Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 27, 2012 N 19 “On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime”

The Armed Forces determined the limit of necessary defense

The Supreme Court's Criminal Division stated that strangulation gives the victim the right to self-defense by any means. This follows from the ruling in case No. 16-UD21-14-K4, in which Elena Solovyova* tried to appeal the verdict for exceeding the necessary self-defense.

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Solovyova claimed that a drunken Pyotr Rykov* attacked her in front of her young daughter for a far-fetched reason. At that moment, the woman was cutting bread, so she had a knife in her hands. When Rykov began to choke her, Solovyova stabbed the man, fearing for her life. It pierced the attacker's chest and damaged his lung.

The Bykovsky District Court found Solovyova guilty of intentionally causing grievous harm to health with the help of a weapon (clause “h”, part 2 of Article 111 of the Criminal Code) and sentenced her to two years in prison, deferred until her daughter reaches the age of 14 years. The Volgograd Regional Court changed the classification to causing grievous harm to health in excess of necessary self-defense (Part 1 of Article 114 of the Criminal Code). The appeal sentenced Solovyova to six months of correctional labor with a deduction of 5% of her salary, conditionally with a probationary period of another six months. This verdict was confirmed by the cassation court.

In a complaint sent to the Supreme Court, the woman’s lawyer emphasized that at the time of the attack, Solovyova feared for her life. The court found that Rykov actually strangled her. At the same time, the defendant did not have the opportunity to stop the man without causing him harm. The defense lawyer asked to acquit Solovyova and recognize her right to rehabilitation.

The Supreme Court noted that Solovyova’s testimony is consistent with the bodily injuries witnessed after the incident and the confessions of Rykov himself. The appeal took this into account, but still decided that the defendant exceeded the limits of necessary self-defense. According to the Volgograd Regional Court, Rykov’s actions did not threaten the woman’s life, since he was not armed. This interpretation contradicts the meaning of Art. 37 of the Criminal Code, which defines “necessary self-defense,” the Supreme Court indicated.

Human rights activists spoke about stereotypes of judges in cases of domestic violence

Strangulation refers to actions that create a real danger to life, as explained in the resolution of the Plenum of the Supreme Court “On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime.” In such cases, the defender has the right to cause harm of any nature and extent to the person who is encroaching on his or someone else’s life.

Since Solovyova struck Rykov when he squeezed her throat, and she began to choke and realized that she could not escape, there is no corpus delicti in her actions, the Supreme Court pointed out.

The Judicial Collegium of the Supreme Court for Criminal Cases overturned the sentences of lower authorities, terminated criminal proceedings against Solovyova due to the lack of corpus delicti and recognized her right to rehabilitation.

*Names have been changed by the editors.

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necessary defense - clarifications of the plenum of the supreme court

Necessary defense has once again become the subject of consideration by the Supreme Court. Explanations on the procedure for the courts to apply the legislation on necessary defense were given by the Supreme Court in Resolution of the Plenum No. 19 of September 27, 2012 “on the application of the legislation on necessary defense and causing harm when detaining a person who has committed a crime.”

In the above-mentioned guiding clarification of the Main Court, a number of important debatable points can be identified.

With the necessary defense against an unrelated attack. Speaking about the necessary defense against a socially dangerous attack that is not related to life-threatening violence, the Supreme Court of the Russian Federation distinguishes two types of such attacks:

1. protection from an act involving violence that is not dangerous to the life of the defender or another person (beatings, causing minor harm to health, causing moderate harm, robbery associated with such violence).

2. commission of other acts (actions or inaction), including negligence, provided for by the Special Part of the Criminal Code of the Russian Federation, which, although not associated with violence, however, taking into account their content, can be prevented or suppressed by causing harm to the offender (for example, intentional or careless destruction or damage to someone else's property, rendering life support facilities, vehicles or means of communication unusable (paragraph 2, paragraph 3).

Having identified these two types of encroachment, the Supreme Court answered the question: is it possible to exercise the right to the necessary defense not from attack, but from other criminal acts. An analysis of the said resolution suggests that the necessary defense to protect the right of ownership of property, for example, to prevent theft or robbery, that is, in the presence of an encroachment not related to violence, is permitted.

Revealing the subjective side of an act committed when exceeding the limits of necessary defense, the Armed Forces indicate that criminal liability for causing harm to the health of an attacker by a person defending himself occurs in the case when the defender defended himself, thus, in a manner and with means the use of which was clearly not necessary and in connection with this, there was no need to cause grievous harm to the health of the attacker, and at the same time, the defender realized that there was no need to cause such harm.

The actions of the defender cannot be qualified as murder if the limits of necessary defense are exceeded, only on the basis of an objective fact when the deprivation of the life of the victim was not caused by necessity. For such qualification, the presence of a subjective factor is also necessary, that is, the defender’s awareness of the absence of an objective need for such defense.

The criminal law does not require the defender to choose the method least harmful to the health of the attacker from all possible and sufficient means of defense against a socially dangerous attack. The main thing is that the defense used corresponds to the nature and danger of the attack, and this is what the defender must be aware of.

The resolution resolves the dispute between law enforcement officials regarding the possibility of using automatically activated protective equipment for necessary defense.

Previously, it was believed that the use of such devices cannot be considered necessary defense, since at the moment when these devices are installed there is no threat of encroachment.

The Supreme Court rightly disagreed with this approach. Otherwise, citizens would be deprived of the right to protect their property during their absence. Moreover, the very fact of installing various devices does not pose a public danger and does not cause harm to anyone. In this case, the expectation is that the device will work exactly at the moment when the attack is carried out. In this way, all conditions for the necessary defense will be met.

However, such a defense can be recognized as legitimate, as is quite rightly stated in paragraph 17 of the Resolution, only if harm is caused to the attacker, and not to other persons (for example, those passing by or accidentally entering the house, etc.). In addition, when protecting interests protected by criminal law, the conditions of proportionality of the harm caused must be met.

During the discussion of the draft Resolution, discussions took place regarding whether the necessary defense against an attack committed in the form of inaction or negligence is possible.

The resolution states that protection is possible from any attack, and it does not matter in what form it was committed - action or inaction, intentionally or through negligence. We are talking, for example, about a situation where a doctor does not take measures to resuscitate a patient. In this regard, the patient's relatives use violence against the doctor in order to force him to provide emergency assistance.

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PLENATURE OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

DECISION of October 13, 2022 N 23

ABOUT THE PRACTICE OF COURT CONSIDERATION OF CIVIL ACTION IN CRIMINAL CASE

The constitutional guarantees of the rights of a crime victim to access justice and to compensation for damage caused to him (Article 52 of the Constitution of the Russian Federation) are implemented, in particular, through the application of the procedure provided for by the criminal procedural law for consideration by the court of a civil claim in a criminal case, established as a legal mechanism for effective judicial protection of the rights of the victim.

In order to ensure the unity of judicial practice in considering and resolving a civil claim in a criminal case, as well as in connection with issues arising from the courts, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation, Articles 2 and 5 of the Federal Constitutional Law of February 5, 2014 Year N 3-FKZ “On the Supreme Court of the Russian Federation”, decides to give the following clarifications to the courts:

1. Draw the attention of the courts to the fact that, based on the provisions of Part 1 of Article 44 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation), both an individual and a legal entity have the right to file a civil claim in a criminal case containing a claim for compensation for property damage, if there are grounds to believe that this harm was caused to him directly by the crime, and the individual also requests compensation for the moral damage caused to him by the crime.

2. In a criminal case of a crime in which damage was caused to property assigned to a state or municipal unitary enterprise, state or municipal institution for possession, use and disposal (clause 4 of Article 214 and clause 3 of Article 215 of the Civil Code of the Russian Federation, hereinafter also referred to as the Civil Code RF), such an enterprise or institution has the right to independently file a civil claim in the case, and in this case it is recognized as a civil plaintiff.

By virtue of Part 3 of Article 44 of the Code of Criminal Procedure of the Russian Federation, a prosecutor has the right to file a claim in defense of the interests of state and municipal unitary enterprises, as well as the interests of the Russian Federation, constituent entities of the Russian Federation, municipalities, whose recognition as a civil plaintiff is not required.

3. If the victims in a criminal case are a minor, or a person recognized in the manner prescribed by law as incompetent or partially capable, or persons who for other reasons cannot defend their rights and legitimate interests themselves, a civil claim may be brought in defense of the interests of these persons both by their legal representatives, who are involved in mandatory participation in a criminal case, and by the prosecutor (part 3 of article 44, part 2 of article 45 of the Code of Criminal Procedure of the Russian Federation). In such cases, for claims filed in the interests of a minor, recovery is made in favor of the minor himself.

4. According to Part 1 of Article 45 of the Code of Criminal Procedure of the Russian Federation, lawyers are allowed as representatives of a legal entity recognized as a civil plaintiff in a criminal case, as well as other persons authorized in accordance with the Civil Code of the Russian Federation to represent its interests (for example, a person who by force of law , other legal act or constituent document of a legal entity is authorized to act on its behalf).

When the interests of a legal entity are represented at a court hearing by the head of an organization or another authorized person, his powers must be confirmed by relevant documents certifying his status and the fact of conferring such powers (Part 3 of Article 53 of the Civil Procedure Code of the Russian Federation, hereinafter also referred to as the Code of Civil Procedure of the Russian Federation).

5. Taking into account the requirements of Part 1 of Article 54 of the Code of Criminal Procedure of the Russian Federation, in cases of filing a civil claim in a criminal case, an individual or legal entity that, in accordance with the Civil Code of the Russian Federation, is responsible for damage caused by a crime, must be brought as a civil defendant, o than the corresponding resolution (definition) is made.

Within the meaning of the provisions of paragraph 1 of Article 1064 of the Civil Code of the Russian Federation, harm caused by a crime is subject to compensation in full by the person guilty of committing it, therefore, as a general rule, the accused is brought in as a civil defendant. At the same time, in cases where the law imposes the obligation to compensate for harm on a person who is not the cause of harm, such a person, including a legal entity, is involved as a civil defendant.

In particular, when considering criminal cases of crimes related to the infliction of harm by an employee of an organization (legal entity) in the performance of labor (official, official) duties (for example, crimes provided for in Part 2 of Article 109, Articles 143, 238 of the Criminal Code of the Russian Federation, hereinafter - the Criminal Code of the Russian Federation), a legal entity is involved in participation in the case as a civil defendant (Article 1068 of the Civil Code of the Russian Federation); if, during the commission of a crime, harm was caused by a source of increased danger (for example, in cases of crimes provided for in Articles 263, 264 of the Criminal Code of the Russian Federation), - the owner of this source of increased danger (Article 1079 of the Civil Code of the Russian Federation).

Since damage caused as a result of illegal actions (inaction) of officials of state bodies, local self-government bodies is compensated at the expense of the treasury of the Russian Federation, the treasury of a constituent entity of the Russian Federation or the treasury of a municipal entity (Articles 1069, 1070, 1071 of the Civil Code of the Russian Federation), then according to criminal cases (for example, crimes under Articles 285, 286 of the Criminal Code of the Russian Federation), representatives of the financial authority acting on behalf of the treasury, or the main managers of budget funds by departmental affiliation (Article 1071 of the Civil Code of the Russian Federation) are involved in the proceedings.

6. In cases where harm was caused by a crime committed by a minor who does not have income or other property sufficient to compensate for the harm, taking into account the provisions of Article 1074 of the Civil Code of the Russian Federation and Article 155.1 of the Family Code of the Russian Federation, his parents (adoptive parents) or trustees or an organization for children - orphans and children left without parental care, in which the minor was under supervision, are involved as a civil defendant along with the accused.

7. When considering criminal cases, courts must bear in mind the provisions of Part 3 of Article 1080 of the Civil Code of the Russian Federation, which states that a person who unlawfully took possession of someone else’s property, which was subsequently damaged or lost as a result of the actions of another person who acted independently of the first person, is liable for the damage caused. harm. For example, in cases of crimes under Article 166 of the Criminal Code of the Russian Federation, property damage resulting from the subsequent theft, destruction or damage by an unidentified person of a stolen car is subject to recovery from the accused in the event of a civil claim being brought against him for compensation for such damage.

8. Courts should take into account that the property damage subject to compensation, in addition to that specified in the charge, also includes damage resulting from the destruction or damage by the accused of someone else’s property, when these actions were part of the method of committing the crime (for example, damage to alarm or video surveillance devices, breaking a lock, damage to a door or window when entering a premises, damage to a car for the purpose of stealing it) and did not require independent qualification under Article 167 or Article 168 of the Criminal Code of the Russian Federation.

9. If a crime causes harm to a person whose property is insured, then, taking into account the provisions of Article 1072 of the Civil Code of the Russian Federation, if the court has information about the receipt of insurance compensation by the victim, the civil plaintiff, the amount in the part not covered by insurance payments is subject to recovery. In such cases, as a rule, it is not necessary to involve a representative of the insurer in the proceedings.

10. In cases of crimes, the consequence of which was the death of a person, the person who actually incurred funeral expenses, by virtue of Article 1094 of the Civil Code of the Russian Federation, has the right to file a civil claim for their compensation. In this case, the funeral benefit, if paid, does not affect the amount of expenses to be reimbursed.

11. Based on part 3 of Article 42 of the Code of Criminal Procedure of the Russian Federation, the costs incurred by the victim in connection with his participation during the preliminary investigation and in court, including the costs of a representative, do not relate to the subject of the civil claim, and issues related to their compensation are resolved in accordance with with the provisions of Article 131 of the Code of Criminal Procedure of the Russian Federation on procedural costs.

12. Within the meaning of Part 1 of Article 44 of the Code of Criminal Procedure of the Russian Federation, requirements of a property nature, although related to the crime, are related, in particular, to the subsequent restoration of the violated rights of the victim (for example, the collection of interest for the use of someone else’s money, the recognition of a civil contract invalid, for compensation for damage in the event of the death of the breadwinner), as well as recourse claims (for reimbursement of expenses to insurance organizations, etc.) are subject to resolution through civil proceedings. In this part, the court leaves a civil claim in a criminal case without consideration, indicating in the resolution (definition) or conviction the reasons for the decision.

13. Draw the attention of the courts to the fact that, within the meaning of the provisions of paragraph 1 of Article 151 of the Civil Code of the Russian Federation, a civil claim for compensation for moral damage (physical or moral suffering) can be brought in a criminal case when such harm was caused to the victim by criminal actions that violate his personal non-property rights (for example, the rights to inviolability of home, privacy, personal and family secrets, copyright and related rights) or encroaching on intangible benefits belonging to him (life, health, personal dignity, etc.).

Based on the provisions of Part 1 of Article 44 of the Code of Criminal Procedure of the Russian Federation and Articles 151, 1099 of the Civil Code of the Russian Federation in their interrelation, a civil claim for compensation for moral damage is subject to consideration by the court in cases where, as a result of a crime encroaching on someone else’s property or other material benefits, damage is also caused to personal non-property rights or intangible benefits belonging to the victim (for example, in case of robbery, theft with illegal entry into a home, fraud committed using a person’s personal data without his consent).

Compensation for moral damage is carried out in monetary form, regardless of the property damage subject to compensation.

14. If several close relatives and (or) close persons of the deceased are recognized as victims in a criminal case of a crime, the consequence of which was the death of a person, and in their absence or the impossibility of participating in criminal proceedings - several of his relatives, then each of them has the right to present a civil a claim containing an independent claim for compensation for moral damage. The court must take into account circumstances indicating that these particular persons have suffered physical or moral suffering.

15. Courts should keep in mind that if there is no civil claim in a criminal case, the court, during the preliminary hearing or in the preparatory part of the court session, explains to the victim the right to file a claim, regardless of whether such a right was explained to him by the preliminary investigation authorities.

In cases where the claim (statement) of the plaintiff for compensation (compensation) for his harm, attached to the materials of the criminal case, does not allow determining the essence of the claims presented, their factual grounds, volume and size, which prevents the consideration of the claim, the court should be invited to court hearing to the civil plaintiff to eliminate the existing shortcomings without returning such a statement to him.

16. Based on the fact that a civil claim can be brought in the period after the initiation of a criminal case and before the end of the judicial investigation during the trial of this criminal case in the court of first instance (Part 2 of Article 44 of the Code of Criminal Procedure of the Russian Federation), in the event of a guilty verdict in court proceedings with the participation of jurors, a civil claim may be brought until the end of the investigation of the circumstances referred to, according to Part 3 of Article 347 of the Code of Criminal Procedure of the Russian Federation, for the discussion of the consequences of the verdict.

17. Subject to the presentation of a civil claim at a preliminary hearing or court session, and also if the preliminary investigation bodies, if there is a civil claim in the case, have not made the necessary procedural decisions, the court issues decisions (rulings) on recognition as a civil plaintiff and on bringing defendant of the relevant persons. The court has the right to make such decisions (rulings) in the manner established by part 2 of Article 256 of the Code of Criminal Procedure of the Russian Federation, which does not require the mandatory removal of the court to the deliberation room and the presentation of the decision in the form of a separate procedural document. In these cases, the decision made in the courtroom is recorded in the minutes of the court session.

18. According to the provisions of Article 268 of the Code of Criminal Procedure of the Russian Federation, the court explains to the civil plaintiff and his representative, the civil defendant and his representative, if they participate in the court hearing, their rights, duties and responsibilities in the trial, provided for respectively in Articles 44, , and 55 of the Code of Criminal Procedure of the Russian Federation.

When a civil plaintiff is recognized as a victim, in addition to the rights provided for in Part 2 of Article 42 of the Code of Criminal Procedure of the Russian Federation, the court explains other rights with which, in accordance with Part 4 of Article 44 of the Code of Criminal Procedure of the Russian Federation, he is endowed as a civil plaintiff: the right to support a civil claim, to give explanations and testimony on it , abandon the civil claim brought against them until the court retires to the deliberation room to pronounce the verdict.

If the accused is recognized as a civil defendant, then he is also explained the rights that he is entitled to as a civil defendant: the right to know the essence of the claims and the circumstances on which they are based, to object to the civil claim brought, to give explanations and testimony on the merits of the claim (paragraphs 1 - 3 parts 2 of article 54 of the Code of Criminal Procedure of the Russian Federation).

19. The court, both at the preliminary hearing and in the trial, if there are grounds for doing so, takes measures to secure a civil claim, if they were not taken by the preliminary investigation bodies. By virtue of Part 2 of Article 230 of the Code of Criminal Procedure of the Russian Federation, such measures can be taken by the court at the request of the victim, civil plaintiff, their legal representatives or representatives, or the prosecutor.

20. In order to resolve the civil claim brought in the case, the court, during the judicial investigation, finds out from the civil plaintiff and (or) his representative, the state prosecutor, if the civil claim was brought by the prosecutor, whether they support the claim, and proposes to announce the demands contained in it, after which finds out whether the defendant, civil defendant and (or) his representative recognize the civil claim.

Participants in legal proceedings whose interests are affected by a civil claim are given the opportunity to express their position on it and, if necessary, submit additional materials related to the claim. The court also hears the opinion of the state prosecutor on the claim of the civil plaintiff.

21. Courts should proceed from the fact that, taking into account the provisions of paragraph 4 of part 1 of Article 73 of the Code of Criminal Procedure of the Russian Federation, the burden of proving the nature and amount of property damage caused by the crime lies with the public prosecutor.

Property damage caused directly by the crime, but beyond the scope of the charge brought against the defendant (the victim’s expenses for treatment due to damage to health; funeral expenses when the consequence of the crime was the death of a person; expenses for repairing damaged property when breaking into a home, etc.), subject to proof by the civil plaintiff by submitting the relevant documents to the court (payment receipts, cash and sales receipts, etc.).

The civil plaintiff substantiates before the court his demands for the amount of compensation for moral damage caused by the crime.

22. If a civil plaintiff refuses a claim that may be filed by him at any time during the criminal proceedings, but before the court retires to the deliberation room to render a verdict, the court, in accordance with paragraph 11 of part 4 of Article 44 of the Code of Criminal Procedure of the Russian Federation, explains to him that such refusal entails the termination of proceedings on the claim.

If the civil plaintiff confirms the abandonment of the claim before the start of the debate between the parties, the court has the right to make a decision to terminate the proceedings on the civil claim in the courtroom and enter it into the protocol (Part 2 of Article 256 of the Code of Criminal Procedure of the Russian Federation). If the refusal of a civil claim is stated in the debate between the parties, then such a decision is indicated in the operative part of the final court decision in the case.

23. Courts must keep in mind that conducting a trial in a special manner (Chapters 40 and 40.1 of the Code of Criminal Procedure of the Russian Federation) does not relieve the court of the obligation to investigate issues relating to the civil claim and make a decision on it. In particular, when rendering a verdict of guilty, the court has the right to satisfy a civil claim if its requirements arise from the accusation with which the accused agreed, and there are no obstacles to the court’s resolution of it on the merits.

24. For each civil claim brought in a criminal case, when rendering a guilty verdict, the court is obliged, in accordance with paragraph 10 of part 1 of Article 299 of the Code of Criminal Procedure of the Russian Federation, to discuss whether the civil claim is subject to satisfaction, in whose favor and in what amount.

When resolving such issues, the court, in the descriptive and motivational part of the guilty verdict, provides reasons justifying the full or partial satisfaction of the claim or refusal thereof, indicates the amount and, if necessary, the calculation of the amount of claims to be satisfied, as well as the law on the basis of which the decision was made in the civil case. lawsuit

In this case, one should proceed from the fact that the nature of the harm caused by the crime and the amount of claims to be satisfied are established by the court on the basis of the totality of evidence examined at the court hearing and cited in the verdict, including in the case of recognition of the claim by the civil defendant.

25. When determining in a verdict the procedure for recovery, the courts should keep in mind that property damage caused by the joint actions of several defendants is recovered from them jointly, but at the request of the victim and in his interests, the court has the right to determine the shared procedure for its recovery (Article 1080 of the Civil Code of the Russian Federation) .

If a civil claim brought against several defendants is satisfied, the operative part of the verdict must indicate what amount is to be collected jointly and severally, and what amount from each of them is to be collected jointly, in favor of which of the civil plaintiffs the recovery is being carried out.

If property damage was caused by the defendant together with another person in respect of whom the case was separated into separate proceedings, or this person was exempted from criminal liability on non-rehabilitative grounds, then the court imposes the obligation to compensate it in full on the defendant. When a subsequent conviction is made against a person whose case has been separated into separate proceedings, the court has the right to impose on him the obligation to compensate for damage jointly with the previously convicted person against whom the civil claim was satisfied.

26. When resolving a claim in a criminal case for compensation to a victim for moral damage caused to him by a crime, the court is guided by the provisions of Articles 151, 1099, 1100, 1101 of the Civil Code of the Russian Federation, according to which, when determining the amount of compensation for moral damage, it is necessary to take into account the nature of the physical and (or) damage caused to the victim. moral suffering associated with his individual characteristics, the degree of guilt of the defendant, his financial situation and other specific circumstances of the case that influence the court's decision on the claim. In all cases, when determining the amount of compensation for moral damage, the requirements of reasonableness and fairness must be taken into account.

If the court establishes facts of unlawful or immoral behavior of the victim, which was the reason for the crime, then these circumstances are taken into account when determining the amount of compensation for moral damage.

27. During the trial, the court must take exhaustive measures to resolve the civil claim existing in the case on the merits, so that the rights of the victim violated by the crime are promptly restored; civil proceedings.

It should be borne in mind that the need to make additional calculations if they are related, among other things, to clarifying the amount of property damage, which is important for qualifying the offense and determining the volume, is not the basis for transferring the issue of the amount of compensation of a civil claim for consideration in civil proceedings. charges, even when such calculations require a postponement of trial.

If, in accordance with Part 2 of Article 309 of the Code of Criminal Procedure of the Russian Federation, the court recognized the civil plaintiff’s right to satisfy a civil claim and referred the issue of the amount of compensation for consideration in civil proceedings, such a decision must always be motivated in the verdict.

28. When applying for the execution of a sentence that has entered into legal force, containing a decision recognizing the civil plaintiff’s right to satisfy a civil claim with the transfer of the issue of the amount of compensation for consideration in civil proceedings, the court that passed the sentence sends for such consideration to the court to which this civil claim is subject to jurisdiction in accordance with the rules provided for by the Civil Procedure Code of the Russian Federation (in cases established by law - taking into account the will of the civil plaintiff), a copy of the conviction, a decision of the appellate court, a copy of the statement of claim (statement) and decisions on recognition as a civil plaintiff, civil defendant or an extract from the minutes of the court session, copies of other case materials confirming the claims, as well as necessary to resolve the issue of their amount. In any case, the civil plaintiff must be notified of which court the specified materials were sent to.

29. If, in a criminal case, the property of the accused or persons who are financially responsible for his actions in order to ensure the execution of the sentence in part of the civil claim was seized, then if the civil claim is satisfied, the court in the verdict indicates the property commensurate with the satisfied requirements, the arrest which remains in effect until the execution of the sentence in part of the civil claim.

30. Draw the attention of the courts to the fact that when issuing an acquittal or issuing a resolution (ruling) to terminate a criminal case on the grounds provided for in paragraph 1 of part 1 of Article 24 of the Code of Criminal Procedure of the Russian Federation (absence of a crime) and paragraph 1 of part 1 of Article 27 of the Code of Criminal Procedure of the Russian Federation ( non-involvement of the defendant in the commission of a crime), the court refuses to satisfy the civil claim (Part 2 of Article 306 of the Code of Criminal Procedure of the Russian Federation).

If there are other grounds for an acquittal (for example, there is no corpus delicti in the defendant’s act) or other grounds for termination of the criminal case, including non-rehabilitating ones, the court leaves the civil claim without consideration, indicating in the decision that the plaintiff retains the right to file a claim in civil proceedings.

31. The appellate court, based on the provisions of part 1 of article 389.22, article 389.24 and paragraph 3 of part 1 of article 389.26 of the Code of Criminal Procedure of the Russian Federation in their interrelation, has the right to change the verdict in relation to the civil claim and increase the amount of compensation for material damage, provided that it does not matter for the qualification of the actions of the convicted person and the scope of the charge established by the court, and (or) to increase the amount of compensation for moral damage not otherwise than on the proposal of the prosecutor or the complaint of the victim, private prosecutor, civil plaintiff, their legal representatives and (or) representatives and within the amount of the civil claim, presented in compliance with the requirements of Part 2 of Article 44 of the Code of Criminal Procedure of the Russian Federation.

If the appellate court finds that the verdict in a civil claim satisfied against several convicts incorrectly defines the procedure for recovery (joint and several or shared), then the court has the right to change the sentence in this part, establishing the proper procedure for such recovery.

Advertisement The court that rendered the verdict allocates the necessary materials on the civil claim for consideration on its merits, if the claim is within the jurisdiction of this court, or transfers these materials to the court that has jurisdiction over the civil claim in accordance with the rules provided for by the Civil Procedure Code of the Russian Federation.

33. When a sentence is overturned by an appellate court with the transfer of a criminal case to a new trial in relation to a person associated with another convicted person(s) with joint liability, compensation for the entire amount of property damage is assigned to the convicted person(s) in respect of whom the sentence was upheld without change.

If, upon a new consideration of the case, a guilty verdict is passed, then the convicted person may be obligated to compensate for property damage in solidarity with the person or persons previously convicted of this crime, in respect of which (whom) the civil claim was satisfied.

34. Recommend that the courts of appeal and cassation respond to each case of violation or restriction of the rights of the victim and civil plaintiff committed during the inquiry, preliminary investigation or during the consideration of a criminal case by a lower court, if necessary, if there are grounds provided for in Part 4 of Article 29 of the Code of Criminal Procedure of the Russian Federation , including when establishing the fact of an unreasonable transfer of the issue of the amount of compensation for consideration in civil proceedings, issue private determinations (resolutions).

35. In connection with the adoption of this resolution, the following shall be declared no longer valid on the territory of the Russian Federation:

Resolution of the Plenum of the Supreme Court of the USSR of March 23, 1979 No. 1 “On the practice of application by courts of legislation on compensation for material damage caused by a crime” as amended by Resolution of the Plenum of the Supreme Court of the USSR of April 26, 1984 No. 7;

Resolution of the Plenum of the Supreme Court of the USSR of December 13, 1974 No. 9 “On the practice of application by courts of the Decree of the Presidium of the Supreme Soviet of the USSR of June 25, 1973 “On the reimbursement of funds spent on the treatment of citizens who have suffered from criminal acts.”

Chairman of the Supreme Court of the Russian Federation V.M. LEBEDEV

Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation V.V. MOMOTOV

The Supreme Court clarified the provisions of the Criminal Code on necessary defense

The courts were told what to consider when deciding whether the limits of necessary defense were exceeded. The Armed Forces of the Russian Federation ordered to distinguish between murder and intentional infliction of grievous bodily harm when exceeding the limits of necessary defense against murder and infliction of grievous bodily harm in a state of sudden strong emotional disturbance. The resolution makes a number of other recommendations.

Content

The Supreme Court of the Russian Federation clarified the provisions of the Criminal Code on the limits of necessary defense. This issue is addressed by Resolution of the Plenum of the Armed Forces of the Russian Federation No. 19 of September 27, 2012. It concerns the application of legislation on necessary defense and causing harm when detaining a person who has committed a crime. The plenum touched upon issues related to the provisions of articles and the Criminal Code of the Russian Federation. The courts have been told what factors need to be taken into account when deciding whether the limits of necessary defense have been exceeded. The Plenum noted that damage caused in a state of necessary defense is not subject to compensation unless its limits have been exceeded. This is provided for in Article 1066 of the Civil Code of the Russian Federation. The resolution highlights another important nuance. A person who provoked an attack in order to use it as a pretext for committing illegal actions is not recognized as being in a state of necessary defense. The Supreme Court urged not to confuse certain concepts: murder and intentional infliction of grievous bodily harm when exceeding the limits of necessary defense (part 1 of article 108 and part 1 of article 114 of the Criminal Code of the Russian Federation), and, accordingly, murder and infliction of grievous bodily harm in a state of sudden strong mental unrest (Article 107 and Article 113 of the Criminal Code of the Russian Federation). The courts were advised to take into account the emotional state of the defenders. They were ordered to pay special attention, for example, to the situation with the robbers visiting the house at night. The document provides, in particular, the following explanations and recommendations: 1. Draw the attention of the courts to the fact that the provisions of Article 37 of the Criminal Code of the Russian Federation apply equally to all persons within the scope of the Criminal Code of the Russian Federation, regardless of professional or other special training and official position... 2. In part 1 of Article 37 of the Criminal Code of the Russian Federation, a socially dangerous attack involving violence dangerous to the life of the defender or another person is an act that, at the time of its commission, created a real danger to the life of the defender or another person. The presence of such an encroachment 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.).

An immediate threat of violence that is dangerous to the life of the defender or another person may be expressed, in particular, in statements about the intention to immediately cause death or life-threatening harm to the defender or another person.

, demonstration to the attacker of weapons or objects used as weapons, explosive devices, if, taking into account the specific situation, there were grounds to fear that this threat would be carried out.
3. An assault, protection from which is permissible within the limits established by Part 2 of Article 37 of the Criminal Code of the Russian Federation, 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 health, robbery committed with the use of violence not dangerous to life or health). When determining whether the actions of the attacker were unexpected for the person defending himself, as a result of which the defender could not objectively assess the degree and nature of the danger of the attack (Part 21 of Article 37 of the Criminal Code of the Russian Federation), the court should take into account the time, place, situation and method of the attack that preceded the attack events, as well as the emotional state of the person defending himself (state of fear, fright, confusion at the time of the attack, etc.). Depending on the specific circumstances of the case, an attack committed, for example, at night with penetration into a home
, when the defending person, in a state of fright, was unable to objectively assess the degree and nature of the danger of such an attack, may be considered unexpected.
...Lawful actions of officials in the performance of their official duties, even if they are associated with causing harm or the threat of causing it, do not constitute a state of necessary defense (the use of force in cases established by law by law enforcement officers when ensuring public safety and public order, etc. ).
Explain to the courts that the state of necessary defense may also occur in cases where:

• the defense followed directly after the act of assault, although it was completed, but based on the circumstances, the moment of its end was not clear to the defending person and the person mistakenly believed that the assault was continuing;
• the socially dangerous encroachment did not stop, but, obviously for the person defending himself, was only suspended by the encroaching person in order to create the most favorable environment for the continuation of the encroachment or for other reasons.

When defending against a socially dangerous attack involving violence dangerous to the life of the defender or another person, or with an immediate threat of such violence (Part 1 of Article 37 of the Criminal Code of the Russian Federation), as well as in cases provided for in Part 21 of Article 37 of the Criminal Code of the Russian Federation, the defending person has the right to cause harm of any nature and extent to the encroaching person... 11. Explain to the courts that criminal liability for causing harm occurs for the defender only if the limits of necessary defense are exceeded, that is, when it is established in the case that the defender resorted to protection from the encroachment indicated in Part 2 of Article 37 of the Criminal Code of the Russian Federation, in such ways and means, the use of which was clearly not caused by the nature and danger of the attack, and unnecessarily intentionally caused serious harm to health or death to the offender. 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. Courts should keep in mind that the person defending himself, due to the emotional disturbance caused by the attack, cannot always correctly assess the nature and danger of the attack and, as a result, choose a proportionate method and means of defense. Resolution of the Plenum of the USSR Supreme Council of August 16, 1984 No. 14 was declared invalid. According to Business Petersburg, initially the Court allowed protection from the obviously illegal use of force by law enforcement officers. They talked, in particular, about conflicts with the police during mass protests. This wording was subsequently removed from the document. Let us add that everyone has the right to protect their rights and freedoms by all means not prohibited by law. This is enshrined in Article 45 of the Constitution of the Russian Federation. The rule on necessary defense serves as one of the guarantees for the implementation of this right. It ensures the protection of the personality and rights of the defender, other persons, as well as the interests of society or the state from socially dangerous attacks. Let us remind you that the Supreme Court of the Russian Federation is the highest judicial body in civil, criminal, administrative and other cases under the jurisdiction of courts of general jurisdiction. This is stated in the law “On the Judicial System of the Russian Federation”.

Legal documents

“On the judicial system of the Russian Federation”

Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 27, 2012 N 19

Article 45 of the Constitution of the Russian Federation.

Article 1066 of the Civil Code of the Russian Federation. Causing harm in a state of necessary defense

Article 107 of the Criminal Code of the Russian Federation. Murder committed in the heat of passion

Article 108 of the Criminal Code of the Russian Federation. Murder committed by exceeding the limits of necessary defense or by exceeding the measures necessary to apprehend the person who committed the crime

Article 113 of the Criminal Code of the Russian Federation. Causing grievous or moderate harm to health in a state of passion

Article 114 of the Criminal Code of the Russian Federation. Causing serious or moderate harm to health by exceeding the limits of necessary defense or by exceeding the measures necessary to detain a person who has committed a crime

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

Article 38 of the Criminal Code of the Russian Federation. Causing harm when detaining a person who has committed a crime

Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 27, 2013 No. 19

21. Exemption from criminal liability in connection with active repentance, reconciliation of the parties and the expiration of the statute of limitations for criminal prosecution, as well as in cases of crimes in the field of economic activity, is carried out in the form of termination of the criminal case and (or) criminal prosecution on the basis of paragraph 3 of part 1 of the article 24, articles 25, and 28.1 of the Code of Criminal Procedure of the Russian Federation. In accordance with part of Article 27 of the Code of Criminal Procedure of the Russian Federation, a mandatory condition for making such a decision is the consent of the person who committed the crime. If a person objects to the termination of the criminal case, the criminal proceedings continue as usual.

In this regard, the courts need to explain to the person his right to object to the termination of the criminal case on the specified grounds (clause 15 of part 4 of Article 47 of the Code of Criminal Procedure of the Russian Federation) and the legal consequences of the termination of the criminal case, and also find out whether he agrees to the termination of the criminal case. The consent (disagreement) of a person should be reflected in the court decision.

22. When deciding on the possibility of terminating a criminal case and (or) criminal prosecution on the basis of Article 25 of the Code of Criminal Procedure of the Russian Federation, the court must check the voluntariness and awareness of the application for reconciliation of the victim, who is an individual, as well as the availability of the authority of the representative of the organization (institution) for reconciliation.

23. If there are several non-rehabilitative grounds, the court, in order to comply with the requirements of Part 2 of Article 27 of the Code of Criminal Procedure of the Russian Federation, explains to the person the right to object to the termination of the criminal case and (or) criminal prosecution on each of these grounds and terminates the criminal case and (or) criminal prosecution on that basis a ground to which it does not object.

24. Draw the attention of the courts to the fact that, based on the results of the preliminary hearing, the judge may issue a resolution to terminate the criminal case and (or) criminal prosecution on the grounds provided for in paragraph 3 of part 1 of Article 24, Articles 25, and 28.1 of the Code of Criminal Procedure of the Russian Federation, if the accused is against it does not object (part 2 of article 27, part 1 and article 239 of the Code of Criminal Procedure of the Russian Federation).

25. If during the trial a circumstance specified in paragraph 3 of part 1 of Article 24 of the Code of Criminal Procedure of the Russian Federation is established, as well as in cases provided for in Articles 25 and 28.1 of the Code of Criminal Procedure of the Russian Federation, the court terminates the criminal case and (or) criminal prosecution only subject to the consent of the defendant. In this case, it does not matter at what point in the proceedings the statute of limitations for bringing a person to criminal liability has expired.

If, as a result of the continued trial in connection with the defendant’s objection to the termination of the criminal case and (or) criminal prosecution, his guilt is established, the court pronounces a guilty verdict and releases the convicted person from punishment.

26. If, when passing a sentence, the court, having imposed a punishment, in accordance with part of Article 15 of the Criminal Code of the Russian Federation, changed the category of the crime to a less serious one, then if there are grounds provided for in Articles 75, , 76.1 and 78 of the Criminal Code of the Russian Federation, it releases the convicted person from serving assigned punishment.

27. If the court of first instance, in the presence of the grounds provided for in paragraph 3 of part 1 of Article 24, Articles 25, and 28.1 of the Code of Criminal Procedure of the Russian Federation, did not terminate the criminal case and (or) criminal prosecution, then in accordance with Article 389.21 of the Code of Criminal Procedure of the Russian Federation the court of appeal cancels the verdict or another decision of the court of first instance and terminates the criminal case and (or) criminal prosecution. In this case, the court must find out whether the convicted person objects to the termination of the criminal case and (or) criminal prosecution.

28. The release of a person from criminal liability, including in cases specifically provided for by the notes to the relevant articles of the Special Part of the Criminal Code of the Russian Federation, does not mean the absence of corpus delicti in the act, therefore the termination of the criminal case and (or) criminal prosecution in such cases does not entail entails the rehabilitation of the person who committed the crime. Chairman of the Supreme Court of the Russian Federation V. Lebedev

And about. Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation V. Momotov

Everything about criminal cases

Go to the articles of the Criminal Code in this area

Plenum of the Supreme Court of September 27, 2012 N 19

“On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime” (as amended on September 27, 2012)

TABLE OF CONTENTS

ESSENTIAL DEFENSE

1) Draw the attention of the courts to the fact that the provisions of Article 37 of the Criminal Code

apply equally to all persons within the scope of the Criminal Code, regardless of:
Url Additional information:
- Part 3 37 of the Criminal Code

the necessary defense does not depend on the special training of the person

— professional or other special training;

Url Additional information:

- Part 3 37 Criminal Code

necessary defense does not depend on official position

— official position;

- on whether a person caused harm while protecting his or her rights or the rights of other persons, the interests of society or the state protected by law;

Url Additional information:

- Part 3 37 Criminal Code

defense does not depend on the ability to escape, ask for help

- as well as regardless of the possibility of avoiding a socially dangerous attack or seeking help from other persons or authorities.

VIOLENCE (resulting in defense)

2) Part 1 37 of the Criminal Code

a socially dangerous attack involving violence dangerous to the life of the defender or another person is: an act which, at the time of its commission, created a real danger to the life of the defender or another person.

The presence of such an encroachment 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);

- 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.).

An immediate threat of violence dangerous to the life of the defender or another person may be expressed, in particular, in:

- statements about the intention to immediately cause death or dangerous

for life;

- demonstration to the attacker of weapons or objects used as weapons, explosive devices, if, taking into account the specific situation, there were grounds to fear that this threat would be carried out.

3) Under assault, protection from which is permissible within the limits established by Part 2 37 of the Criminal Code

, one should understand 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
harm or
moderate
harm to health, robbery committed with the use of violence that is not dangerous to life or health).

In addition, such an infringement is the commission of other acts (actions or inactions), including through negligence

, provided for
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 attacks include, for example, intentional
or
careless
destruction or damage to someone else’s property, rendering life support facilities, vehicles or communications routes unusable.

Explain that the state of necessary defense

arises not only from the moment of the beginning of a socially dangerous encroachment that is not associated with violence dangerous to the life of the defender or another person, but also in the presence of a real threat of such an encroachment, that is, from the moment when the encroaching person is ready to proceed to commit the corresponding act. The court must establish that the defender had grounds for concluding that there was a real threat of attack.

4) When clarifying the question whether the actions of the attacker were unexpected for the defending person, as a result of which the defender could not objectively assess the degree and nature of the danger of the attack ( Part 2.1 37 of the Criminal Code

), the court should take into account:

- time,

- place,

- the situation,

- method of assault,

- events preceding the attack,

- as well as the emotional state of the person defending himself (state of fear, fright, confusion at the time of the attack, etc.).

Depending on the specific circumstances of the case, an attack committed, for example, at night

time with penetration into
a home
, when the defending person, in a state of fright, was unable to objectively assess the degree and nature of the danger of such an attack.

5) State of necessary defense

It can also be caused by a socially dangerous attack that is ongoing or ongoing in nature (for example, illegal imprisonment, hostage-taking, torture, etc.). The right to necessary defense in these cases remains until the end of such an attack.

In case of commission of the provisions provided for by the Special

part of the Criminal Code of acts in which the legal and actual moments of the end of the attack do not coincide, the right to necessary defense is preserved until the actual end of the attack.

Necessary defense can be recognized as legitimate regardless of:

— whether the offender has been brought to criminal liability;

— including in the case of protection from an attack by a person in a state of insanity

;

- or a person under age

, from which criminal liability arises.

A person who has caused harm to another person in connection with the latter’s commission of actions, although formally containing signs of any act provided for by the Criminal Code, but known to the person who caused the harm, due to its insignificance, cannot be recognized as being in a state of necessary defense .

did not pose a public danger.

6) Lawful actions of officials in the performance of their official duties, even if they are associated with 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. .).

7) Actions cannot be recognized as being committed in a state of necessary defense if harm was caused to the attacking person after the attack was prevented, suppressed or completed and the need for the use of protective measures clearly ceased, which was realized by the person defending.

In such cases, depending on the specific circumstances of the case, causing harm to the offender:

- can be assessed according to the rules 38 of the Criminal Code

;

- or the person defending himself is subject to liability on a general basis.

For the purpose of a correct legal assessment of such actions, the courts, taking into account all the circumstances of the case, must find out whether they were committed by the person defending himself in a state of sudden strong emotional excitement (affect) caused by a socially dangerous attack.

Explain to the courts that the state of necessary defense

may also occur in cases where:

- the defense followed immediately after the act of the assault, although it was completed, but based on the circumstances, the moment of its end was not clear to the defending person and the person mistakenly believed that the assault was continuing;

- the socially dangerous encroachment did not stop, but, obviously for the person defending himself, was only suspended by the encroaching person in order to create the most favorable environment for the continuation of the encroachment or for other reasons.

The transfer of weapons or other objects used as weapons during an attack from the attacker to the person defending 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, the a real threat of continuation of such encroachment.

9) A person who provoked an attack in order to use it as a reason to commit illegal actions (causing harm to health

, hooliganism, concealing another crime, etc.). What was done in these cases is qualified on a general basis.

10) When protecting against a socially dangerous attack involving violence, dangerous

for the life of the defender or another person, or with an immediate threat of using such violence (
Part 1 37 of the Criminal Code
), as well as in cases provided for in
Part 2.1 37 of the Criminal Code
, the defending person has the right to cause harm of any nature and extent to the attacking person.

Any harm can be done

EXCEEDING NEEDED DEFENSE

11) Explain to the courts that criminal liability for causing harm occurs for the defender only if the limits of necessary defense are exceeded, that is, when it is established in the case that the defender:

- resorted to protection from the attack specified in Part 2 37 of the Criminal Code

;

- in such ways and means, the use of which was clearly not caused by the nature and danger of the attack;

- and unnecessarily intentionally

caused
serious
harm to health or death to the offender.

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.

Intentional infliction of grievous bodily harm by exceeding

limits of necessary defense, which resulted in the death of the offender through negligence, should be qualified only under
Part 1 114 of the Criminal Code
.

Willful act does not entail criminal liability

infliction on the offender:

- harm to health of moderate severity ( 112 Criminal Code

)

- or slight harm to health ( 115 Criminal Code

)

- or battery ( 116 Criminal Code

)

- as well as causing any harm due to negligence

,

if this was a consequence of the actions of the person defending himself when repelling a socially dangerous attack.

12) In the event of an encroachment by several persons, the defending person has the right to apply to any of the encroachers such measures of protection as are determined by the nature and danger of the actions of the entire group.

13) When resolving the issue of the presence or absence of signs of exceeding the limits of necessary defense, the courts must take into account:

— object of encroachment;

- the method chosen by the encroaching person to achieve the result,

— heaviness

the consequences that could occur if the encroachment was completed,

— the presence of the need to cause death to the offender or serious harm to his health in order to prevent or suppress the assault;

- place and time of the encroachment, events preceding the encroachment,

- surprise of the attack,

- the number of persons who encroached and defended themselves,

— presence of weapons or other items used as weapons;

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

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

Having recognized in the actions of the defendant signs of exceeding the limits of necessary defense, the court cannot limit itself to a general formulation and 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.

14) Courts should keep in mind that the person defending himself, due to the emotional disturbance caused by the attack, cannot always correctly assess the nature and danger of the attack and, as a result, choose a proportionate method and means of defense.

The actions of the person defending cannot be considered as committed in excess of the limits of necessary defense if the harm caused, although it turned out to be greater than the harm prevented, but when causing the harm there was no obvious discrepancy between the protective measures and the nature and danger of the attack.

15) Killing should be limited when exceeding

limits of necessary defense (
Part 1 108 of the Criminal Code
) from murder in a state of sudden strong emotional excitement (affect) (
107 Criminal Code
), taking into account that crimes committed in a state of strong emotional excitement are characterized by causing harm to the victim - not with the purpose protection and, therefore, not in a state of
necessary defense
.

It is necessary to limit the intentional infliction of grievous harm to health when exceeding

limits of necessary defense (
Part 1 114 of the Criminal Code
) from causing grievous harm to health in a state of sudden strong emotional excitement (affect) (
113 of the Criminal Code
), taking into account that crimes committed in a state of strong emotional excitement are characterized by causing harm to the victim - not for the purpose of defense and, therefore, not in a state of necessary defense.

In addition, a mandatory feature of crimes committed in a state of sudden strong emotional excitement caused by the actions of the victim is the infliction of harm under the influence of precisely this excitement, while for crimes committed when

limits of necessary defense, this sign (presence of affect) is not required.

If the person defending himself exceeded the limits of necessary defense in a state of sudden strong emotional excitement (affect), his actions should be qualified under Part 1 108 of the Criminal Code

or
Part 1 114 of the Criminal Code
.

16) Courts need to distinguish between:

- state of necessary defense

;

- and a state of imaginary defense, when there is no real socially dangerous attack and the person mistakenly assumes its presence.

In cases where the situation gave reason to believe that a real socially dangerous attack was being committed, and the person who applied protective measures did not and could not realize the absence of such an attack, his actions should be considered as committed in a state of necessary defense.

In this case, 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 the use of such violence, is subject to liability for exceeding the limits of necessary defense.

In cases where a person did not realize, but due to the circumstances of the case should and could have realized the absence of a real socially dangerous attack, his actions are subject to qualification under the articles of the Criminal Code providing for liability for crimes committed through negligence

.

If a socially dangerous attack did not actually exist and the surrounding situation did not give the person any reason to believe that it was occurring, the person’s actions are subject to qualification on a general basis.

17) Clarify that the rules on necessary defense apply to cases of use of automatically triggered or autonomously operating means or devices not prohibited by law to protect interests protected by criminal law from socially dangerous attacks. If in these cases the harm caused to the offender is clearly

did not correspond to the nature and danger of the attack, the act should be assessed as exceeding the limits of necessary defense. When such means or devices are activated (put into action) in the absence of a socially dangerous attack, the act is subject to qualification on a general basis.

DETENTION

18) Draw the attention of the courts to the signs that delimit the necessary defense ( 37 CC

) from causing harm during the detention of a person who has committed a crime (
38 of the Criminal Code
).

The detention of a person who has committed a crime can be carried out even if there is no immediate danger of the detained person committing a socially dangerous attack. In this case, the detention of such a person is carried out in order to bring him to the authorities and thereby prevent the possibility of him committing new crimes.

If during the process of detention the detained person commits a socially dangerous offense, including one involving violence, dangerous

for the life of the person detaining him or other persons, or with an immediate threat of using such violence, causing harm to the detained person should be considered according to the rules on necessary defense (
37 of the Criminal Code
).

19) The right to detain a person who has committed a crime has not only authorized representatives of the authorities, but also other persons, including:

- victims of crime,

- or who became direct eyewitnesses of it,

- or persons who became reliably aware of its commission.

Provisions 38 of the Criminal Code

may be applied to these persons if they cause harm during the detention of the person who committed the crime.

20) Persons who have committed a crime should include persons who have committed as completed

, and
an unfinished
crime, as well as
accomplices
of the corresponding crime.
a conviction
that has entered into legal force is not a prerequisite for deciding the legality of causing harm to them during detention.

21) When resolving the issue of the legality of causing harm during the detention of a person who has committed a crime, the courts need to ascertain the circumstances indicating the impossibility of detaining such a person by other means.

If a crime is committed by several persons, causing harm is possible only in relation to those accomplices

, whom it was not possible to detain by other means.

22) The circumstances of detention (the situation of detention), which must be taken into account when determining the amount of permissible harm, should be understood as all circumstances that could affect the possibility of detention with minimal harm to the detainee (place and time of the crime immediately followed by detention, number, age and the gender of the detainees and detainees, their physical development, armament, the presence of information about the aggressive behavior of the detainees, their membership in a gang, terrorist organization, etc.).

23) Draw the attention of the courts to the fact that excess of measures

necessary to detain a person who has committed a crime entails criminal liability only in cases of intentional infliction of death,
serious
harm or
moderate
harm to health.

If the person who committed the crime

, during the arrest, less harm was caused than that provided for in
Part 2 114 of the Criminal Code
, the actions of the detaining person do not constitute a crime.

24) Based on the provisions of Article 38 of the Criminal Code

the detaining person must be sure that he is causing harm to the person who committed the crime (for example, when the detainee is a victim or an eyewitness of a crime, the detainee was directly pointed out by eyewitnesses of the crime as the person who committed it, when on the detainee or on his clothes, with him or

obvious traces of a crime were found home

If, during the arrest, the person was in good faith mistaken about the character

unlawful act committed by a detained person, mistaking for a crime an administrative offense or the act of a person under the
age of
criminal responsibility, or a person in a state
of insanity
, in cases where the situation gave reason to believe that a crime was being committed, and the person carrying out the detention did not realize and could not realize the actual nature of the act being committed, his actions should be assessed according to the rules of
Article 38 of the Criminal Code
, including those on the permissible limits of causing harm.

Similarly, situations should be assessed when, during detention, a person was in good faith mistaken about who exactly committed the crime, and the situation gave him reason to believe that the crime was committed by the person he detained, and at the same time, the person who carried out the arrest did not and could not realize the fallacy of your assumption.

If during the arrest the person was not aware, but due to the circumstances of the case he should have and could have been aware of the specified circumstances about the nature of the unlawful act and who exactly committed the crime, his actions are subject to qualification under the articles of the Criminal Code providing for liability for crimes committed through negligence

.

In the absence of these circumstances, causing harm to a person during his arrest is subject to classification on a general basis.

25) Courts should distinguish between necessary defense and harm when apprehending a person who has committed a crime from other circumstances precluding crime

acts provided for in
Chapter 8
of the Criminal Code.

When it is necessary to defend or detain a person who has committed a crime, it is unacceptable to cause harm to third parties. In the event that, when defending against a socially dangerous attack or when detaining a person who has committed a crime, harm is caused to the interests of third parties protected by criminal law, the act, depending on the specific circumstances, can be assessed as a lawful infliction of harm on the grounds provided for in Article 39 of the Criminal Code

,
41 Criminal Code
or
42 Criminal Code
, as
innocent
causing of harm or as
an intentional
or
careless
crime.

ARTICLE 108 CC

26) Explain to the courts that murder committed when exceeding

limits of necessary defense, as well as in case of
exceeding the measures
necessary to detain a person who has committed a crime, is subject to qualification under the relevant part
108 of the Criminal Code
and in those cases when it is associated with the circumstances provided for in paragraphs
“a”, paragraph “d” , clause "e" part 2 105 of the Criminal Code
.

In particular, murder committed when the limits of necessary defense were exceeded should be qualified only under 108 of the Criminal Code

and when it was committed under circumstances that are usually associated with the idea of ​​special cruelty (for example, murder in the presence of persons close to the victim).

A murder committed when the limits of necessary defense were exceeded by several persons jointly defending themselves from a socially dangerous attack should be qualified under Article 108 of the Criminal Code

.

27) Provisions 37 of the Criminal Code

and
38 of the Criminal Code
apply to law enforcement officers and military personnel who, in connection with the performance of their official duties, may take part in suppressing socially dangerous attacks or in detaining a person who has committed a crime.
Moreover, if, as a result of exceeding the limits of necessary defense or measures necessary to detain a person who has committed a crime, these persons commit murder or intentional infliction of grievous
harm or
moderate
harm to health, what they have done, if there are appropriate signs, is subject to qualification under
108 of the Criminal Code
or
114 of the Criminal Code
.

28) Law enforcement officers, military personnel and other persons who are permitted by law to use weapons, special means, combat and special equipment or physical force to perform the duties assigned to them by federal laws are not subject to criminal liability for harm caused if they acted in accordance with requirements of laws, charters, regulations and other normative legal acts providing for the grounds and procedure for the use of weapons, special means, military and special equipment or physical force.

Cannot be considered a crime

causing harm by such a person who used weapons, special means, military and special equipment or physical force in violation of the procedure for their use established by current legislation, if, based on the specific situation, the delay in the use of these items created an immediate danger to people’s lives or could entail other serious consequences consequences (ecological disaster, sabotage, etc.).

29) Draw the attention of the courts to the fact that, in accordance with 1066 of the Civil Code, damage caused in a state of necessary defense is not subject to compensation, unless its limits were exceeded.

Resolving the issue of compensation for harm caused as a result of the commission of crimes provided for in Article 108 of the Criminal Code

and
114 of the Criminal Code
, courts must take into account that damage in such cases is compensated on a general basis (
1064 of the Civil Code
).
In this case, the amount of compensation is determined by the court, taking into account the guilt of both the cause of harm and the victim whose actions caused the harm. The court, taking into account the property status of the person who caused the harm, has the right to reduce the amount to be collected ( 1083 Civil Code
).

When determining the amount of compensation for moral damage

caused as a result of the commission of these crimes, the requirements of reasonableness and fairness must be taken into account (
1101 Civil Code
).
Courts should take into account the degree of guilt of the harm-doer, as well as other circumstances worthy of attention ( 151 of the Civil Code
), which include the degree of guilt of the victim whose actions caused the harm.

Url Additional information:

— clause 2 part 1 24 Code of Criminal Procedure

dismissal of the case for lack of corpus delicti

- clause 3, part 2 302 of the Code of Criminal Procedure

acquittal, no crime

30) Explain to the courts that in cases of lawful infliction of harm in a state of necessary defense or when detaining a person who committed a crime, the basis for issuing an acquittal

a sentence or decision (ruling) to
terminate
a criminal case is the absence of corpus delicti in the act.

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