Liability for violations committed when absolutely necessary

Criminal Code of the Russian Federation in the latest edition:

Article 39 of the Criminal Code of the Russian Federation. Urgent necessity

1. It is not a crime to cause harm to interests protected by criminal law in a state of extreme necessity, that is, 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 at the same time, the limits of extreme necessity were not exceeded.

2. Exceeding the limits of extreme necessity is considered to be the infliction of harm that is clearly inconsistent with the nature and degree of the threatened danger and the circumstances 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 criminal liability only in cases of intentional harm.

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Comments on Article 39 of the Criminal Code of the Russian Federation

The institution of extreme necessity regulates situations in which a danger threatening one interest protected by law can be eliminated only by causing harm to another or other interests also protected by law, for example, personality, property, public safety, etc.

In its socio-legal essence, extreme necessity is the salvation of a more valuable good by sacrificing a less valuable one , also protected by law. The social and legal justification for such an act is explained by the fact that more dangerous harm is prevented and more valuable is preserved.

The basis for causing harm to legally protected interests is a danger that directly threatens the individual, the interests of society and the state.

The general characteristic features of danger in cases of extreme necessity are its spontaneity and uncontrollability.

Urgent necessity

Extreme necessity: concept, conditions for the legality of causing harm

It is not a crime to cause harm when absolutely necessary , i.e. to prevent or eliminate a danger that threatens a person, his rights and interests or the rights and interests of another person, society or state, if this danger could not be eliminated by other means and the harm caused is less significant than the one prevented. Liability does not arise in cases where the measures taken cause harm, but the danger could not be eliminated.

Actions committed in a state of extreme necessity are not only not a crime due to the absence of a sign of social danger, but, on the contrary, are recognized as socially useful , because they are aimed at saving the greater good. That is why active counteraction to the impending danger is the right of all citizens without any exceptions.

In certain cases that do not involve significant risk to themselves, such a right becomes their responsibility, such as, for example, when providing assistance to a person in a life-threatening condition. For doctors, police officers, firefighters and some other categories of employees, the protection of legally protected goods is their official duty, failure to fulfill which may result in liability, even criminal liability.

The following conditions should be taken into account:

1) imminent danger;

2) cash;

3) real;

4) it cannot be eliminated by other means (harm is a necessary measure);

5) coming from a person;

6) emanating from the elemental forces of nature;

7) coming from animals;

the harm caused is less than the harm prevented (both in quantity and quality).

A person’s involvement in creating a danger does not exclude his right to save any good . It does not matter whether the danger was created by intentional or careless actions. At the same time, in such cases, saving another good does not exclude liability for causing harm to those interests that suffered as a result of the culpable creation of danger.

Causing harm to prevent danger must be forced . This means that the person does not have the opportunity to save the good in a non-harmful way, i.e. causing harm is the only possible measure. Such a categorical requirement explains the name of the institution in question - extreme necessity.

Establishing the compliance of protection with the threatened danger is carried out by comparative assessment of the nature and severity of possible harm and actually caused harm, taking into account the specific situation of the implementation of rescue measures and the mental state of the person taking such measures. If a person had a real opportunity to prevent danger in several ways, causing harm of varying severity, then he has the right, at his own discretion, to choose any of these methods, and not just the least harmful one.

The criminal legal assessment of causing greater harm depends on the mental attitude of the actor to the fact of exceeding protective measures. Measures to eliminate the danger may be unsuccessful if the good being saved nevertheless suffers damage. The law considers harm caused in a state of extreme necessity if actions taken to prevent danger did not achieve their goal and the harm occurred despite the efforts of a person who in good faith expected to prevent it.

Since, as a result of measures to save one good, damage is caused to another legally protected good, the victim has the right to count on compensation for the damage caused. According to the general rule provided for in Art. 936 of the Civil Code, the obligation to compensate for damage caused in extreme cases rests with the person who caused it. However, taking into account the circumstances of the harm, the court may impose the obligation to compensate it on the third party in whose interests the person who caused the harm acted, or exempt both this third party and the person who caused the harm from compensation for damage in whole or in part.

If the limits of extreme necessity are exceeded, criminal liability arises, but this circumstance mitigates liability. If the limits of extreme necessity are exceeded, liability arises when harm is intentionally caused. If harm is caused through negligence, then criminal liability does not arise.

An error in the presence of circumstances excluding the criminality of an act occurs not only in the case of necessary defense (imaginary defense), but also in cases of extreme necessity. We are talking about a situation where a person is mistaken about the existence of circumstances of extreme necessity. In the presence of such situations, the act is assessed based on the specific circumstances of the case: it is equated to extreme necessity or qualified as a careless crime.

It should be borne in mind that material damage caused in extreme cases is, as a rule, compensated by the person who caused it. For the effective use of this institution in social practice, such a procedure for compensation for harm is a deterrent and reduces the effectiveness of its use in social practice.

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Conditions for the legality of extreme necessity

The conditions for the legitimacy of extreme necessity related to the imminent danger are:

• a variety of sources of danger , which may include dangerous human actions, natural forces (hurricanes, cyclones, tsunamis, earthquakes, floods, fires and other uncontrollable natural phenomena), faulty machines and mechanisms, explosives and explosive devices, radioactive materials, etc. etc., attacks by wild or domestic animals, human physiological needs for food, nutrition, rest, warmth, etc.;
• presence of danger , which means the temporary presence of danger: it has already arisen and has not yet been exhausted;
• reality of danger , i.e. its existence in the real world, and not in the imagination of the actor.

Conditions for the legality of extreme necessity related to actions in a state of extreme necessity are:

• if absolutely necessary, it is permissible to protect a wide range of legally protected interests;
• in case of extreme necessity, harm, as a general rule, is caused not to the source of danger, but to third parties, their property or their legally protected interests;
• causing harm in this case is the only means of eliminating the impending danger. A mandatory requirement that determines the legality of causing harm in conditions of extreme necessity is the impossibility of eliminating the danger by other means than causing harm to other legally protected interests. If there was another possibility of eliminating the danger than causing harm, there is no state of emergency.
• the limits must not be exceeded .

Concept of necessary defense

Having mentioned the state of necessary defense, let us understand the differences between extreme necessity and necessary defense.

A person’s behavior in a state of necessary defense is nothing more than an action, justified from a legal point of view, and aimed at protecting himself from an attacker by causing him harm.

The legality of the state of necessary defense is assessed based on the combination of the following conditions: the attack must be committed in reality and be real , i.e. have the beginning of action or be in a state of “about to begin.”

A person should begin to defend himself not when, for example, he is shot at or hit in the face, but when the reality of this arises . It is allowed to defend not only personal rights and interests established by law, but also the rights and interests of other citizens , even complete strangers.

In a state of necessary defense, harm is necessarily caused to the attacker. When defense is carried out without causing such harm, it is not recognized as a state of necessary defense.

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

Distinguishing between crime and extreme necessity

Sometimes judicial practice specifically emphasizes the need to distinguish between individual crimes and outwardly similar situations of extreme necessity. For example, in paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 N 19 “On judicial practice in cases of abuse of official powers and exceeding official powers” ​​the following is stated:

“In cases where an act containing signs of abuse of official powers (Article 285 of the Criminal Code of the Russian Federation) or excess of official powers (Article 286 of the Criminal Code of the Russian Federation) is committed by an official to eliminate a danger that directly threatens the individual, the legally protected interests of society or the state, and this danger could not be eliminated by other means, then such an act cannot be considered criminal, provided that the limits of extreme necessity (Article 39 of the Criminal Code of the Russian Federation).”

For example, in paragraph 30 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2013 N 24 “On judicial practice in cases of bribery and other corruption crimes” the following is stated:

“The transfer of a bribe or the subject of commercial bribery under the influence of extortion should be distinguished from the non-criminal actions of a person forced to transfer money, valuables, other property, provide property rights, provide services of a property nature to an official or a person performing managerial functions in a commercial or other organization, in a state of extreme necessity or as a result of mental coercion (Article 39 and Part 2 of Article 40 of the Criminal Code of the Russian Federation), when there were no other legal means to prevent harm to the legally protected interests of the owner of the property or the persons represented by him. In this case, the property received by an official or a person performing managerial functions in a commercial or other organization must be returned to its owner.”

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.

Also read: Responsibility for theft of money, what to do and is it possible to return the funds

In fact, these actions are socially beneficial .

Let's consider the difference between necessary defense and extreme necessity.

In a state of necessary defense, harm is caused to a specific person - the source of the threat of attack or the one committing the attack itself. The harm caused to him in this case should be minimal.

Behavior in a state of necessary defense, as a rule, retains the ability to choose means to repel an attack. In a state of extreme necessity, harm is caused to other (third) persons. Those. innocent persons. These are not only individuals, but also legal entities. The amount of harm caused to another person should not be equal to or greater than the harm prevented.

So, the difference between necessary defense and extreme necessity is that behavior in a state of extreme necessity involves choosing only those means to eliminate danger that cause the least harm. And with the necessary defense, comparison of the harm caused with the harm prevented is excluded.

The difference between extreme necessity and necessary defense

The distinction between necessary defense and extreme necessity is made on the following grounds:

• 1) by sources of danger - in the case of necessary defense, such a source is a socially dangerous human act, and if absolutely necessary, danger can be posed by both human actions and other sources: animal behavior, natural disasters, technical accidents, etc.;
• 2) according to the method of causing harm - in case of necessary defense, causing harm is allowed regardless of the opportunity available to the defender to avoid the attack or turn to the authorities; if absolutely necessary, causing harm is the only way to eliminate a danger that directly threatens the interests of the individual, society and the state;
• 3) according to the direction of the harm caused - with the necessary defense, the harm is caused to the person committing a socially dangerous act, i.e. directly encroaching on the personality and rights of the defender or other persons, on the interests of society or the state; if absolutely necessary, the danger to the protected object is eliminated by causing harm not to the source of danger, but to other objects;
• 4) according to the proportionality of the harm prevented and caused - with the necessary defense, the harm caused to the offender may be equal to or greater than the harm prevented; if absolutely necessary, it is obligatory to cause less harm than the harm prevented.

Exceeding emergency limits

Exceeding the limits of extreme necessity is considered to be the infliction of harm that is clearly inconsistent with the nature and degree of the threatened danger and the circumstances in which the danger was eliminated, when harm was caused to the specified interests equal to or more significant than that prevented. Such an excess entails criminal liability only in cases of intentional harm.

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A person's misconception regarding the conditions for emergency

The danger eliminated as a matter of extreme necessity must be immediate , i.e. creating such conditions under which immediate failure to eliminate this danger will lead to harm to the legally protected interests of the individual, society or state. Therefore, conditions of extreme necessity will be absent if the danger is only possible, probable . In this regard, for a correct legal assessment of the situation, it is very important to establish a person’s subjective attitude to the events taking place, his perception of the situation.

If a person was mistaken in assessing the situation, although according to the circumstances of the case he could and should have assessed it correctly , then his actions may involve a crime related to causing harm through negligence.

If there was a conscientious error of the person and the circumstances of the incident did not make it possible to correctly assess the situation, we can talk about innocent causing of harm. However, these conclusions can only be drawn on the basis of the entirety of the data on the incident in each specific case.

What does judicial practice show under this article?

The concept in criminal law is very subtle, so there are various examinations to determine it. To establish the limits of extreme necessity, the court takes into account all possible circumstances - from the person’s behavior to the participation of other parties in the crime.

Examples of cases:

1. Citizen K. was driving on an icy road, observing traffic rules. There were also 2 passengers in his car. At a sharp turn, he almost collided with a car that was going too fast, K. skidded, and, trying not to collide, he drove into a local store. The passengers survived but were injured. K. was released from criminal liability for causing damage to property and compensation for damage. It was not his fault, the traffic violator was forced to pay for the damage - the car was driving too fast and caused the accident.
2. Citizen E. was driving along a country road at night when a motorcyclist crashed into her. Both cars were damaged, the motorcyclist had broken legs and was bleeding. E. tried to call an ambulance, but there was no connection. She stopped the car and asked the driver to go to the hospital, but he didn't want to. Then she pushed him out of the car, put the motorcyclist in and took him to the rescue. Her actions were justified and she avoided criminal liability.
3. Citizen U. decided to dry his laundry over a gas stove. It caught fire and threatened to go onto the wallpaper, then he grabbed it and threw it out the window into the snow. Unfortunately, there was a vehicle standing in the place where the laundry fell. It caught fire and exploded. U. was found guilty of careless handling of fire. His actions were not regarded as an emergency, since the fire could have been extinguished in another way.

What decisions are most often made under Article 39?

The article is a mitigating circumstance in criminal practice, therefore decisions on it are often acquittal. But accusatory options also occur, since sometimes citizens mistakenly believe that they are acting lawfully, but in fact such actions could have been avoided.

Features of application

Article 39 is included in the Special Part of the Criminal Code, so its interpretation can be understood in different ways. To determine the exact motive or purpose of the crime, the court must take into account all the circumstances. For example, if a person’s child is sick, and he stole a neighbor’s car so as not to wait for an ambulance, and got into an accident due to running a red light, then his actions are not considered an emergency. It was easier and safer to wait for specialized help than to expose yourself and the victim to greater risk.