Necessary defense and extreme necessity: concept, conditions of legality, meaning

General concepts

The extreme need for administrative law (according to the text - the Code of Administrative Offenses) is discussed in Article 2.7 , which provides circumstances when, causing harm to state-protected interests, a person’s actions are not qualified as an offense.
The legislator considered such actions to be behavior committed in special conditions - in a state of extreme necessity .

So, extreme necessity is the circumstances in which a person, who finds himself in danger, when the need for defense arises, takes actions to prevent it, as a result of which they are harmed by other legitimate interests.

In this case, he can be legally recognized as a person who committed such actions when absolutely necessary.

Emergency concept

A state of extreme necessity is a situation in which a person, even if not directly related to this case, in order to prevent consequences and damage to his interests or the interests of other persons and the state as a whole, violates and/or causes harm to other protected interests. In a narrower sense, this is a circumstance that requires making a choice about what can be saved and what cannot. Most often, medical workers, firefighters, military personnel, police officers, rescuers, i.e., everyone who has anything to do with saving people and protecting their interests, find themselves in such a situation.

Basic characteristics of necessary defense and emergency

Necessary defense is inflicting harm on a criminal to protect himself, other citizens, and the interests of the public and country. It must be proportionate to the encroachment, otherwise it may be considered illegal. Let's say that if the robber is unarmed and does not threaten the life of the victim, then killing the intruder will be considered an excess of necessary defense. However, if the criminal wanted to shoot at the victim, but he got ahead and fired the bullet first, then the actions are considered legal.

The encroachment must be:

1. Dangerous. That is, it can really cause damage to a citizen, his loved ones or the state. If the attacker only verbally threatens, then the presence of a real danger is in doubt.
2. Cash. Defense is allowed if an attack is already taking place. Let's say the attacker takes out a gun and is about to shoot.
3. Effective. The danger must be real, and not just in the head of the defender. If harm was caused due to a far-fetched threat, then the act will be classified as causing damage through negligence.

Third parties should not be harmed by the victim's actions. The defense itself must be timely, used directly at the moment of danger, and it will be necessary to comply with acceptable standards of defense commensurate with the threat.

Extreme necessity is a special situation in which it is necessary to prevent a real threat to cause harm to property or a citizen. The source of danger can be not only people, but also natural disasters, animals, diseases, breakdowns of mechanisms and other objects. The danger must be real, not imaginary. Measures must be taken on time and not exceed permissible limits. It is important that a violation be committed if there is no other way to eliminate the threat.

Question No. 18 Conditions for the legality of necessary defense and extreme necessity. Their demarcation.

The Constitution of the Russian Federation (Part 2 of Article 45) establishes that everyone has the right to protect their rights and freedoms by all means not prohibited by law. The Criminal Code (Article 37) formulates the concept of necessary defense and regulates the limits within which it can be carried out.

Necessary defense is the lawful protection of the personality and rights of the defender, other persons, as well as the interests of the Society or the state protected by law from Socially Dangerous encroachment by causing harm to the attacker. Those. The purpose of Necessary Defense is the protection of rights and interests protected by law, and it itself is of a forced nature.

In accordance with the law, it is allowed to protect the life and health of a person, his physical and sexual freedom, inviolability, honor and dignity of the individual, inviolability of home, property, public safety and public order, and state security.

Emphasizing the social significance of Necessary Defense as a means of countering criminal manifestations, the Criminal Code establishes that all persons have the right to it equally, regardless of their professional or special training.

At the same time, common sense and moral feelings establish the need to establish certain limits for a person to exercise his interests, the interests of other persons, society and the state. The right to repel an attack is not unlimited and, under certain conditions, causing harm ceases to be considered as a socially useful, lawful act, and, on the contrary, forms the basis of the Criminal Code.

Conditions for the validity of Necessary Defense: a) related to the attack; b) related to protection.

The conditions for the legality of Necessary Defense relating to an attack are its:

1) Public danger. A socially dangerous act is such an act of a person that is provided for as a crime in the OSCh Criminal Code. But not any character. The state of Necessary Defense can only give rise to Presence, which immediately causes the onset of real harmful consequences, and their prevention is possible precisely by causing harm to the offender.

2) Validity (reality). It means that the encroachment actually occurs (really), and not in the imagination of the defender. Otherwise, the so-called “imaginary defense”.

3) Cash. Means the timeliness of the act of Necessary Defense. An assault that has already begun, but has not ended, is an assault. However, the Plenum of the RF Armed Forces indicated that the state of Necessary Defense also arises in the event of a real threat of attack (intimidation by demonstration of weapons).

The conditions for the validity of Necessary Defense relating to defense are as follows:

1) Harm can only be caused to the offender. That is, a person who directly commits Acts that violate the legitimate interests of the individual, society and the state. This harm may consist of restriction of freedom, causing material damage, causing damage to the health of the offender and even life. In this case, the identity of the attacker and the nature of his relationship with the defender do not play a role. In the event of an attack by a group of persons, the defender has the right to apply protective measures to any of the attackers, which are determined by the nature of the entire group.

2) Protection should not exceed the limits of necessity. Only in this case is it legal.

The sign of a real attack makes it possible to distinguish between necessary defense and imaginary defense. Imaginary defense is a defense against an imaginary, apparent, but actually non-existent encroachment. The legal consequences of an ostensible defense are determined by the general rules of mistake of fact.

There are two main options when solving this issue:

a) if a mistake of fact excludes intent and negligence, then criminal liability for actions committed in a state of imaginary defense is also eliminated. In such cases, the person not only does not realize, but due to the circumstances of the case should not and cannot realize that there is no socially dangerous attack. There is a case of innocent causing harm.

The Plenum of the Supreme Court of the USSR, in its Resolution of August 16, 1984, indicated that imaginary defense may exclude criminal liability “in cases where the circumstances of the incident gave reason to believe that a real attack was being committed, and the person who used the means of defense was not aware and could not recognize the error of one’s assumption.”

b) if, in an imaginary defense, the person causing harm to the imaginary attacker did not realize that in reality there was no infringement, being conscientiously mistaken in assessing the current situation, but due to the circumstances of the case should and could have realized this, liability for the harm caused occurs as for a careless crime.

It should be borne in mind that imaginary defense and necessary defense presuppose certain mandatory conditions: necessary defense - the presence of a real encroachment, imaginary defense - the commission of actions taken for such an encroachment.

In cases where a person completely unreasonably assumed an attack, when neither the behavior of the victim nor the entire situation in the case gave him any real reason to fear an attack, he is liable on a general basis as for an intentional crime. In these cases, the person’s actions are not associated with imaginary defense, and harm to the victim is caused due to the excessive, unjustified suspicion of the perpetrator.

Protection should not exceed the limits of necessity.

Exceeding the PNO (excess of defense) is a deliberate action that clearly does not correspond to the nature and extent of the OO encroachment (Part 3 of Article 37). This is understood as causing clearly unnecessary, excessive, grievous harm not caused by the situation to the attacker.

Exceeding the PNO is recognized only as a clear, obvious inconsistency of the defense with the nature and danger of the attack, when the harm specified in Part 1 of Article 108 or in Part 1 of Article 114 of the Criminal Code (death or serious harm to health) is intentionally caused to the offender unnecessarily. Infliction of harm to the offender while repelling a public organization through negligence cannot lead to criminal liability. This is how the issue of the subjective side of offenses committed as a result of exceeding the PNO is resolved in the Criminal Code (Part 3 of Article 37).

Infliction of moderate and minor harm to health, as well as beatings in a situation of defense in all cases falls within the framework of lawful defense. The legislator has eliminated the possibility of bringing a person to criminal justice for exceeding the maximum limit when causing harm to health of moderate severity. The question of excess of defense can now arise only in cases of death or serious harm to the offender’s health, of course, when this harm clearly does not correspond to the nature and danger of the attack.

Exceeding the PNO occurs primarily in cases of obvious (sharp, significant) discrepancy between the threatened harm and the harm caused by defense, between the methods and means of defense, on the one hand, and the methods and means of encroachment, on the other, between the intensity of protection and the intensity of encroachment.

For a legitimate defense, proportionality (absolute proportionality) between the methods and means of defense and the methods and means of attack is not required. An unarmed attack under specific circumstances can pose an immediate danger to life, the prevention of which by means of weapons is entirely justified. People differ in strength, dexterity, ability to wield weapons or defend themselves without weapons. The requirement to use the same weapon as the attacker in defense puts the defender in a worse position than the criminal. In addition to the fact that it is not always possible to defend yourself with proportionate means, it should be borne in mind that the defendant does not have time to think about whether the methods and means of defense he uses are proportionate to the methods and means of the attack. In a state of emotional disturbance caused by an attack, the defender cannot always accurately determine the nature of the danger and choose proportionate means of defense. Therefore, protective measures can be more effective.

A conclusion about whether the limits of necessary defense were exceeded or not can be made only as a result of a thorough analysis of the specific circumstances of the case, the identity of the attacker and the defender. It is necessary to take into account not only the correspondence or inconsistency of the means of defense and attack, but also the nature of the danger threatening the defender, his strength and ability to repel the attack, as well as all other circumstances that could affect the real balance of forces between the attacker and the defender (the number of attackers and defenders, their age, physical development, presence of weapons, place and time of the attack, etc.). When an attack is committed by a group of persons, the defender has the right to apply to any of the attackers such protective measures as are determined by the danger and nature of the actions of the entire group

The act of detaining a person who has committed a crime, by its legal nature, is the exercise of a right and, in some cases, the fulfillment of a citizen’s moral duty to suppress illegal crimes and bring the perpetrators to the authorities. For some people, detaining a criminal is a legal, official duty.

In accordance with Article 38, “It is not a crime to cause harm to a person who has committed a crime when he is detained in order to be brought to the authorities and to suppress the possibility of him committing new crimes, if it was not possible to detain such a person by other means and the excess required for this was not allowed.” measures (2) Exceeding the measures necessary to detain a person who has committed P is recognized as their obvious discrepancy with the nature and extent of the criminal offense committed by the detained person P and the circumstances of the detention, when the person is unnecessarily caused clearly excessive harm not caused by the situation. Such an excess entails a penalty only in cases of intentional harm.”

Detention of P is D, consisting of causing harm to the person who committed P, with the aim of bringing him to the authorities and preventing him from committing new P.

The difference from NO is when and for what purpose the harm is caused. After the end of the criminal offense, the goal is to ensure involvement in the criminal justice system.

Conditions for the legality of causing harm when apprehending a criminal:

a) Relating to the grounds for detention. Only the person who has committed P can be detained by causing harm. The right to detain P remains after the end of P until the expiration of the statute of limitations (Articles 78, 83).

b) Related to the actions of the detainee. The requirement of the Criminal Code is to cause harm specifically to the person who committed the crime, and not to third parties. The harm must be caused by force (no other means of detention). The PV’s compulsion is evidenced by his attempt to escape, as well as his active resistance to arrest. The harm must correspond to the nature and extent of the harm committed by the P and the circumstances of the arrest.

Harm can be different: property (destruction or damage to transport or home) and physical (harm to health).

Examples of obvious inconsistency of detention measures with the nature and danger of the crime committed are: causing death in the absence of aggressive resistance; infliction of serious harm to health, when it was realistically possible to limit oneself to inflicting less serious harm; causing serious harm to the health of a person who has committed a non-violent crime and refuses to comply with legal requirements (theft, bribe).

Extreme necessity means forced infliction of harm to legally protected interests in order to eliminate a danger that directly threatens a person, his rights and interests, as well as the interests of society or the state protected by law, if this danger under the given circumstances could not be eliminated in another way.

Article 39 “It is not P to cause harm to the interests protected by law in the state of CC, that is, to eliminate a danger that directly threatens the personality and rights of a given person or other persons, the interests of society or the state protected by law, if this danger could not be eliminated by other means and with In this case, the CN limits were not exceeded. (2) Exceeding the limits of CN is considered to be the infliction of harm that is clearly inconsistent with the nature and degree of the threatened danger and the circumstances under 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 a penalty only in cases of intentional harm.”

Persons whose professions involve risks to their own lives (police, firefighters, doctors) do not have the right to evade risky D, citing the CN. A threat to the interests of people, society and the state can arise as a result of the action of natural forces, the malfunction of various sources of increased danger, or a conflict of duties (simultaneous calling a doctor to several seriously ill people).

Special conditions of action in CN are divided into those related to danger and those related to actions aimed at eliminating it.

Conditions for the validity of technical norms related to danger:

1) The reality of the danger. The danger must be real, exist in reality, and not in the imagination of the person. Otherwise, an imaginary CN (UR according to the rules about a factual error).

2) The presence of danger. The threat to protected interests has already arisen, but has not yet disappeared. Does not comply with CN - probable danger.

3) Inevitability of danger. Using other means, but only by infringing on other protected interests (benefits).

The only condition for the legality of causing harm in a state of emergency, relating to actions to eliminate the danger, is that the harm caused must be less significant than the harm being prevented. It is unacceptable to save a person’s life at the expense of the life of another, to cause harm to the health and life of people for the sake of saving material values, or to sacrifice people’s lives for the benefit of the interests of the state.

Signs indicating that the conditions of the CC have been exceeded: causing equal or greater harm to legally protected interests than the one being prevented (assessment sign); intentional infliction of such harm (only intentional infliction of equal or greater harm).

Extreme necessity has a number of similarities with necessary defense. They are brought together by social significance, the goals of the corresponding actions and their reasons. At the same time, they differ significantly from each other.

The source of danger in the necessary defense is socially dangerous human actions. If absolutely necessary, such a source can be not only human actions, but also the destructive forces of nature, animal attacks, etc.

With the necessary defense, harm is caused to the attacker. If absolutely necessary - to a person not associated with creating a danger to the individual, his rights, state and public interests.

Necessary defense is not criminal if the harm caused is less than, equal to, or even greater than the harm prevented. If absolutely necessary, the harm caused should always be less than the harm prevented.

Necessary defense is also allowed when the defender had the opportunity to protect state, public and personal interests without resorting to causing harm to the attacker. A state of emergency is excluded if elimination of the danger was possible without causing harm to third parties.

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

The risk is considered 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.

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.

Justified risk, consisting in the lawful creation of a possible danger to legally protected interests in order to achieve a socially useful result that could not be obtained by ordinary, non-risky means, is a circumstance excluding the criminality of the act. Such a risk is possible in any field of activity - industrial, scientific and technical, medical, law enforcement, etc., as well as in extreme situations that arise in the spheres of everyday life and leisure activities. Risk is, to a large extent, a person’s right to creative search and daring.

The source that creates the danger of causing harm to legally protected interests at a justified risk is the actions of the person himself, who deliberately deviates from established security requirements in order to achieve a socially useful goal.

The conditions for the legitimacy of such a risk are as follows:

a) harm to the interests protected by criminal law is caused by the actions (inaction) of the risker, aimed at achieving a socially useful goal;

b) this goal cannot be achieved by ordinary means that do not involve risk;

c) harmful consequences of risk are recognized by the risker only as a side and possible option for his actions (inaction);

d) committed actions (inaction) are provided with appropriate knowledge and skills that are objectively capable in a given specific situation of preventing the onset of harmful consequences;

e) the person has taken sufficient, in his opinion, measures to prevent harm to legally protected interests.

The actions (inaction) of the risk-taker must be aimed at achieving a socially useful goal. They are committed to achieve a result that brings benefit, mainly not personally to the one who acts under risk conditions, but to other people, as well as to society or the state as a whole. Achieving a certain socially useful result is precisely the goal that determines the social usefulness of certain actions with justified risk.

With a legitimate risk, the set goal cannot be achieved by ordinary, non-risky means or actions not associated with risk. The ability to realize this goal using ordinary, non-risky methods removes the legitimacy of the risk and turns it into a socially dangerous action (inaction). If such an opportunity existed and the person did not take advantage of it, but chose to take risks and, as a result, caused harm to legally protected interests, he is subject to liability on a general basis.

The risk should not lead to deliberate harm. The possibility of causing harmful consequences when taking a risk is only probable. Where we are talking about deliberate harm, there is no legitimate risk. In particular, a risk cannot be 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.

Actions (inactions) taken at risk must be supported by appropriate knowledge and skills that are objectively capable in a given specific situation of preventing the onset of harmful consequences.

The person who has allowed the risk must take sufficient, in his opinion, measures to prevent harm to legally protected interests. It must foresee the size of possible harmful consequences and, taking into account the available possibilities, correctly select those measures that can, if not eliminate, then at least reduce their size as much as possible. We are talking specifically about subjective calculations and measures of a person acting in a risk situation, capable, from his point of view, of preventing possible harmful consequences. It must be borne in mind that when there is a risk, there always remains the danger of causing harm to legally protected interests, therefore it is practically impossible to provide all the necessary measures to prevent the occurrence of such harm.

In cases where a person made a mistake and, despite the measures he took and contrary to his calculations, the resulting harm turned out to be significantly greater than it could have been if other measures were taken that were not associated with risk, his actions go beyond the boundaries of risk and become socially dangerous . In such cases, the limits of justifiable risk are exceeded and criminal liability may arise. It should, however, be borne in mind that, in contrast to extreme necessity, the harm caused by a reasonable risk can sometimes be greater than that which was prevented. Exceeding the limits of justified risk is considered as a circumstance mitigating liability

Actions (inaction) in pursuance of a mandatory order or instruction associated with causing harm to legally protected interests are not a crime. The person who gave the illegal order or instruction bears criminal liability for causing such harm.

An order or instruction is understood as a mandatory requirement made by a superior to a subordinate. This requirement can be oral or written, and can be conveyed to the subordinate either directly by the boss or through other persons.

An order or instruction is a manifestation of the will of the boss. Due to the mandatory nature of an order or instruction, the subordinate’s belief in their legality, and trust in them, they are considered as grounds for certain actions (inaction) by the executor and even as acts that replace the actions of the executor. Their legal force is greater than the performing act itself. Therefore, responsibility for the consequences of an illegal order or instruction rests with the superior who issued it.

So, the first condition for the legality of actions (inaction) of a person executing an order or instruction is the latter’s compliance with the requirements of the law. An illegal order cannot be executed. Otherwise, if harm is caused to interests protected by criminal law, criminal liability arises. In this case, both the person who gave this order (instruction) and its executor are subject to liability if he was aware of the illegality of such an expression of the will of the superior.

By issuing an illegal order (instruction), the boss may act deliberately, contrary to the interests of the service, out of selfish or other personal interest. In such cases, he must be responsible not only for the consequences of the execution of an illegal order (instruction), but also for abuse of official powers (Article 285), which was expressed in the use of a subordinate to achieve these illegal goals.

The second condition for the legality of actions (inaction) of a person executing an order or instruction is the lack of awareness of its illegality on the part of that person. If the executor of the order (instruction) knowingly knew about its criminal nature, he is subject to criminal liability on a general basis. Here there is complicity in a crime with a division of roles. The boss acts as the organizer of an intentional crime (Part 3 of Article 33), the subordinate acts as its executor (Part 2 of Article 33). The fact that the subordinate is a person dependent on the boss and the selectivity of his behavior was, to one degree or another, suppressed by the order of the boss, can be recognized as a mitigating circumstance (clauses “f” and “g” of Part 1 of Article 61). If the subordinate acted under the influence of physical or mental coercion, then the provisions of Art. 40 CC.

When executing a obviously illegal order or instruction, a subordinate may commit not only an intentional, but also a careless crime. For example, he negligently causes the death of a person subjected to physical force by order of his superior. In such cases, criminal liability arises for an independent careless crime.

Failure to comply with a knowingly illegal order or instruction excludes criminal liability.

As for the consent of the victim, consideration of this issue may not take place in general, but only in relation to specific elements of the crime. In the event of deprivation of life and infliction of any harm other than slight harm to health, the consent of the victim has no legal significance.

The consent of the victim to the destruction or damage of his personal property excludes criminal liability, provided that such actions were not committed in a socially dangerous manner and did not entail grave consequences. Beyond this, the issue is regulated by civil law. In this case, we are talking not so much about the consent of the victim, but about the exercise of his subjective right.

Consent of the victim. The law does not recognize a crime for a person to destroy his own property, take his own life, or cause harm to his health. A person’s consent to cause harm to his property eliminates the crime of property infringement, since this is one of the ways to exercise property rights.

Russian legislation makes it criminal to take the life of another person not only with his consent, but also at his request, regardless of his state of health. Art. 45 of the Fundamentals of the Legislation of the Russian Federation on the protection of the health of citizens contains a direct ban on euthanasia. The ability of citizens to manage their health is also limited. If minor harm to health is caused (in criminal proceedings this is a matter of private prosecution), then the consent of the victim will be the basis excluding criminal liability and criminality of the act, but in the case of grave and moderate harm, the same consent can only serve as a circumstance mitigating the punishment.

So, a person’s consent to cause harm to his personal interests excludes criminal liability only under certain conditions.

1. The person who agrees must actually have the right to dispose of the good or right to which he allowed damage or which he conceded. Such benefits include property and personal rights. If the person who caused the harm was mistaken in good faith regarding the ownership of any right, then the issue of his liability is resolved according to the rules of mistake of fact.

2. A person’s consent may be given within the limits of his disposal of his personal and property rights.

We have already considered the limits of disposal of life, health, honor and dignity. Here it should only be pointed out that the disposal of property is not unlimited. You can give consent to dismantle your own house, but you cannot give permission to blow it up, since this may harm the interests of third parties.

3. To recognize consent as valid, it must be given by a person who is aware of the nature of the actions being performed and is capable of managing his own behavior, that is, sane and capable. If the person who caused the harm made a mistake in good faith regarding the capacity of the person who gave consent, then the issue of criminal liability is decided according to the rules of mistake of fact.

4. Consent must be voluntary and not forced or obtained through deception. In a situation where the victim, under the threat of using a weapon, transfers his property to the criminal, there can be no question of consent as a circumstance excluding the criminality of the act.

5. Consent must be given before or during the commission of the act causing harm. This differs from forgiveness, which terminates criminal cases for crimes prosecuted as a private prosecution. In all other cases, forgiveness (reconciliation) is only a mitigating circumstance.

6. Consent should not pursue socially harmful goals. Therefore, for example, consent to cause harm to health will be recognized as illegal if it is given with the aim of subsequently avoiding conscription for military service.

7. Consent must relate to a specific time, action and specific benefit, which its bearer allows to be violated. Taken back, it loses its power. It does not matter whether the refusal of consent preceded the actions being carried out that caused harm, or whether it was given during their implementation. Consent must be clearly expressed to the victim, but not necessarily verbally. Sometimes, based on the specific obligations of the case, tacit consent is sufficient.

Differences between extreme necessity and necessary defense

1. If absolutely necessary, the threat can come from completely different sources, including natural disasters. With the necessary defense, the danger always comes from a person. Only a person can be the source of a criminal attack. And harm during the necessary defense can only be caused to a person.
2. If absolutely necessary, harm is caused in material equivalent to third people who are not involved in the initial occurrence of the threat. With the necessary defense, harm is necessarily caused to the person who originally tried to commit a criminal offense.
3. If absolutely necessary, the danger of a threat to human life is eliminated; if absolutely necessary, the possibility of causing significant damage to property is eliminated, and it is protected from attacks.
4. If absolutely necessary, causing damage to the property of third parties did not imply the possibility of a different development of events, a different choice of actions. With the necessary defense, a person could objectively have a choice to run away or ask for help, but at the same time he chose to cause harm in order to save his own life.
5. In cases of extreme necessity and necessary self-defense, the initiative to commit actions to cause harm comes from the person himself.
6. Material damage caused in a state of extreme necessity can be compensated by the person who caused it in full or only in part, depending on the circumstances. With the necessary defense, the harm, of course, is not even partially compensated.

What is necessary defense

Article 37 of the Criminal Code of the Russian Federation says that if there is an encroachment on a person’s life or a direct threat of life-threatening violence, then taking protective measures in response is not a criminal act.

The right to harm the person committing violence belongs to each of us. This right does not depend on the physical and professional training of the defender (Part 3 of Article 37 of the Criminal Code of the Russian Federation), as well as on whether there was an opportunity to call for help, including law enforcement officers.

The subject of defense can be a citizen of the Russian Federation, a foreigner, or a stateless person. Protection can be either oneself or other persons, not necessarily relatives and friends

Necessary defense must not be confused with extreme necessity.

Extreme necessity is also not considered a crime, that is, when damage is caused to the state or citizens to prevent more serious harm (in most cases this is property damage).

For example , when an ambulance driver “demolishes” a car blocking the passage, abandoned by an irresponsible motorist, in order to quickly deliver a seriously ill patient to a medical facility. The ambulance driver acted in a state of emergency, since there was no other way to save the patient’s life.

Read more about extreme necessity and its difference from necessary defense.

A state of extreme necessity is a decision in an emergency situation, when on one side of the scale there is a lesser violation of rights and interests, on the other - a greater one. And harm is caused to other persons. In case of necessary defense, harm in the form of bodily injury or material damage can only be suffered by the attacker. And the attack of the violator is aimed at the life and health of the defending citizen or other persons.

Question: What kind of encroachment must there be for the right of defense to arise?

Most often these are attacks - for example, robbery, causing grievous bodily harm, etc. In some cases, the right to defense will be legitimate if:

• kidnapping;
• illegal entry into a home;
• death threat;
• robbery;
• extortion.

There is no right to self-defense (within the meaning of Article 37 of the Criminal Code of the Russian Federation) for non-violent crimes: fraud, theft, tax evasion, dissemination of defamatory information, etc.

Example No. 1 . On Petrova P.N. a group of teenagers attacked, one of them put a knife to his throat and began to demand money. Petrov used sambo techniques, resisted and was forced to use a traumatic pistol, from the shot of which one of the teenagers died due to massive blood loss. Petrov in this case exercised his constitutional right to protection, provided for in Art. 37 of the Criminal Code of the Russian Federation. The threat with a knife is a reliable fact of danger to Petrov’s life, so he had the right to stop the actions of the attackers in any way he wanted.

But the situation is different

Example No. 2 . Ivanov K.A. emails began to arrive demanding that money be transferred for non-distribution of intimate photographs online. In response to another letter, Ivanov hired an IT specialist, identified the blackmailers and seriously injured one of them. In this situation, an encroachment took place (extortion under the threat of disseminating defamatory information), but it did not give the right to use violence against the criminals, since there was no immediate threat to the life of Ivanov K.A.

From the examples it is clear that the compulsion of self-defense is an evaluative concept. The final conclusion about the legality of defensive actions will be based on the totality of evidence presented to the court.

Protection should not exceed the danger from attack ; defense should be commensurate with the attack.

For an objective assessment, even little things matter: whether the criminal swung a knife or simply held it in his hand, whether the victim’s attacker was weaker or stronger, etc.

The legislation has the concept of “ limits of necessary defense ”. By deliberately exceeding them, the defending person is subject to criminal liability for harm to the attacker.

Many will notice that this is unfair, because a person cannot immediately determine how dangerous the criminal is. In an emergency, he can kill him with the first object that comes to hand. Should the victim be held accountable for this before the law? Must if it is objectively proven that the protection limits have been exceeded.

The Supreme Court of the Russian Federation has published criteria that judges use when considering cases of necessary defense. Therefore, in practice there is uniformity in establishing the facts whether there were grounds to defend oneself and whether the retaliatory actions corresponded to the nature of the attack.

Crimes

Civil law allows us to determine the differences between the concepts described above. The situations are quite similar, because there is a dangerous circumstance in which it is necessary to break the law. Let's say self-defense is needed, because of which the criminal will suffer. The legality of the actions will be justified if self-defense was truly necessary. Let's look at the table to make it clearer what the difference between the concepts is.

The table briefly shows how these situations will differ. The civil law differences between these definitions are obvious. As the characterization shows, the other is the basis for protection, as well as the purpose. Otherwise the situations are similar.

Key criteria

Not every action can be considered an extreme necessity. The recognition conditions are as follows:

1. There is a danger to interests protected by law. It can come from natural forces, faulty machines, animals, or humans. If the subject himself creates a threat and eliminates it himself, he will be held accountable if he provokes a situation with the aim of causing harm to other protected interests.
2. There is a risk of immediate harm. If danger may occur in the future, then only preventive measures are possible that do not involve causing harm (purchase of a fire extinguisher to prevent a possible fire). Past danger cannot be the basis for qualifying actions under Art. 39 of the Criminal Code of the Russian Federation. Extreme necessity is possible in the case when the protected good has not yet been lost.
3. The danger cannot be eliminated by any other means other than causing damage to relationships protected by criminal law. If it is possible to use other measures, then the subject will be responsible for the consequences in accordance with the law.

Another condition is that the limits of legality of extreme necessity must not be exceeded. This means that the damage caused must be less than the damage prevented. The infliction of harm equal in severity to the danger prevented cannot be recognized as an act of extreme necessity. In this regard, for example, saving one’s own life at the expense of the death of another person cannot be qualified under Art. 39 of the Criminal Code of the Russian Federation.

Conditions of emergency

An action is not considered a crime, although it falls under the signs of an act provided for by the Special Part of the Criminal Code of the Russian Federation, but committed in a state of extreme necessity, i.e. to eliminate a danger that directly threatens the personality and rights of a given person or other persons, the interests of society or the state protected by law , if this danger under the given circumstances could not be eliminated by other means and the limits of extreme necessity were not exceeded.

The rules of extreme necessity are applied in the event of a collision between two legally protected interests or two obligations, the simultaneous existence of which is impossible. Thus, it is necessary to choose the lesser of two evils and sacrifice a less significant interest. For example, in order to prevent the breakthrough of a dam located near a populated area, it is necessary to use crushed stone, sand, and rails intended for the construction of a railway to strengthen the dam.

A state of extreme necessity can be recognized if several conditions are met.

1. There is a danger to legally protected interests , which can come from natural forces, machine malfunction, animal disease, human physiological processes, or a socially dangerous encroachment by any person. In a situation where a person himself creates a threat to legally protected interests and eliminates it himself, he will be held liable only in the event of provocation of extreme necessity in order to cause harm to other legally protected interests.
2. There is a danger that threatens to cause harm in the very next moment. If the occurrence of a danger is possible only in the future, only preventive measures that are not associated with causing damage are permissible (for example, buying a fire extinguisher to extinguish a possible fire in the future). The passing of danger, when a legally protected benefit is irretrievably lost, cannot be a basis for carrying out an act of extreme necessity.
3. Elimination of danger is impossible by other means than by causing harm to relationships protected by criminal law. If other methods are possible, in addition to committing acts provided for by the Criminal Code of the Russian Federation, criminal liability cannot be excluded.
4. When causing legitimate harm within the framework of extreme necessity, the limits of extreme necessity should not be exceeded. This means that the harm caused must be less than the harm prevented. Causing harm equal in severity to the harm prevented is not recognized as an act of extreme necessity. Therefore, for example, saving one’s life at the expense of the life of another person cannot be considered legitimate.

Only in exceptional cases, when by causing the death of one person the lives of many are saved, can this be recognized as an act of extreme necessity.

Also read: Types and sources of evidence in criminal proceedings: detailed analysis and examples

Electric train driver B., traveling between two stations, noticed a passenger car crossing the crossing 40-50 m from the crossing. The car appeared unexpectedly from behind the track booth. The train was traveling at a speed of 70 km per hour. The driver decided not to apply emergency braking, as it could cause a train overcrowded with passengers to crash.

In order to soften the blow, B. applied simple braking. As a result, the driver was killed and the passenger was injured. A technical examination confirmed the correctness of B.’s actions. The court recognized that B. acted in a state of extreme necessity, and therefore he was acquitted.

When a person is sincerely mistaken regarding the proportionality of harm, he, of course, objectively commits a socially dangerous act, for which he will be held responsible provided that he is guilty of an incorrect understanding of the harm caused and prevented.

But if the person who made such a mistake did not and could not foresee the true relationship between the harm caused and the harm prevented, for example, due to strong emotional disturbance, due to the lack of guilt, he cannot be held criminally liable.

In the same way, the situation is regulated when a person who caused harm in order to save some other, more valuable good, failed to achieve what he wanted, i.e., he is liable only if there is guilt.

Special cases

An extreme necessity may be the infliction of death on one person in order to preserve the lives of many.

So, for example, the driver of an electric train noticed a passenger car crossing the crossing while moving. The car appeared unexpectedly. The train speed was 70 km/h. The driver decided not to apply emergency braking, as it could cause a train crash and the death of passengers. So he applied normal braking. As a result of a train hitting a car, the driver was killed and the passenger was injured. During the technical examination, the correctness of the driver’s actions was proven. The court found that the perpetrator acted under conditions of extreme necessity.

Illegality of action

Article 39 of the Criminal Code of the Russian Federation contains an indication that compliance with the limits of extreme necessity is mandatory. Otherwise, the person’s actions will be considered criminal.

The limits of extreme necessity are considered exceeded if the subject caused harm that clearly did not correspond to the degree and nature of the danger, as well as the circumstances in which this threat was eliminated, i.e. the damage was equal to or more significant than that prevented (Part 2 of Article 39 of the Criminal Code of the Russian Federation) . In such cases, the perpetrator faces criminal penalties if the harm was caused intentionally.

Extreme necessity is a state of threat of harm to protected interests, in which the elimination of harm is possible only by causing damage to interests that are of less importance from the point of view of criminal law. It arises as a result of human or natural actions. In cases of extreme necessity, a conflict of interests protected by law thus arises. To prevent damage to one of them, it becomes necessary to harm another interest.

So, for example, to prevent the spread of fire along a street in a village, the head of the village council decided to dismantle two houses in the path of the fire despite the objections of the owners. As a result, the fire was stopped and 50 houses were saved.

The actions of the head of the village council formally fall under Art. 167 of the Criminal Code (deliberate destruction of property). But in fact they are not criminal, since they were committed under conditions of extreme necessity. It was not possible to save the homes of other citizens by any other means.

Exceeding emergency limits

According to Art. 39 of the Criminal Code it is not a crime to cause harm to interests protected by criminal law in a state of extreme necessity, i.e. to eliminate a danger that directly threatens the personality and rights of a given person or other persons, the legally protected interests of society or the state, if this danger could not be eliminated by other means and the limits of extreme necessity were not exceeded.

Exceeding the limits of extreme necessity is the infliction of harm that is clearly inconsistent with the nature and degree of the threatening 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 (Part 2 of Article 39 of the Criminal Code). Such an excess entails criminal liability only in cases of intentional harm.

Extreme necessity is a state of threat of harm to legally protected interests that has arisen by the will of man or as a result of the forces of nature, in which it is possible to eliminate (prevent) harm to this legally protected interest only by causing harm to legally protected interests that are less important from the point of view of criminal law .

In such a situation, a kind of conflict of interests protected by law objectively arises; in order to prevent harm to one of them, there appears a need to cause harm to another interest protected by law.

So, in order to stop the spread of fire along a village street during intense winds, the head of the local government of the rural settlement ordered the dismantling of two regular houses, despite the objections of its owners. Thus, the fire was stopped and 48 houses in this settlement were saved.

The actions of the head of a local government body externally fall under the characteristics of Art. 167 of the Criminal Code (deliberate destruction of someone else’s property), however, are not criminal, since they were committed to save a large number of residential houses and outbuildings of other residents of this rural settlement, the protection of which, under the current circumstances, was impossible to ensure by other means not related to causing harm.

Participation in eliminating danger to legally protected interests in a state of extreme necessity is a human right, not a duty. This can only be considered as his moral obligation. For certain categories of persons, the prevention of danger is a legal duty of service due to the assumed contractual obligation. Moreover, such a person cannot avoid eliminating the danger under one pretext or another. A fire brigade member, for example, does not have the right to refuse to put out a fire under the pretext that in doing so he may suffer harm to his health or lose his life.

Causing harm to legally protected interests in a state of extreme necessity excludes the criminality of the act only if certain conditions are met. In the literature, two groups of such conditions are distinguished: those related to the danger that has arisen and those related to the elimination of this danger.

Also read: What happens for phone theft, what article regulates the punishment

Conditions related to the emergency hazard

The legal basis for a person’s actions in case of extreme necessity is the danger that has arisen that directly threatens the personality and rights of that person or other persons, the interests of society or the state protected by law.

The source that caused the danger can be a variety of factors: the action of natural forces (flood, earthquake, etc.), mechanisms and technical units in the event of their malfunction, the emergence and spread of epidemics and epizootics, animal attacks, as well as human actions (for example, careless handling of fire, resulting in a fire as an uncontrolled spread of combustion).

The condition for recognizing a state of emergency is the presence of a danger that needs to be eliminated. Recognition of danger as present depends on the characteristics of the source of danger, the suddenness of its occurrence and transience.

That is why we should talk about the presence of danger not only when it has already arisen, but also when it will inevitably arise in such a development of events and it cannot or is very difficult to eliminate. The danger must be real and not imaginary (that is, existing only in the person’s imagination). The reality of a danger indicates the reality of its existence.

Conditions relating to the elimination of danger when absolutely necessary

Citizens of Russia, foreign citizens and stateless persons have the right to eliminate danger in a state of extreme necessity. Actions to eliminate a danger that directly threatens the personality and rights of a given person or other persons, the interests of society or the state protected by law, are recognized as legitimate if they meet the following conditions.

Firstly, the danger that has arisen under these circumstances cannot be eliminated by other means. If absolutely necessary, possible harm is eliminated by causing harm to another legally protected interest. Therefore, causing harm is lawful only when the threatening danger under the given circumstances cannot be eliminated in any other way, when causing harm to a legally protected interest is the only means of preventing more significant harm.

If, under the current conditions, the danger can be eliminated without causing harm to another legally protected interest, then there is no state of emergency, and the person for causing harm in this case is subject to criminal liability on a general basis.

Secondly, the harm caused by a person’s actions committed in a state of extreme necessity must be less significant than the harm prevented, i.e. the limits of extreme necessity should not be allowed to be exceeded.

Establishing the ratio of the value of prevented and caused harm in a state of extreme necessity presents certain difficulties, which, as a rule, is due to the fact that the caused and prevented harm often relates to different, difficult to compare spheres of life and benefits (property and human life, etc. ). This issue is decided in each specific case taking into account all the circumstances of the case.

State

Harm to other legitimate interests means that harm is caused to the interests of others.

That is why the requirements imposed by law to qualify a state of emergency are much stricter in comparison with assessing the state of necessary defense.

To feel this line, one must understand that harm caused in a state of extreme necessity is inflicted only when a person has no other way to escape from danger.

An important condition for the legal qualification of a state of emergency is the amount of harm caused . This value cannot be equal to or greater than the amount of harm prevented.

Presence of danger

This is one of the essential conditions for recognizing a person’s actions as lawful in a state of extreme necessity. Determining the existence of a danger will depend on the characteristics of its source, the transience and suddenness of its occurrence. That is why it is necessary to talk about the presence of a threat not only when it has already appeared, but also if it is inevitable and difficult or impossible to eliminate.

Citizens of Russia, foreigners and stateless subjects can participate in eliminating the danger if absolutely necessary.

Conditions of legality

, the absence of other ways to eliminate the threatening danger and the amount of harm caused is taken into account

Administrative legislation, excluding the liability of a person who committed an offense in a state of extreme necessity, does not evaluate such actions as an offense.

When assessing a person’s behavior to qualify as a state of extreme necessity, only actions that result in the formation of an offense that bears legally prescribed liability should be recognized as harm caused to them.

A person committing these acts in a state of extreme necessity is not legally recognized as guilty, which precludes bringing him to administrative responsibility.

The urgent need is to prevent harm in the short term.

First, let's look at a few examples from judicial practice.

The head of the kindergarten, S., entered into a contract to repair damage to the roof of the main building and install PVC windows without bidding, for which she was brought to administrative responsibility (Part 2 of Article 7.29 of the Code of Administrative Offenses of the Russian Federation). The woman did not agree with this punishment and went to court. The court sided with her. According to the inspection reports of the preschool educational institution, due to damage to the roof, numerous leaks appeared on the ceilings in the groups, fungus formed, and there was a possibility of short-circuiting the electrical wiring - that is, a situation arose that threatened the life and health of kindergarten students and workers. The window frames dried out, large gaps formed between them and the wall, there was a possibility of the window falling out of the opening, and there were strong drafts in the medical room due to leaky frames. The court concluded that the manager acted in a state of extreme necessity - her actions were aimed at eliminating the threat as quickly as possible[1].

Now let’s look at another case - about bringing to justice under Part 2 of Art. 7.29 of the Code of Administrative Offenses of the Russian Federation for similar actions[2]. The school director entered into an agreement for the overhaul of the school building with a single contractor in the amount of over 113 million rubles. without bidding. Challenging the sanctions applied to her in court, she referred to the emergency condition of the building and the need for urgent action - repairs had to be completed before the start of the new school year. It would seem that the situations are similar, but the court did not agree with the argument of extreme necessity. After all, the emergency condition of the school was initially revealed back in 2010 and was confirmed again in 2012. Thus, the director had the opportunity and time to comply with the tender requirement. The court found that no evidence of prevention or threat of harm was provided.

In the third dispute[3], the municipal enterprise took water from the lake to supply water to industrial enterprises, water supply to the population of the village and for its own technological needs. At the same time, the enterprise did not have a water use agreement on water intake for drinking and domestic water supply, which, according to the administrative body, is an offense (Article 7.6 of the Code of Administrative Offenses of the Russian Federation). The municipal unitary enterprise was brought to justice with a fine of 50 thousand rubles. The company challenged the sanctions in court. During the consideration of the case, it turned out that the company was denied an extension of the relevant contract. The reason for the refusal is the lack of sanitary and epidemiological examination. But the plaintiff took measures aimed at conducting such an examination. The enterprise could not interrupt the water supply to the settlement due to the threat of adverse consequences for the population; the water intake was actually paid for under the water use agreement for industrial needs. According to the court, all this testified to actions in a state of extreme necessity, which do not constitute an administrative offense.

The court <[4] came to a similar conclusion about action in a state of extreme necessity in the case of bringing to justice the PKU - a colony that similarly extracted water to supply prisoners and the population of the village, as well as objects of social importance (school, kindergarten, etc. .). It was noted that the institution acted to prevent negative social consequences and unrest in the colony.

The argument about the existence of extreme necessity is often found in disputes about the lack of a license (permit). Moreover, much more often the courts reject the arguments of the person held accountable. For example, a kindergarten operated for several years without a license for educational activities, for which it was prosecuted under Part 1 of Art. 19.20 Code of Administrative Offenses of the Russian Federation with a fine of 170 thousand rubles. When challenged in court, the DOU referred to extreme necessity, because it provided services, the right to which is enshrined in the Constitution of the Russian Federation, in the interests of the residents of the village. But the argument was rejected, including due to the long period of activity without a license[5].

In another case<[6], the medical office of a kindergarten operated without a license to carry out medical activities (same part 1 of article 19.20). The management of the preschool educational institution also believed that they were acting in a state of extreme necessity, because by providing pre-hospital medical care they were preventing possible harm to the life and health of children. However, the court rejected this argument.

So, we see that the court takes the side of the involuntary violator only if little time has passed between the onset of an emergency and the corresponding actions of the institution’s management.

Acceptable conditions for causing harm

Understanding the nuances of a state of emergency, it is worth paying attention to the root causes that pose a threat.

The basis for causing harm when absolutely necessary is an individual who, through his actions, causes harm or threatens to cause harm to another person.

And also, the root causes include uncontrolled natural phenomena (earthquake, fire, flood, hurricane, etc.); animals that have attacked a person (wild or domestic); faulty car. The list of root causes is not closed.

Causing harm can be justified only if the person had no other way to save the most valuable good.

Having discovered a threat, he must try to find a non-illegal way to prevent or eliminate such a threat. When such a path is not found, then measures are taken to the least extent that violate legally protected interests. In other words, actions are committed consciously, actions that constitute an offense, but are the least dangerous.

The question rightly arises of comparing the harm prevented and caused. They are compared by taking into account the social state of the interests being violated with those being protected.

For example, when comparing human life or health with property interests, preference will certainly be given to the first.

In circumstances where the protection of some property interests has become a consequence of the violation of other property interests, the assessment of harm is made according to the criterion of the cost perception of the harm prevented and caused.

It should be noted that exceeding the limits of extreme necessity entails criminal liability , according to Article 39 of the Criminal Code of the Russian Federation .

The harm to be prevented must be real.

Even a superficial analysis shows that the main argument cited by those held accountable is the possible prevention of harm. Often, an extreme need is seen only in this: a threat of negative consequences has arisen - they must be eliminated - which means that elimination is an extreme necessity.

Meanwhile, this approach is fundamentally wrong. Title of article 2.7 “Extreme necessity” of the Code of Administrative Offenses of the Russian Federation speaks for itself: the word “extreme” means that a person has exhausted all possibilities to eliminate the threat and is forced to commit actions that would normally qualify as an offense.

Therefore, first of all, in order to be released from liability, it is necessary to investigate:

a) whether the person had the opportunity to act differently; b) whether all necessary measures were taken for this; c) in what circumstances the person acted.

Even seemingly insignificant details, such as the calendar date of the action, play an important role.

An example from the commercial sphere[7], but perfectly illustrating the above: a privately practicing dentist performed an operation to remove the root of a tooth without the appropriate license, and this, according to Rospotrebnadzor, constitutes an offense under Part 2 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation (the individual entrepreneur did not have the right to perform the operation, the patient developed complications). But the court decided otherwise, since the patient went to the dentist during the New Year holidays, when it was not possible to go to other medical institutions, the condition was critical, and there was a threat to life. The court concluded that the dentist acted in a state of extreme necessity, and the harm caused was significantly less than what was prevented. The decisive factor was that the tooth extraction was performed on a holiday, a non-working day. If a similar operation had taken place on a business day, the person operating without a license would have been held liable: the doctor could have referred the patient to another operating medical facility that lawfully practiced such operations.

In our very first example, you can also pay attention to the time of concluding a contract without holding a tender: the kindergarten was functioning, the children were directly in the building - and defects in the roof directly threatened their health and life, drafts associated with the wear of old window frames did not allow full-fledged provision medical care for children. Of course, it was possible to suspend the activities of the institution, but this would inevitably lead to negative social consequences for the students and their parents. In the second example, with a school, the emergency condition of the building was identified a long time ago, repairs could have been carried out during the summer holidays, that is, the organization had time to comply with the law.

Thus, a person should have no choice but to commit an offense, and this offense should prevent greater harm than that which arises from its commission (minimize negative consequences).

In the example with a license to carry out medical or educational activities, organizations had the opportunity to obtain the appropriate permission, but for a long time they did not take appropriate measures to comply with the law - in fact, they independently created a situation in which they violated the requirements established by law.

However, not only the situation in which the offense was committed is of great importance, but also the harm itself, which the person’s actions are aimed at preventing:

a) the harm caused must be less significant than the harm prevented;

b) the harm prevented must be real and not speculative.

An excellent example is the following case: a water utility was held liable under Art. 12.33 of the Code of Administrative Offenses of the Russian Federation for damaging the road surface during excavation work and was fined 200 thousand rubles. The courts of the first and appellate instances agreed with the correctness of the sanctions, but the district court considered that the water utility acted in a state of emergency, since the opening of the roadway was carried out to repair the damaged water supply and sewerage network in order to prevent greater harm: residents could be left without water supply and sewerage , and the right of an indefinite number of people to a favorable environment could also be violated. In addition, if the soil is washed out and there is no repair work after the top layer of soil thaws, the roadway could collapse, which would create a significant danger for road traffic. After the repair work, the water utility compacted the soil and filled the hole with gravel. Thus, the damage caused to the roadway was less than what was prevented. The arbitration court satisfied the request to recognize the decision on bringing to liability illegal[8].

But in another dispute - see Resolution of the Fifth Arbitration Court of Appeal dated February 11, 2016 No. 05AP-390/2016 in case No. A51-22816/2015 - the State Unitary Enterprise was unable to prove that it violated the procedure for carrying out excavation work in order to eliminate the accident, the courts rejected the argument about extreme necessity.

Let’s return again to the example of the lack of a license for a medical office in a kindergarten. In this case, licenses are not just a formality. This may mean that the institution does not comply with all the requirements for the provision of medical care (medical room equipment, specialist qualifications, etc.), but the actions of the medical staff themselves (examination for lice, nutrition control, etc.) do not prevent any or proven negative consequences, there is no immediate threat to the life and health of children. The kindergarten had time to enter into an agreement with the relevant medical organization or take steps to obtain a license. That is, the assumptions and arguments of the preschool educational institution about the presence of prevented harm are subjective; it is impossible to reliably establish how realistic the onset of negative consequences from a short-term suspension of the work of the medical office before obtaining a license. But if the medical staff of this kindergarten acted without a license in an emergency situation (for example, preventing a specific threat of poisoning), the court would consider this violation an emergency.

Thus, without any evidence of the presence of circumstances allowing a person’s actions to be classified as committed in conditions of extreme necessity, it is impossible to talk about exemption from administrative liability under Art. 2.7 Code of Administrative Offenses of the Russian Federation.

All of the above can be boiled down to one word – danger. Preventing danger will ultimately be an action in a state of extreme necessity. Thus, the municipal unitary enterprise received boiler houses for operation from another organization (at the stage of bankruptcy). The enterprise did not have time to obtain the required license, but it could not leave the population without heating, since there was a danger to people’s lives and health[9].

In the example with water supply, actions were also dictated by the prevention of epidemics that are possible in a situation where the population is left without water; and so on.

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, they shoot at him or hit him 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.

We must remember! In a state of necessary defense, the harm caused is directed exclusively to the attacker and no one else.

Necessary defense

Necessary defense

Necessary defense is the lawful protection of the personality and rights of the defender and other persons, as well as the interests of society and the state protected by law from a socially dangerous attack by causing harm to the attacker.

Article 13 of the Constitution of the Republic of Kazakhstan proclaims in paragraph one: “Everyone has the right to recognition of his legal personality and the right to protect his rights and freedoms in all ways that do not contradict the law, including necessary defense,” according to which Article 32 of the Criminal Code establishes: “It is not a crime causing harm to an attacker in a state of necessary defense, that is, when protecting the person, home, property, land plot and other rights of the defender or other persons, protected by the laws of the interests of society or the state from a socially dangerous attack by causing harm to the offender, if this was not allowed exceeding the limits of necessary defense."

The institution of necessary defense has been known for a long time and exists in the criminal law of many states, but it continues to cause scientific controversy, hundreds of scientific studies have been devoted to it, and the relevant legislative norms are subject to change.

All persons have the right to necessary defense equally, regardless of their professional or other special training and official position. This right belongs to a person regardless of the possibility of avoiding a socially dangerous attack or seeking help from other persons or government bodies.

This right follows from the natural right inherent in every person from birth to protect himself from any attack. These actions, although outwardly they fall under the characteristics of an act provided for by criminal law, are in essence socially useful, since they serve the interests of preventing and preventing crimes.

Citizens have no legal responsibility to carry out an act of defense. This is their subjective right. However, in some situations, defense against criminal attack may be a moral obligation, a public duty of a citizen. At the same time, in a number of cases, a certain category of persons has not so much a moral, but also a legal obligation to defend themselves from an attack that has arisen. This responsibility rests with employees of law enforcement agencies (police, prosecutor's office, national security, etc.). Carrying out the act of necessary defense is their official duty. Failure to fulfill this obligation entails disciplinary or criminal liability.

The theory of criminal law of the Republic of Kazakhstan has developed (taking into account judicial and investigative practice) the conditions for the legality of the necessary defense. They relate to both encroachment and defense against it.

Thus, in accordance with the conditions of legality related to an encroachment, an act of necessary defense must be: a) socially dangerous; b) cash; c) valid (real).

By a socially dangerous attack, protection from which is permissible, we must understand an act provided for by the Special Part of the Criminal Law, regardless of whether the person who committed it was brought to criminal responsibility or was released from it due to insanity, not reaching the age of criminal responsibility, or for other reasons.

A person who has caused harm to another person in connection with the latter’s commission of actions, although outwardly containing signs of any act provided for by criminal law, but knowingly for the person who caused it did not pose harm due to the insignificance of the public danger, cannot be recognized as being in a state of necessary defense.

Characterizing an attack during the necessary defense as socially dangerous, the law does not require either the establishment of the guilt of the offender, or his attainment of a certain age, or sanity, that is, it does not require that this act contain all the signs of a crime. In other words, it is enough for it to be dangerous and, based on objective criteria, to be perceived as a criminal attack.

In accordance with paragraph 3 of Regulatory Resolution No. 2 of the Supreme Court of the Republic of Kazakhstan dated May 17, 2007 “On the application of legislation on necessary defense”, in order to recognize a person as being in a state of necessary defense, it is necessary to establish that there has been a commission of a socially dangerous attack and that this the assault served as the basis for the person to commit actions involving the infliction of death or harm to the health of the attacker, in order to prevent or repel this assault.

The main distinguishing feature of the necessary defense, limiting it from other circumstances that exclude the criminality of the act, is the infliction of harm specifically on the offender. If the attack is carried out by a group of people, then harm can be caused to any member of the group, regardless of how active his behavior was.

The encroachment must be valid, that is, it must be objectively socially dangerous. If the person defending himself mistakenly considers the encroachment to be socially dangerous, although it is not, an imaginary defense takes place.

The encroachment must be present, that is, by the time the defense begins, it must begin, but not yet end. The state of necessary defense can also be caused by a socially dangerous attack that is ongoing or ongoing in nature (for example, illegal imprisonment, hostage-taking, etc.).

At the same time, defense against preparatory actions is impossible, since there is no immediate threat of harm in this case. In this situation, to protect against encroachment, it is necessary to contact law enforcement agencies.

A person who deliberately caused an attack in order to use it as a pretext for committing illegal actions (causing harm to health, hooliganism, concealing another crime, etc.) cannot be recognized as being in a state of necessary defense.

Exceeding the limits of necessary defense is recognized as a clear, obvious discrepancy between the defense and the nature and danger of the attack, when death or serious harm to health is deliberately caused to the offender unnecessarily. At the same time, liability for exceeding the limits of necessary defense occurs only in the case when it is established in the case that the defender was aware that he was causing harm that was not necessary to prevent or suppress a specific socially dangerous attack.

The limits of necessary defense are determined taking into account:

- the object of the attack (the type of goods that the defender protects);

- the method chosen by the encroaching person to achieve the result, the severity of the consequences that could occur if the encroachment was completed, whether it was necessary to cause death to the encroaching person or serious harm to his health in order to prevent or suppress the encroachment;

- the place and time of the encroachment, the events preceding the encroachment, the unexpectedness of the encroachment, the number of persons who encroached and defended themselves, the presence of weapons or other objects used as weapons;

— the ability of the person defending to repel the attack (his age, gender, physical and mental state, etc.);

- other circumstances that could affect the real balance of power between the attacker and the defender.

A comprehensive assessment of these characteristics is necessary; non-compliance on any one point does not mean recognition that the limits of necessary defense have been exceeded. The court must justify its conclusion in the verdict with reference to specific circumstances established in the case, indicating a clear inconsistency of the defense with the nature and danger of the attack.

Thus, in the law enforcement practice of legal proceedings when considering cases of necessary defense, the courts of the Republic of Kazakhstan guarantee each citizen of the Republic of Kazakhstan respect for his right to necessary defense. In cases where the limits of necessary defense are exceeded, the courts carefully analyze these cases and strive to give the correct legal assessment.

Judge
from the specialized interdistrict
court for criminal cases

Aktobe region K.A. Mirzabekov

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 cases of extreme necessity, harm is caused to other (third) parties. 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.

Penalties provided

If a person exceeds the permissible limits, he may be subject to criminal prosecution. Because a citizen must remember that his actions must be proportionate to the danger. If he forgets about this, then he will have to answer according to the article.

Exceeding permissible self-defense may result in correctional or forced labor or imprisonment for one year. A similar punishment is applied if serious harm was caused to the health of the attacker. If, during the arrest of the criminal, he was harmed, defined as grave or moderate, then the term will increase to two years.

Note that if the defense led to death, then the victim can be imprisoned for up to two years. A similar penalty applies if the killing occurred in response to a minor threat.

Comparative analysis

Additionally, we will conduct a comparative analysis to make it clear by what criteria one can determine the necessary defense and extreme necessity. Let us emphasize that self-defense can only be used against a person who threatens health and life. If absolutely necessary, the cause of danger can be a citizen in an inadequate state, or an animal, a mechanism or an emergency situation.

Let's continue the comparison, and now we'll figure out how to eliminate the threat. In self-defense, the main condition is to cause harm exclusively to the criminal. In case of urgent need, damage may be caused to both persons and objects or animals. For example, they will demolish someone else’s barn so that the fire does not spread through it to another house.

Similar rules apply to both Russia and Ukraine. Therefore, citizens should remember these points. Otherwise, you may fall under the article if the permissible measures to eliminate the threat are exceeded.