6 months with the deduction of 15% of wages to the state income; on the basis of clause 3, part 1, art. 24, part 8 art. 302 of the Code of Criminal Procedure of the Russian Federation was released from the imposed punishment due to the expiration of the statute of limitations for criminal prosecution; according to paragraph “c” of Part 3 of Art. 158 of the Criminal Code of the Russian Federation to imprisonment for a period of 3 years 9 months, serving the sentence in a general regime correctional colony with a fine of 50 thousand rubles and restriction of freedom for 1 year, with the establishment of the restrictions listed in the sentence and the imposition of obligations.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 11, 2018 N 11-APU18-18
In the appeal, lawyer Tagirova N.R. in the interests of Isanov N.I. expresses disagreement with the verdict regarding the qualification of the actions of the convicted person and the imposed punishment. Analyzing the evidence in the case, including Isanov’s testimony at the trial and during the preliminary investigation, he believes that Isanov committed the crime in a state of strong emotional disturbance caused by the unlawful behavior of the victims. Refers to Isanov’s grave insult to the victim G., unacceptable for the convicted person due to the long-term serving of his sentence in places of deprivation of liberty, and the use of violence against Isanov by victims who were in a state of alcoholic intoxication - causing him bodily injuries in the head area. Considers the court's conclusion that there was no dangerous attack on Isanov on the part of the victims to be unfounded. Declares that Isanov’s testimony as a suspect is subject to critical assessment, since the latter did not confirm them at the court hearing, indicated that he was in a state of shock, was drunk, the interrogation was carried out at night, he gave testimony from the words of police officers, and in this testimony the order was incorrectly indicated causing bodily harm to victims. He argues for the need to critically evaluate the testimony of victim G., since she was intoxicated that day and is a person interested in the outcome of the case. He asserts that the statements and actions of the victims created a psychologically traumatic environment for Isanov, these actions posed a danger to Isanov’s life and health, and it was the state of strong mental agitation that caused Isanov to exceed the limits of necessary defense. He considers the punishment imposed on Isanov to be unfair due to excessive severity, citing the presence of circumstances mitigating the punishment, positive data about Isanov’s personality, as well as his age and state of health. He asks to change the sentence, to reclassify Isanov’s actions under Part 1 of Art. 108 of the Criminal Code of the Russian Federation, mitigate the punishment, and also reduce the amount of compensation for moral damage recovered in favor of the victim B.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 09/05/2019 N 11-APU19-13
In the appeal, lawyer Abdrakhmanov A.A. considers the sentence against the convicted Viktorov illegal, due to the discrepancy between the court's conclusions and the actual circumstances of the case. Claims that Viktorov’s guilt in the premeditated murder of victims A. and D. has not been proven. Believes that the court improperly assessed the testimony of witnesses Kh. and K., given by them at the court hearing, that Kh. was not an eyewitness to the murder of A. and D., but , according to K. Viktorov, could not have committed murder. He believes that the testimony of these witnesses coincides with the testimony of Viktorov that he committed the murder of victim A. in self-defense, and D. through negligence, during a struggle. He asks that Viktorov’s actions be qualified under Part 1 of Art. 108 of the Criminal Code of the Russian Federation and Part 1 of Art. 109 of the Criminal Code of the Russian Federation, impose a more lenient punishment.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 11, 2018 N 45-APU18-30
Believes that Korepanov’s actions were subject to qualification only under Part 1 of Art. 108 of the Criminal Code of the Russian Federation, as the murder of K. when exceeding the limits of necessary defense. He believes that the court unreasonably did not recognize the behavior of the victim N. as unlawful, pointing out that Tikhanov acknowledged the debt, communicated with the victim, met him at the airport, which is not based on the examined evidence and is an assumption. In fact, the court found that Tikhanov never acknowledged the debt to N. and did not have any contractual relations in writing. According to Tikhanov, he paid money to N. as a result of the latter’s threats, and he himself did not contact law enforcement agencies because N. repeatedly pointed out his corrupt connections with law enforcement agencies.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 29, 2020 N 42-APU20-1
convicted under Part 1 of Art. 108 of the Criminal Code of the Russian Federation to 1 year 9 months of restriction of freedom with the establishment of restrictions: not to travel outside the territory of ... district municipality ... not to change the place of residence or stay, place of work without the consent of a specialized state body that supervises the execution by convicts of punishment in the form of restriction of freedom; not leave your home in the period from 23 to 06 o'clock unless absolutely necessary and with the exception of emergency situations, and in other cases without notifying the specialized body and in the presence of good reasons, as well as imposing on him the obligation to appear for registration 2 times a month at the specialized a state body that supervises the serving of sentences by convicts in the form of restriction of freedom.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 12, 2017 N 53-APU16-32
ANDREEV S.N., ..., previously convicted: November 11, 2014 under Part 1 of Art. 108 of the Criminal Code of the Russian Federation was sentenced to ten months of restriction of freedom under clauses “d”, “z”, part 2 of Art. 105 of the Criminal Code of the Russian Federation to thirteen years of imprisonment with restriction of freedom for a period of one year; according to paragraph “c” of Part 4 of Art. 162 of the Criminal Code of the Russian Federation to nine years in prison; according to Part 3 of Art. - part 2 art. 167 of the Criminal Code of the Russian Federation to two years in prison.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 4, 2017 N 127-APU17-2
- according to Part 3 of Art. , part 1 art. 108 of the Criminal Code of the Russian Federation to 1 year 3 months of imprisonment. In accordance with Part 3 of Art. The Criminal Code of the Russian Federation, for the totality of crimes, by partial addition of punishments, finally imposed 20 years of imprisonment to be served in a high-security correctional colony, with restriction of freedom for 1 year 6 months with the establishment of appropriate restrictions and the imposition of duties specified in the sentence.
What is necessary defense, what are its limits and what is exceeding these limits?
Every person in Russia has the right to defend themselves when they are attacked. And also protect other people if they are attacked. This is the subject of Article 37 of the Criminal Code of the Russian Federation “Necessary defense”.
Part 1 of this article states that if the attacker has used violence that is dangerous to someone’s life or directly threatens to use such violence, then you can defend yourself in any way you like. In this case, the Criminal Code of the Russian Federation allows any harm to be caused to the attacker. It is also allowed to kill the attacker. It won't be a crime.
Example #1: The attacker pulled out a knife and stabbed the man. He intercepted this knife from the attacker and stabbed the attacker with it.
In this situation we have: an encroachment associated with violence that is dangerous to the life of the defender. Therefore, the actions of the defender are lawful, there is no corpus delicti.
Example #2: One person has knocked another to the ground and is choking him. He managed to kick the strangler in the face. The attacker fell to the ground and hit the back of his head on the curb. He suffered a fracture of the cervical vertebrae and died.
There is also the use of violence that is dangerous to the life of the defender (strangulation). And also causing the death of an attacker is not a crime.
Example No. 3: Two people are arguing. One of them pulls out a knife and shouts to the other “I’ll kill you now!”
In this situation, the defender has the right to cause death to the attacker, since he threatens to use violence that is dangerous to life and there is real reason to fear that he will carry out his threat.
But there are attacks that cannot cause death. For example, beatings, causing minor harm to health. This is stated in Part 2 of Article 37 of the Criminal Code of the Russian Federation. This is where the whole question lies. The Criminal Code allows one to defend oneself against an attack when there is no threat to life, but only within the limits of necessary defense.
Example: A drunk man grabbed onto a passerby and punched him in the chest. There is no threat to life here. A passerby can also hit a drunk, push him away, or trip him up so that he falls. But he cannot take a stone and break the head of a drunken man so that he will fall behind. If he does so, then this will be precisely part 1 of Article 108 of the Criminal Code of the Russian Federation “Murder committed when the limits of necessary defense were exceeded or when the measures necessary to detain the person who committed the crime were exceeded.”
Article 37 of the Criminal Code of the Russian Federation states that exceeding the limits of necessary defense will be a situation where the defender intentionally committed actions “obviously inconsistent with the nature and danger of the attack.”
It is important to know: in 2012, the Supreme Court of the Russian Federation issued Resolution No. 19 “On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime.” This is an important document and criminal lawyers use it in their defense. He introduces his own terms, for example “the actual end of the encroachment”, “the legal end of the encroachment”. It is also important to know whether the attack was unexpected and whether the defender could appreciate its danger.
All these are details that need to be taken into account when protecting. Consultation on Article 108 of the Criminal Code of the Russian Federation “Murder committed when the limits of necessary defense were exceeded or when the measures necessary to detain the person who committed the crime were exceeded” is good. But it is better when your case is handled by an experienced lawyer. This way you are much better protected, and the likelihood of being convicted is lower.
Why do you need a lawyer under Article 108?
If you have been charged under Article 108 of the Criminal Code of the Russian Federation, immediately find your criminal lawyer. Otherwise, investigators may classify murder in excess of self-defense as “ordinary murder”: instead of the maximum 3 years in prison, you will face a sentence of 6 to 15 years. A criminal lawyer will guide you past the pitfalls and block the possibility of changing the article to a more serious one.
To prevent Article 108 of the Criminal Code of the Russian Federation from being changed to Article 105 “Murder”, you will need the help of an experienced criminal lawyer. For the sake of my clients I:
- I seek a mitigation of punishment or the abolition of a preventive measure;
- I organize a forensic examination not from a departmental expert, but from an independent expert;
- representing your interests in court;
- I make every effort to exclude from your case evidence collected by the investigator in violation of the criminal procedure code;
- I am present at all investigative events - confrontations, searches, interrogations - and make sure that your rights are not violated;
- I collect evidence in your interests;
- I find defense witnesses and convince them to come to court and support you.
Consultation is the most important stage of protection. You can ask me all the questions you are interested in and receive detailed answers regarding your situation.
For each of my clients, I develop an individual strategy aimed at achieving a positive result. For my part, I promise to do everything possible to help you cope with the difficulties that arise. All you need to do is call and clearly state your problem.
