Article 37 of the Criminal Code of the Russian Federation. Necessary defense

Criminal Code of the Russian Federation in the latest edition:

Article 37 of the Criminal Code of the Russian Federation. Necessary defense

1. It is not a crime to cause harm to an attacker in a state of necessary defense, that is, when protecting the personality and rights of the defender or other persons, the legally protected interests of society or the state from a socially dangerous attack, if this attack was associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence.

2. Protection from an attack that is not associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence, is lawful if the limits of necessary defense were not exceeded, that is, deliberate actions that are clearly inconsistent with the character and the danger of encroachment.

2.1. The actions of a defending person do not exceed the limits of necessary defense if this person, due to the surprise of the attack, could not objectively assess the degree and nature of the danger of the attack.

3. The provisions of this article apply equally to all persons, regardless of their professional or other special training and official position, as well as regardless of the ability to avoid a socially dangerous attack or seek help from other persons or authorities.

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Conditions for the legality of necessary defense

The conditions for the legality of necessary defense related to the attack from which protection is carried out are:

a) public danger of encroachment; b) the validity of the attack; c) the existence of the encroachment.

Public danger of encroachment

Necessary defense is permitted only against socially dangerous attacks . Socially dangerous attacks include actions that immediately upon their commission and inevitably cause the onset of real serious harmful consequences for the individual, society or the state, the infliction of which is, in principle, criminally punishable.

Since the law speaks of a socially dangerous attack, and not of a crime, the necessary defense is permissible against the actions of insane persons, as well as persons under the age at which criminal liability begins (clause 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of September 27, 2012 No. 19 “On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime”).

This condition of legality is also violated and does not create the necessary defense: protection from actions, although formally containing signs of any act provided for by criminal law, but knowingly for the one who caused the harm, did not represent due to the insignificance of public danger (Part 2 of Article 14 of the Criminal Code of the Russian Federation) . In such cases, liability arises for an intentional crime on a general basis.

Lawful actions of officials in the performance of their official duties, even if they involve causing harm or the threat of causing it, do not constitute a state of necessary defense (use of force in cases established by law by law enforcement officers when ensuring public safety and public order, etc.) (Clause 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 27, 2012 No. 19).

The validity of the encroachment as a condition for the legality of the necessary defense

Defense is permissible only against a real attack , i.e. an encroachment that exists in reality, and not in the imagination of the defender. Causing harm during an apparent but not really existing attack, or causing harm to a person who is not participating in the attack, but is mistakenly taken for the attacker (imaginary defense), is unlawful and punishable depending on the guilt.

The defender’s assumption about the existence of an encroachment in the absence of one is called in criminal law either an imaginary defense or an imaginary defense.

Imaginary defense occurs when the encroachment did not exist in reality and the circumstances gave the person absolutely no reason to believe that it was occurring. In such cases, someone's actions are considered an attack out of fear or self-hypnosis. They are qualified as intentional causing harm on a general basis.

Imaginary defense is a type of factual mistake and occurs when the encroachment did not exist in reality, but the person believed that it was happening. The rules for qualifying an imaginary defense are given in paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of September 27, 2012 No. 19.

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 did not and could not realize the error of his assumption, his actions should be considered as committed in a state of necessary defense. If in this case the person exceeded the limits of protection permissible in the conditions of the corresponding real attack, he is subject to liability as for exceeding the limits of necessary defense.

If a person causes harm without realizing the imaginary infringement, but due to the circumstances of the case he should and could have been aware of it, the actions of such a person are subject to qualification under the articles of the Criminal Code of the Russian Federation, which provide for liability for causing harm through negligence.

The existence of an encroachment as a condition for the legality of the necessary defense

The condition of legality is the existence of an encroachment . Establishing this circumstance is associated with determining the initial and final moments of the encroachment. The exercise of the right to necessary defense is possible only during the period of a socially dangerous attack. Thus, defense against a possible attack in the future will be unlawful. However, the state of necessary defense arises not only at the very moment of a socially dangerous attack, but also in the presence of a real threat of attack.

Encroachment begins when an immediate threat is created to legally protected rights and interests. An immediate threat of violence that is dangerous to the life of the defender or another person can be expressed, in particular, in statements about the intention to immediately cause death or harm to health to the defender or another person, dangerous to life, demonstrations to the attacker of weapons or objects used as weapons, explosive devices, if, taking into account the specific situation, there were grounds to fear the implementation of this threat (clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of September 27, 2012 No. 19).

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, torture). The right to necessary defense in these cases remains until the end of such an attack.

The actions of the defender who caused harm to the attacker cannot be considered committed in a state of necessary defense if the harm was caused after the attack was prevented or completed and the use of means of defense was clearly no longer necessary. In these cases, liability arises on a general basis.

Thus, clearly premature defense takes place before the start of the attack and is qualified as an intentional crime on a general basis. Obviously belated defense takes place after the obvious end of the encroachment and forms self-destruction against the encroacher; it is classified as an intentional crime on a general basis. If the actions of a person after the obvious end of the assault were committed in a state of passion, the act is nevertheless qualified under Art. 108, 114 of the Criminal Code of the Russian Federation.

What is necessary defense and its limits?

Necessary defense (Article 37 of the Criminal Code of the Russian Federation) is the lawful suppression of a socially dangerous attack while protecting the interests of the individual, society or state by causing harm to the offender, which outwardly resembles a crime.

Causing harm to an offender is the natural right of any person. According to Part 3 of Art. 37 of the Criminal Code of the Russian Federation, the provisions of this article apply equally to all persons, regardless of their professional and other special training and official position. The rule of necessary defense also applies in the case when a person has the opportunity to avoid an attack or seek help from other persons or authorities.

The basis for the necessary defense is the commission of a socially dangerous attack by a person, i.e. actions aimed at causing damage to interests protected by criminal law.

Encroachment is often an attack (aggressive, violent and, as a rule, sudden actions), but socially dangerous non-violent actions are also an assault: non-violent robbery, theft, illegal hunting, etc. Socially dangerous actions that do not threaten immediate harm, such as violation of copyright and related rights, accepting a bribe, etc., do not provide grounds for the necessary defense. Socially dangerous inaction is not an encroachment.

With the necessary defense, the obligatory goal is to protect the interests of the individual, society, and state by suppressing socially dangerous encroachment. If a person pursues another goal, for example, revenge in connection with hostile relationships, his actions are qualified on a general basis.

According to paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 27, 2012 No. 19 “On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime” in case of a bona fide mistake (when the situation gave reason to believe that a real socially dangerous crime was being committed encroachment, and the person who applied protective measures did not and could not realize the absence of encroachment), the actions are assessed as committed in a state of necessary defense. A person who has exceeded the limits of protection permissible in the conditions of a corresponding real attack that is not associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence, is subject to liability for exceeding the limits of necessary defense. If a person did not realize that there was no socially dangerous attack, but due to the circumstances of the case he should and could have realized this, his actions are assessed as a careless crime. If the person had no reason to believe that a socially dangerous attack was taking place, an intentional crime was committed.

The assessment of the use of means and mechanisms established in advance for the protection of legally protected interests is devoted to paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of September 27, 2012 N 19, the main meaning of which is that the use of such devices that operate autonomously at the time of the commission of an attack and causing harm to the attacker, the provisions on necessary defense apply. If the harm caused is clearly excessive, then the person’s actions may be considered to exceed the limits of necessary defense.

Conditions characterizing defensive actions: interests protected by criminal law can be protected; protection must be timely; protection is carried out by causing harm to the offender; the limits of necessary defense must not be allowed to be exceeded.

Deliberate actions that clearly do not correspond to the nature and degree of public danger of the encroachment are recognized as exceeding the limits of necessary defense.

In Art. 37 of the Criminal Code of the Russian Federation, attacks are divided into two types:

1) involving violence dangerous to the life of the defender or another person, or with an immediate threat of its use;

2) not associated with such violence or such a threat.

Exceeding the limits for the first type of encroachment is not provided.

According to Part 2.1 of Art. 37 of the Criminal Code of the Russian Federation are not an excess of the limits of the action of the defender, caused by the surprise of the attack, if the person could not objectively assess the nature and degree of danger of the attack.

Deliberately exceeding the limits of necessary defense is socially dangerous, and therefore entails criminal liability in cases of murder or infliction of grievous bodily harm (part 1 of article 108 of the Criminal Code and part 1 of article 114 of the Criminal Code).

Protection from an attack involving violence dangerous to the life of the defender

Criminal law knows two types of necessary defense , depending on the nature of the attack on the defender (absolute and relative).

In the first case, if the attack from which protection is carried out is associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence, the necessary defense is absolute , i.e. allows any harm (including fatal harm) to be caused to the offender. In this situation, raising the question of exceeding the limits of necessary defense in itself is impossible (clause 2, 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of September 27, 2012 No. 19).

As stated above, a socially dangerous attack must be associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence. In this case, the danger to life must be objectively existing, real . Otherwise, the actions of the defender may be regarded as imaginary defense, which entails criminal liability, or, if the defender is in good faith and there is reason to believe that there is a danger to life, the actions of the defender should be assessed as innocent causing of harm.

The presence of a socially dangerous attack involving violence dangerous to the life of the defender or another person may be evidenced, in particular, by:

causing harm to health that creates a real threat to the life of the defender or another person (for example, injury to vital organs);
the use of a method of assault that creates a real threat to the life of the defender or another person (use of weapons or objects used as weapons, strangulation, arson, etc.).

Cheat sheet on criminal law. General part | Page 1 | Online library

Anna Anatolyevna Rozhdestvina

Criminal law cheat sheet

1. SUBJECT, METHOD AND SYSTEM OF CRIMINAL LAW

The subject of criminal law differs depending on the concept of criminal law as:

– branches of legislation;

– branches of law;

– science of criminal law.

The subject of criminal law as a branch of legislation is criminal legislation, i.e. e. a system of norms adopted by the highest body of federal power - the State Duma of the Federal Assembly, defining the principles and grounds of criminal liability, the range of acts declared criminal, the types and amounts of punishment for them, the grounds for exemption from criminal liability and punishment.

The subject of criminal law as a branch of law is criminal legislation and criminal legal relations related to lawmaking and law enforcement. Criminal legal relations arise from the moment the law officially comes into force, when it already begins to have a socio-psychological impact on those unstable citizens who refrain from committing a crime solely because of the threat of punishment.

The subject of the science of criminal law includes:

– commentary – doctrinal interpretation of criminal law;

– development of recommendations for legislation and law enforcement practice;

– study of the history of criminal law;

– comparative analysis of domestic and foreign law;

– development of the sociology of criminal law – studying the real life of criminal law by measuring the level, structure and dynamics of crime, studying the effectiveness of the law, the mechanism of criminal legal regulation, the validity and conditionality of the criminal law, criminalization (decriminalization) of acts;

– study of international criminal law. The subject of criminal law also includes the relationship of criminal law with related branches of law. Criminal law borders on a number of branches of law and sciences: criminology, criminal executive law, criminal procedural law, criminal statistics, administrative, civil, financial, tax, international law, etc.

The method of criminal law is a way of studying the norms of criminal legislation and criminal legal relations.

The main methods of criminal law are:

– legal – includes legal and technical methodology and methods of interpreting the law;

– criminal statistical – knowledge of the qualitative uniqueness of criminal legal phenomena and concepts through quantitative indicators;

– sociological – includes surveys (questionnaires, interviews, expert assessments) of various categories of persons – law enforcement officials, the population, convicts, etc. – on various aspects of criminal law;

– systemic – studies of criminal legal phenomena and concepts are carried out as a study of systems;

– comparative legal (comparative) – used when comparing codes of different legal systems and states;

– historical-comparative, etc.

The criminal law system includes two parts:

1) General - its subject includes four main institutions: criminal law; crime; punishment; exemption from criminal liability and punishment;

2) Special - it contains sections, chapters and articles about specific crimes and the corresponding sanctions for them.

2. OBJECTIVES AND PRINCIPLES OF CRIMINAL LAW

Criminal law sets itself two tasks:

1) protective. It consists of:

a) in protecting from criminal attacks: the rights and freedoms of man and citizen; property; public order and public safety; environment; constitutional system of the Russian Federation;

b) ensuring peace and security of mankind;

2) preventive – it consists in preventing crimes.

The means of solving the protective problem are:

– consolidation of the grounds and principles of criminal liability;

– determination of the range of acts declared criminal;

- establishing punishment for them.

The preventive (preventive) task is solved by the following basic means:

– general prevention of criminal law;

– general and special prevention of punishment;

– norms on voluntary renunciation of crime;

– norms on active repentance;

– rules on circumstances excluding the criminality of an act;

– standards with a double precautionary orientation.

The principles of criminal law are the fundamental, guiding ideas and principles in the field of combating crime enshrined in the norms of criminal law.

Criminal law is based on the principles of: legality; equality of citizens before the law; guilt; justice; humanism.

The principle of legality is expressed in the fact that the criminality of an act, as well as its punishability and other criminal legal consequences, are determined only by the Criminal Code of the Russian Federation. Application of criminal law by analogy is not allowed.

The principle of equality of citizens before the law establishes that any person who has committed a crime is subject to criminal liability; Not all persons are subject to the same limits of criminal liability.

Guilt is a mandatory sign of the subjective side of the crime. Guilt is the internal mental attitude of a person to what he has done. It can be in the form of intent or negligence. A person is subject to criminal liability only for those socially dangerous actions (inaction) and socially dangerous consequences for which his guilt has been established. Criminal liability for innocent causing of harm is not permitted.

The principle of justice is revealed from the point of view of imposing punishment and applying other measures of a criminal legal nature in relation to the person who committed the crime. Punishment or measures of a criminal legal nature must correspond to:

– the nature and degree of public danger of the crime;

– the circumstances of its commission;

- the identity of the culprit.

No one can be criminally liable twice for the same crime.

The principle of humanism is considered in two aspects:

1) criminal legislation ensures human safety;

2) humanism is manifested in relation to the person who committed the crime - suspended sentence, amnesty, pardon, exemption from criminal liability, exemption from punishment, criminal liability and punishment of minors, the use of compulsory medical measures, etc.

3. FEATURES OF THE STRUCTURE OF THE RULES OF THE RF Criminal Code. TYPES OF ELEMENTS OF STANDARDS OF THE RF Criminal Code AND THEIR CHARACTERISTICS

The structure of the norms of the General and Special Parts of the Criminal Code of the Russian Federation differs.

The norms of the General Part of the Criminal Code of the Russian Federation can be:

– positive (regulatory) – their use in itself is not associated with a specific crime;

– law enforcement nature – include coercion.

Positive norms are divided into the following types:

– declarative, establishing the tasks and principles of criminal legislation;

– general regulatory, establishing general regulations and concepts of crime, complicity in a crime, criminal record, etc.;

– encouraging, establishing the procedure for applying a suspended sentence, parole from serving a sentence, replacing imprisonment with another, more lenient type of punishment, etc.;

– permitting, defining the right to necessary defense, causing harm when detaining a person committing a crime, etc.;

– exempt from criminal liability.

Law enforcement rules are rules establishing:

– replacement of one punishment with another in cases of malicious evasion of paying a fine, performance of compulsory labor, correctional labor and restriction of freedom;

– options for actually serving a conditionally assigned sentence or execution of its unserved part in case of non-compliance with the requirements specified in the law during the probationary period for suspended sentences, parole and deferment of serving a sentence for pregnant women and women with young children, various options for actually serving a conditionally assigned sentence are provided punishment or execution of its unserved part. The norms of the General Part are descriptive in nature. The legal norm of the Special Part consists of:

Admissibility of protection from an attack involving violence that is not dangerous to the life of the defender

In the second case, if the attack from which the defender is defending himself is not associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence, the necessary defense is relative in nature and is recognized as legitimate only if the limits of necessary defense are not exceeded.

When protecting objects other than human life, the restrictions established by Part 2 of Art. 37 of the Criminal Code of the Russian Federation. At the same time, it should be borne in mind that in some cases, causing death in the absence of an assault involving violence dangerous to the life of the defender or another person, or with an immediate threat of such violence, may also be lawful. For example, a woman causing death to her attacker during rape should be recognized as lawful.

Failure to comply with the restrictions specified in the law, i.e. exceeding the limits of necessary defense must consist of deliberate actions that are clearly inconsistent with the nature and danger of the attack.

In the case of an encroachment that is not associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence, exceeding the limits of necessary defense is associated with the defender’s awareness of the wrongness and danger of his actions at the time of causing harm. In other words, the defender must clearly realize that he has the opportunity to protect himself from an attack and stop it by using other means of defense, with less intensity, causing significantly less harm to the attacker compared to what was actually caused. Thus, the defender should not strive to reprisal the attacker, but to stop his actions and cause only the harm necessary to repel the attack. But at the same time, the ability of the defender to run away, call for help, or otherwise evade the attack has no legal significance. The presence of such a possibility should in no case be regarded as a factor in exceeding the limits of necessary defense.

Under assault, protection from which is permissible within the limits established by Part 2 of Art. 37, it should be understood as the commission of socially dangerous acts involving violence that is not dangerous to the life of the defender or another person (for example: beatings; causing minor or moderate harm to health; robbery committed with the use of violence that is not dangerous to life or health).

In addition, such an encroachment is the commission of other acts (actions or inactions), including negligence, provided for by the Special Part of the Criminal Code, which, although not associated with violence, however, taking into account their content, can be prevented or suppressed by causing harm to the offender. Such encroachments include, for example, intentional or careless destruction or damage to someone else’s property, rendering life support facilities, vehicles or means of communication unusable (clause 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of September 27, 2012 No. 19).

Necessary defense (Article 37 of the Criminal Code of the Russian Federation)

Necessary defense, as a circumstance that exempts from criminal liability and punishment, represents the lawful behavior of a person resorting to the protection of legally protected values by causing harm to the offender.

A very clear description of the concept of necessary defense was given and developed by the outstanding orator, major ideologist of Ancient Rome, Marcus Tullius Cicero in his defensive speech on the case of Milo.

“There are cases,” said Cicero, “and these cases are not rare, when a person has the right to life over his own kind. And if this right is fair, if it is ever a necessity, then it is in the case when force has to be repelled by force. “Can it really be,” Cicero further said, “that death that strikes a robber, a murderer, can be considered unjust?”

Necessary defense is an inalienable right of the individual. The Constitution of the Russian Federation (Part 2 of Article 45) recognizes the right of everyone to defend their rights and freedoms by all means not prohibited by law. All persons have the right to necessary defense equally, regardless of 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 authorities.

According to Part 1 of Art. 37 of the Criminal Code of the Russian Federation, it is not a crime to cause harm to an attacker in a state of necessary defense, that is, when protecting the personality and rights of the defender or other persons, legally protected interests of society or the state from a socially dangerous attack, if this attack was associated with life-threatening violence defender or other person, or with an immediate threat of such violence.

An action called necessary defense is lawful and socially useful if it is performed in a state of necessary defense, i.e. under circumstances that, on the one hand, indicate the grounds and conditions for the protection of legally protected interests from socially dangerous encroachment, on the other hand, indicate the limits of such protection, allowing to avoid causing clearly unnecessary harm to the encroacher.

The conditions for the legality of necessary defense are usually divided into those related to encroachment and defense.

The conditions for the legality of necessary defense related to an encroachment are: 1) the social danger of the encroachment, 2) the presence of the encroachment, 3) its validity, reality.

The first sign of necessary defense is its foundation. The law defines it as a socially dangerous encroachment , that is, an act that, firstly, causes the need to cause harm in order to protect the relevant legally protected interests or creates a threat of harm, secondly, has a criminal legal nature, and, thirdly, is associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence.

The law recognizes the interests of the individual, society and state, the rights of the defender or another person as objects of encroachment during necessary defense. They can be different in their significance: human life and health, personal freedom, honor and dignity, property, public safety and public order, public health, environmental safety, state security, peace and security of mankind, etc. The nature of the target of encroachment decisively influences the degree of its danger, and, consequently, the choice of means of protection against it.

The right to defense gives rise only to a socially dangerous encroachment against a criminal, criminally punishable encroachment , for example, when repelling attempted murders or causing harm to health, as well as when suppressing rape, kidnappings, robberies, robberies, bandit raids, extortion, vehicle thefts and other attacks on property, hooliganism, etc.

At the same time, it is not required that the encroachment be necessarily criminal. It is enough for it to be socially dangerous and, based on objective criteria, to be perceived as a criminal attack. Therefore, the necessary defense against an attack by a mentally ill person, a minor, or a person acting under the influence of a factual error that eliminates his guilt is permissible. One cannot but agree with the opinion of A.F. Kony that “a person who has been attacked has no time to think whether he is being attacked consciously or unconsciously.”

The socially dangerous attack in question must be associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence . In this case, the danger to life must be objectively existing and real.

According to the explanation contained in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2002 No. 29 “On judicial practice in cases of theft, robbery and robbery”, “violence dangerous to life or health should be understood as violence that caused grave and moderate harm to the health of the victim, as well as infliction of minor harm to health, causing a short-term health disorder or a minor permanent loss of general ability to work, or which, although it did not cause harm to the health of the victim, at the time of application created a real danger to his life or health.” .

Protection from an attack that is not associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence, is lawful if the limits of necessary defense are not exceeded, i.e. intentional actions that clearly do not correspond to the nature and danger of the attacks (Part 2 of Article 37 of the Criminal Code of the Russian Federation). The actions of a defending person do not exceed the limits of necessary defense if this person, due to the surprise of the attack, could not objectively assess the degree and nature of the danger of the attack (Part 2.1 of Article 37 of the Criminal Code). In such situations, in the absence of an objective assessment of the circumstances of the attack, there is no intent to exceed the limits of necessary defense, and therefore causing harm in such situations is recognized as legitimate.

A person who deliberately caused an attack in order to use it as a pretext for committing illegal actions (starting a fight, committing reprisals, committing an act of revenge, etc.) cannot be recognized as being in a state of necessary defense. What was done in such cases should be qualified on a general basis.

Necessary defense is not acceptable:

- in cases of violence against a person who has himself been attacked and is trying to defend himself or detain the criminal;

- in relation to lawful actions of officials (for example, the lawful detention of a person who has committed a crime). This rule, however, does not apply to clearly illegal actions of officials who infringe upon the legitimate rights and interests of citizens through abuse of official position;

- against actions that were themselves committed in a state of necessary defense;

- when repelling a minor attack that does not pose a great public danger.

The second condition of legality is the existence of an encroachment . Availability presupposes that an encroachment has begun (really close to the beginning), but has not yet ended. It must have the ability to inevitably, immediately cause socially dangerous harm. Establishing this circumstance is associated with determining the initial and final moments of the encroachment. The initial moment of an encroachment is recognized as both the moment of the most socially dangerous encroachment (for example, a thief got into someone else’s pocket), and the presence of a real threat of encroachment, for example, the aggressive-offensive nature of the attacker’s behavior, his armament.

The final moment of the encroachment is associated with its actual cessation. An encroachment can be stopped by achieving the goal that the encroacher has set for himself, by his voluntary refusal, by arrest, or by depriving him of the opportunity to continue the encroachment. From this moment on, the basis for the necessary defense is lost.

The state of necessary defense may also occur if the criminal attack was completed, but the moment of its end was not clear to the defender. In this case, for example, the transfer of weapons or other objects used in the attack from the attacker to the defender cannot in itself indicate the end of the attack.

The third sign related to the encroachment is the reality, the reality of the encroachment. Defense is possible only from a real, objectively existing encroachment, and not from an encroachment that exists only in the imagination of the defender. To recognize an encroachment as existing in reality means to establish that it (the encroachment) was objectively capable of causing significant harm to social relations protected by criminal law. Protection from an imaginary (not real) attack is called imaginary defense. The latter differs from necessary defense in that with imaginary defense there is actually no encroachment, it exists only in the mind of the defender, but arises only on the basis of some real behavior of the victim, mistakenly accepted in a specific situation as a socially dangerous encroachment. The legal consequences of an ostensible defense are determined by the general rules of mistake of fact.

When resolving this issue, judicial practice provides two possible options:

a) 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 did not and could not realize the error of his assumption, his actions are considered as committed in a state of necessary defense;

b) in those cases where, due to the circumstances of the case, the person should and could have foreseen that there is no real social danger and, despite this, causes harm to the alleged offender, the actions of the perpetrator entail liability for committing the corresponding crime through negligence.

The conditions of legality related to protection include: 1) causing harm only to the offender; 2) timeliness of protection; 3) proportionality of protection, i.e. absence of actions that are clearly inconsistent with the nature and danger of the attack.

The first sign related to defense is causing harm only to the attacker (s) or his property, and not to third parties.

In necessary defense, a person acts out of a sense of self-preservation, in order to repel an attack, protect himself, free himself from an attacker, stop an antisocial attack and free himself from harassment and violent acts, etc.

The defender has the right to use active measures to protect himself from a socially dangerous attack by causing harm, regardless of the possibility of avoiding such an attack or seeking help from other persons or authorities (Part 3 of Article 37 of the Criminal Code).

In case of necessary defense, harm can only be caused to the attacker. In an attack 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.” In this case, it is not required that the harm to the attacker be less than that prevented, since causing less harm is not always able to prevent or stop the attack.

Physical harm can include the most serious - taking the life of the attacker, causing serious or moderate harm to health, as well as causing minor harm to health or beating. Property damage can be expressed in damage or destruction of property during defensive actions. If the necessary defense is recognized as lawful in accordance with Art. 1066 of the Civil Code of the Russian Federation, damage caused is not subject to compensation.

Causing harm to innocent people, e.g. to third parties, entails criminal liability depending on the form of guilt for intentional or careless actions, and material damage is subject to compensation.

The second sign is the timeliness of protection . Defense is considered timely if it is carried out within the time that the encroachment itself took, that is, from the beginning of a socially dangerous action until its actual end. The actions of the defender cannot be considered committed in a state of necessary defense if the harm was caused after the attack was prevented or completed, and the use of a means of defense was no longer necessary. In these cases, liability arises on a general basis.

The third feature is proportionality of protection. Proportionality of protection is related to compliance with the limits or exceeding the limits of necessary defense. Compliance with the limits of necessary defense is a sign of its legitimacy. Exceeding the limits of necessary defense in accordance with Part 2 of Art. 37 of the Criminal Code of the Russian Federation recognizes intentional actions that clearly do not correspond to the nature and danger of the attack.

Causing harm to an attacker while repelling a socially dangerous attack through negligence cannot entail criminal liability.

Defense should be recognized as necessary always when the defender had no other means of defense, including special means and weapons, and when only their use made it possible in a given situation to repel an attack.

The use of weapons to repel a socially dangerous attack is an extreme measure that may become a necessary or even the only suitable measure of protection against attacks by persons who actually threaten the life and health of the defender or other persons.

When deciding whether or not the limits of necessary defense are exceeded, it is necessary to take into account not only the compliance 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 an attack, as well as all other circumstances that could affect the actual the ratio of the forces of 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 actions of the defender cannot be considered as committed in excess of the limits of necessary defense and in the case when the harm caused by him turned out to be greater than the harm prevented, and that which was sufficient to prevent the attack, unless there was a clear discrepancy between the defense and the nature and danger of the attack .

In Part 2.1 of Art. 37 of the Criminal Code of the Russian Federation states that the actions of a defending person do not exceed the limits of necessary defense if this person, due to the surprise of the attack, could not objectively assess the degree and nature of the danger of the attack. In such situations, in the absence of an objective assessment of the circumstances of the attack, there is no intent to exceed the limits of necessary defense, and therefore causing harm in such situations is recognized as legitimate.

When committing a crime while exceeding the limits of necessary defense, the defending person bears criminal liability for committing only an intentional crime. The fact of necessary defense in such cases is recognized as a circumstance mitigating punishment (clause "g" part 1 of article 61 of the Criminal Code of the Russian Federation).

The conditions for the legality of necessary defense are usually divided into those related to encroachment and defense.

The conditions for the legality of necessary defense related to an encroachment are: 1) the social danger of the encroachment, 2) the presence of the encroachment, 3) its validity, reality.

Necessary defense is not acceptable:

- in cases of violence against a person who has himself been attacked and is trying to defend himself or detain the criminal;

- against actions that were themselves committed in a state of necessary defense;

- when repelling a minor attack that does not pose a great public danger.

When resolving this issue, judicial practice provides two possible options:

The first sign related to defense is causing harm only to the attacker (s) or his property, and not to third parties.

Causing harm to innocent people, e.g. to third parties, entails criminal liability depending on the form of guilt for intentional or careless actions, and material damage is subject to compensation.

Causing harm to an attacker while repelling a socially dangerous attack through negligence cannot entail criminal liability.

The Supreme Court summarized judicial practice related to the decriminalization of criminal acts

On July 4, the Supreme Court published a Review of the practice of courts applying the provisions of Chapter 8 of the Criminal Code of the Russian Federation on circumstances excluding the criminality of an act, as well as Art. 108 and 114 of the Code, providing for liability for murder and bodily harm if the limits of necessary defense and measures necessary to apprehend the person who committed the crime are exceeded. The document was approved by the Presidium of the RF Armed Forces on May 22.

Noting the downward trend in the number of people convicted of murder when exceeding the limits of necessary defense since 2015, the Supreme Court noted that the issues of application of the provisions of the Criminal Code on circumstances excluding the criminality of an act are explained in Resolution of the Plenum of the Armed Forces of the Russian Federation dated September 27, 2012 No. 19. These clarifications, emphasized in the review, contribute to the uniformity of application of Art. 37, 38, 108 and 114 of the Criminal Code. When considering criminal cases of this category, the courts are also guided by the Resolution of the Plenum of January 26, 2010 No. 1.

The review included legal positions in four categories of cases.

State of necessary defense

The first section of the review concerns the establishment of the state of the necessary defense. Thus, the Supreme Court noted that the courts generally correctly resolved criminal cases related to causing harm while defending against a socially dangerous attack. To establish the limits of necessary defense, such factual circumstances of the case were taken into account as the correspondence of means of defense and attack, the nature of the danger threatening the interests of the defender or other interests protected by law, his strength and ability to repel an attack, the number of encroachers and defenders, their age, physical development, availability weapons, the place and time of the attack, the surprise and intensity of the attack, the moment of its termination, the ability of the defender to objectively assess the degree and nature of the danger threatening him, as well as the ability to determine the moment of termination of the attack (clause 1.1 of the review).

The courts also take into account that a person who provoked an attack is not recognized as being in a state of necessary defense in order to use it as a reason to commit illegal actions, including causing harm to health, hooliganism, concealing another crime, etc. (Clause 9 of Plenum Resolution No. 19). The Supreme Court emphasized that such acts were reasonably qualified without taking into account the signs of necessary defense (clause 1.2 of the review).

In paragraph 1.3, the Supreme Court noted that the courts take into account the form of guilt with which the defender caused harm to the health of the attacker or death, relying on the explanation of the Supreme Court that the infliction of any harm through negligence as a result of the actions of the defending person when repelling a socially dangerous attack does not entail criminal liability (clause 11 of Resolution No. 19).

As indicated in paragraph 1.4 of the review, in some cases, courts of appeal and cassation have difficulties applying Art. 37 of the Criminal Code - in particular, they incorrectly assess situations in which a socially dangerous attack continues and the state of necessary defense remains. They also do not always take into account that the transfer of weapons or other objects used as such from the attacker to the defender cannot in itself indicate the end of the attack, if, taking into account the intensity of the attack, the number of attackers, their age, gender, physical development and other circumstances, there remained a real threat of continuation of the encroachment (clause 8 of Resolution No. 19).

The Supreme Court drew the attention of the courts to the need to take into account that the transfer of the weapon to the defender, along with other circumstances established in the case, may indicate the cessation of the encroachment and, as a consequence, the completion of the state of necessary defense. Also, the courts must take into account that this condition can occur in situations where, firstly, the defense followed directly after the act of an attack, albeit completed, but, based on the circumstances, the moment of its end was not clear to the defender, and the person is mistaken believed that the encroachment was continuing. Secondly, the encroachment did not stop, but, obviously for the defender, was only suspended by the encroachment in order to create the most favorable environment for its continuation or for other reasons.

Difficulties arise for the courts in connection with the legal assessment of the behavior of the participants in the conflict, which ended in death or the infliction of serious harm to health, taking into account the sequence, nature and danger of their actions, as well as the actual presence of an encroachment from which the person whose actions entailed these consequences had the right to defend himself (Clause 1.5 of the review).

Intentional infliction of serious harm to health or death by the defender

The second section is devoted to the qualification of murder and intentional infliction of grievous bodily harm when exceeding the limits of necessary defense

As noted in paragraph 2.1, when qualifying the intentional infliction of death or serious harm to the health of the offender, the courts do not always consider the commission of these actions in a state of necessary defense and do not take into account that the disproportionality of measures to protect the danger of an attack is characteristic of exceeding the limits of defense, since harm to another person occurs when repelling his socially dangerous attack, when the defender deliberately commits actions that are clearly inconsistent with the nature and danger of the latter. According to Part 2 of Art. 37 of the Criminal Code, such an excess is possible only if the encroachment is not associated with the use of life-threatening violence or the threat of its use.

In some cases, the courts do not take into account the explanations contained in paragraph 14 of Resolution No. 19, that the person defending himself, due to the excitement caused by the attack, cannot always correctly assess the nature and danger of the latter and choose a proportionate method and means of defense. At the same time, the actions of the defender cannot be considered as committed in excess of the limits of defense if the harm caused, although it turned out to be greater than what was prevented, but in causing the harm there was no obvious discrepancy between the protective measures and the nature and danger of the attack.

Causing harm when detaining a person who has committed a crime

Section 3 of the review is devoted to the application of the rules of the Criminal Code on causing harm when detaining a person who has committed a crime.

Thus, the Supreme Court indicated that the provisions of Art. 38 of the Criminal Code, regulating the lawful infliction of harm during the detention of a person who has committed a crime, as well as Part 2 of Art. 108 and part 2 of Art. 114 of the Criminal Code on liability for exceeding permissible measures is rarely used in judicial practice. Nevertheless, the courts have difficulty determining the existence of this circumstance and the fact that the measures necessary for detention were exceeded. In particular, the courts in some cases do not establish or investigate the fact that law enforcement officers or other persons acted in a state of detention of a person who committed a crime, and the harm caused to him was determined by the circumstances of the detention.

“The presence of these examples indicates that assessing the circumstances related to self-defense is a very complex process that causes great difficulties for the courts, which, coupled with the scanty percentage of acquittals, practically guarantees a guilty verdict,” noted partner of the G3 consulting group, lawyer Alexander Tatarinov.

Conditions of emergency

As indicated in the final section on the application of the provisions of the Criminal Code on causing harm in conditions of extreme necessity, courts also encounter difficulties in assessing such situations. In particular, when determining the presence of a real danger that directly threatens the interests of an individual, society or state, and the impossibility of eliminating it in ways not related to causing harm to third parties. At the same time, the question that a person caused harm in a state of extreme necessity arose primarily in criminal cases of crimes in the field of economic activity, including those committed by the heads of commercial organizations and entrepreneurs.

At the same time, the Supreme Court emphasized that situations related to causing harm in a state of extreme necessity can arise in other areas, including within the framework of public relations that ensure the constitutional rights and freedoms of man and citizen. When assessing these situations, courts need to pay attention to such mandatory conditions indicating the legality of the actions taken by a person, such as the presence and actual nature of the danger, as well as the impossibility of eliminating it without violating the rights and freedoms of another person and the absence of a clear excess of permissible limits, including including in the form of causing harm equal to or greater than that which could have been caused during the further development of the danger that has arisen.

Lawyers paid special attention to the last section of the review

“In the first of the examples given, the person was found guilty of committing a crime under Art. 199 of the Criminal Code (evasion of taxes and fees), in the second - under clause “b”, part 2 of art. 177 of the Criminal Code (carrying out business activities without a license). In both cases, the sentences were overturned, and the criminal cases were terminated for lack of corpus delicti on the grounds that the court did not take into account the provisions of paragraph 1 of Art. 39 of the Criminal Code,” noted Alexander Tatarinov.

The expert added that the Supreme Court once again emphasized the importance of correctly assessing the circumstances and applying the rules taking into account the degree of danger of the act. “This is a positive trend, since the highest court has already repeatedly drawn attention to economic articles, calling on the courts to be more attentive in relation to this category of cases,” the lawyer concluded.

“Since the main direction of my activity is the protection of entrepreneurs, examples related specifically to entrepreneurial activity are the most significant for me,” noted lawyer of the Novosibirsk City Bar Association Viktor Prokhorov. – Unfortunately, this section reflects only two cases of application by the courts of Art. 39 of the Criminal Code, and only one of them relates to entrepreneurial activity.”

However, Viktor Prokhorov added, even this single example allows us to positively evaluate the review as a whole, since this is one of the few cases of application of Art. 39 of the Criminal Code when accusing a person of committing a crime under Art. 199 of the Code.

Lawyer and head of criminal legal practice Artem Karakasiyan added that there is no resolution of the Plenum of the Supreme Court on this issue, and the courts do not have clear guidelines that have long existed for other circumstances that exclude the criminality of an act.

Of course, the right step, according to the expert, is that the highest judicial body drew attention to the difficulties of applying extreme necessity in cases of economic crimes. “Often, when a crisis occurs at an enterprise, management is forced to commit a formal violation of the requirements of the criminal law (for example, does not pay taxes, hides income or operates without a license). At the same time, courts often do not take into account that these violations are caused not by the selfish or other illegal motives of the general director, but by his desire to prevent greater harm,” he emphasized.

The lawyer added that, according to Art. 39 of the Criminal Code, in order to apply the rule of extreme necessity, the existence of a danger to legally protected interests and the impossibility of eliminating it by other means other than a violation of the Code must be proven. “Despite the sufficient clarity of this rule, in practice it can be difficult to justify its applicability, since courts often do not understand what facts need to be taken into account in economic cases,” noted Artem Karakasiyan. – In addition, the Supreme Court noted that in certain cases, the possible termination of the activity of an enterprise in itself can be considered as a sufficient source of danger giving rise to a situation of extreme necessity. Such cases include the risk of losing a large number of jobs, disrupting the heating season (for water supply organizations), and creating emergency situations (for hazardous industries).”

According to the expert, from the review it can be concluded that when establishing the impossibility of eliminating a danger by legal means, the courts must examine the actions of the enterprise management committed during the period of violation of the law. “Dialogue with the authorities (advance notification of the crisis at the enterprise and the impending occurrence of debt on tax payments), contacting the tax authorities with a request for debt restructuring, spending funds received in the organization’s account exclusively for current activities speak in favor of extreme necessity ( payment of wages, purchase of raw materials), etc.,” he explained.

Artem Karakasyan added that in the future a more detailed development of the institution of circumstances excluding the criminality of an act is required in relation to economic crimes. “This is necessary, because in an unstable economy, the lack of well-developed approaches to the application of the rules on extreme necessity and justified risk creates the preconditions for unfair prosecution of the management of organizations,” he emphasized.

According to Viktor Prokhorov, this review of the Supreme Court has a clear bias towards analyzing the practice of applying the relevant provisions in cases of crimes against the person. “I believe that the regular preparation and publication of such reviews is certainly useful for both law enforcement officials and business representatives. Practice shows that entrepreneurs often find themselves in almost identical situations, which, apparently, is a consequence of similar economic conditions prevailing in all regions,” he believes.

The lawyer added that both last year and this year he was repeatedly contacted by businessmen who were being investigated for reports of crimes under Art. 199.2 of the Criminal Code. “All of them were managers of continuous cycle production enterprises, in which stopping production means its inevitable death,” he explained. “Their actions to direct the proceeds to the needs of the enterprise, bypassing blocked current accounts, were, of course, caused by extreme necessity and the desire to prevent the cessation of production, to preserve jobs and a source of income for workers and members of their families.”

In conclusion, the expert emphasized that such reviews should be considered at meetings in law enforcement agencies in order to prevent obviously illegal criminal prosecution in similar cases.

Article 2 of the Constitution of the Russian Federation

Man, his rights and freedoms are the highest value. Recognition, observance and protection of human and civil rights and freedoms is the responsibility of the state.

Causing harm to human life and health is a crime.

"Essential defense" and "extreme necessity"

– circumstances excluding the criminality of the act.

ST. 37 CRIMINAL CODE OF THE RUSSIAN FEDERATION

ESSENTIAL DEFENSE

TYPES OF NECESSARY DEFENSE

Necessary defense in the event of an attack involving violence dangerous to the life of the defender or another person, or with an immediate threat of such violence

Necessary defense in the event of an attack that is not associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence, is lawful if the limits of necessary defense are not exceeded

Necessary defense in the event of an unexpected attack is protection from a rapidly occurring and unforeseen attack, when it was impossible to objectively assess the degree and nature of the threatening danger. Any harm caused is legitimate.

Provision of Art. 37 of the Criminal Code of the Russian Federation apply equally to all persons, regardless of their professional or other special training and official position.

CONDITIONS FOR LEGALITY OF NECESSARY DEFENSE

Related to encroachment

The encroachment must be socially dangerous.
The encroachment must be unlawful, a criminally punishable act, qualified by the Criminal Code of the Russian Federation as a crime
The encroachment must be present.
The encroachment must have begun and not yet ended. It must have the ability to inevitably, immediately cause socially dangerous harm
The encroachment must be valid.
The encroachment must be real, not imaginary, existing in objective reality, and not just in the imagination of the defender.

Protection related

A citizen has the right to protect both his own rights and the rights of third parties, the state, and society
Protection is carried out by causing harm to the offender
Protection must not exceed the limits of necessary defense

You can protect

the identity and rights of the defender or another person, the interests of society or the state.

A citizen has the right to defend

from criminal attacks on one’s own life, health, personal freedom, honor, dignity, home, property and other interests protected by law, and similar benefits of others, even complete strangers, as well as the legitimate interests of enterprises, institutions, commercial and other organizations, public and state interests

Causing harm to the offender

Defensive actions must be aimed exclusively at the individual who poses a threat to legally protected interests. Causing harm to people not involved in the attack does not fall under the concept of necessary defense.

Exceeding the limits of necessary defense

Exceeding the limits of necessary defense (excess of defense) represents deliberate actions that clearly do not correspond to the nature and degree of public danger of the encroachment (Part 3 of Article 37 of the Criminal Code).

By excess of defense we should understand the infliction of clearly unnecessary, excessive, grievous harm not caused by the situation on the attacker.

Damage caused in the state of necessary defense is not subject to compensation, provided that the limits of necessary defense were not exceeded.

Use of weapons in conditions of necessary defense