From a legal point of view, excess of self-defense is that the victim of an attack, in an effort to protect himself, causes the offender much more harm than he himself could cause to the victim. In general, the concept of self-defense is interpreted incorrectly by many citizens - people believe that resisting an attacker can lead to their own criminal liability. In fact, there is a clear line regulated by the legislative framework of the Russian Federation, which divides the actions of the victim into legal and illegal.
Self-defense, weapons and citizen consciousness
Without a legal education, and often even a minimum of knowledge in this area, people categorically assert that in Russia it is impossible to defend themselves, since the law equates this almost to a crime.
Where do these stereotypes come from? Firstly, media publications influence. Since any publication tries to attract as many readers as possible, the sensationalism of the materials presented forms an appropriate view on the topic of self-defense. But the reason for our citizens’ fear of protecting themselves and their loved ones is not only formed by the media. In many ways, this is a habitual desire to relieve oneself of responsibility. It’s easier to say that the law, the state system, or other people are to blame than to defend your rights.
In this article we will try to dispel the main myths about self-defense and responsibility for it before the law.
Imaginary defense: what is it?
We are talking about a situation where a person decided that his life was in danger, but in reality everything was not so. For example, a woman quarreled with her husband. A few minutes later, their daughter also joined the conflict. In a fit of anger, the man grabbed the girl by the hair and hit her. Trying to protect her daughter, the woman grabbed a kitchen knife and stabbed her husband with it twice.
The man survived, but was taken to hospital in serious condition. Then there was a trial at which the accused argued that she acted as part of the necessary defense, since during the quarrel her husband beat her and her daughter. However, the court was able to establish that the woman hit the man with a knife after the altercation, when he calmed down and no longer threatened anyone. Accordingly, self-defense was imaginary.
The culprit received three years probation. She also transferred 44 thousand rubles to the compulsory health insurance fund, thereby compensating the costs of treating the victim.
Myth 1. The law prohibits defending yourself until real damage has been caused.
Article 37 of the Criminal Code of the Russian Federation states that the use or threat of violence by the attacker is sufficient for the victim to have the right to self-defense. Regarding the threat or use of violence, the law says that the violence must be dangerous to the life of the defender.
The concept of “immediate threat” is clarified in Resolution of the Plenum of the Armed Forces of the Russian Federation No. 19 of 2012. This document provides characteristic signs of a threat to the life of the defender. These include:
Causing harm that endangers life (injuries to internal organs) and the use of weapons, as well as strangulation or arson of the victim.
But even without the use of weapons, self-defense under the Criminal Code of the Russian Federation is permissible if the attacker displays a weapon or threatens to kill. If in the circumstances of what was happening there were grounds to fear that the threat would become a reality, then the victim has the right to the necessary self-defense.
Thus, even killing an attacker, provided that he had a weapon in his hands and shouted out promises to kill, will not be an excess of self-defense under Article 37 of the Criminal Code of the Russian Federation.
How to prove self-defense?
Very often there are situations in which it is not enough to resist the attacker, but you also need to know how to prove self-defense in court in order to avoid liability. The importance of necessary defense in criminal law is enormous; no one can prohibit a person from taking advantage of the opportunity of self-defense. If you can correctly use this right, no one will blame you later for not wanting to resolve everything peacefully or not waiting for the police. If it turns out that you inflicted serious injuries on the attacker in self-defense, the first thing to do is to provide him with medical assistance and call an ambulance.
Do not run away under any circumstances, because leaving a person in danger is also a criminal offense.
From the point of view of the law, it does not matter whether the illegal act is carried out intentionally or through negligence. If they start strangling you in a dark entrance, the first thing you do is resist. You don’t have time to figure out whether this is a real criminal or a drunk neighbor who decided to play a joke on you. It is important that your resistance is timely, not premature, and not late. Of course, you shouldn't wait to get stabbed, but you should resist when there is a real threat.
In order to confirm this threat in court, try to remember what the criminal said at the time of the attack, how he behaved, remember, maybe someone saw your confrontation, describe in detail the circumstances of the attack, this is of great importance.
You will be provided with detailed advice on how to behave after the police arrive, and you must hire one. Before the police arrive, behave calmly, not aggressively, do not accuse the attacker of anything, the court will sort it out. Your aggressive behavior will be a sign that you feel guilty. If you understand that you have exceeded self-defense, but do not want to be held responsible for it, try to somehow make amends directly to the injured attacker. You can go to peace with him or compensate him for certain damage.
Unfortunately, there are many precedents in judicial practice when self-defense actually took place, but it was not the attacker who was convicted, but the person defending his rights and property. Everyone can determine the degree of seriousness of aggression and illegal intentions towards themselves in different ways. For some, the threat to life is considered as real, while others perceive it as a common occurrence. Our courts, as a rule, are far from wanting to establish the truth, so they make a decision that will be easier to argue.
Myth 3. You can only defend yourself with what you attack with. Attacked with a knife - you can't shoot
There are no such restrictions either in Article 37 of the Criminal Code of the Russian Federation or in Resolution of the Plenum of the Supreme Court No. 19. Article 37 states that in the absence of a threat of violence from the attacker, the actions of the defender must correspond to the actions of the attacker and must not exceed the limits of permissible self-defense.
That is:
- If the actions of the attacker pose a real threat to health and life, then you can defend yourself in any way without causing harm to third parties.
- If there is no threat to life, you need to act commensurate with the actions of the attacker. If the victim was punched by a miniature girl, then, of course, there is no reason to use a weapon for defense. But when attacked by a group of strong men, even if they are unarmed, there is a risk that the attackers will beat the victim to death with their fists. In this case, protective measures may be applied.
In specific situations, it can be difficult to assess all the risks and correctly apply existing defenses.
What to do in case of attack
If a person is attacked, then he should listen to the following advice:
- If possible, you should leave the place of conflict. Therefore, the best way out of the situation is to run away without looking back, forgetting about pride.
- It is better to report the attack to the police. Moreover, if possible, this should be done before the conflict begins. If a person believes that his health is in danger, then his call will not be considered a false call.
- If conflict cannot be avoided, then all that remains is to defend. It is better to start with “light” means of self-defense. A simple pepper spray can stop aggression. In addition, it is unlikely that the attacker will suffer much when using it.
Thus, if a person managed to fight off an attacker, this does not mean that his problems are over. For exceeding the limits of self-defense, you can get a real prison sentence. Therefore, the best advice in this situation would be to avoid conflicts.
Myth 4. If only one of the attackers has a knife, you can only defend against him with a knife
The Resolution of the Plenum of the RF Armed Forces clearly states that even if one of the group of attackers is armed, the defender has the right to apply protective measures to all members of the group that correspond to the danger of their common actions.
Based on this, the law does not provide for any restrictions on the use of means of self-defense in relation to unarmed members of a group in which there are armed participants.
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Myth 5. As soon as the attacker stops or the knife is taken away from him, self-defense stops
Stopping and stopping an attack are not the same thing. The criminal can stop only to deceive the defender. Therefore, in the same 19th Resolution of the Plenum of the Supreme Court, an explanation was given to the courts that the victim has the right to defend himself even after the cessation of the act of attack, if the fact of cessation was not obvious and the victim assumed that the attack was continuing.
The same applies to situations where the attack was only suspended, and the victim understood that it would soon continue.
Even after taking away weapons or other items that were used in the attack, the defender has the right to act according to the situation. Assessing the situation involves determining the real threat of continuing the attack, based on the number of attackers, their age, gender, and physical fitness.
Myth 7. You can defend yourself, but you can’t detain a criminal
In connection with this issue, it is worth taking into account the requirements of Article 39 of the Criminal Code of the Russian Federation. According to this rule of law, if the degree of self-defense was not exceeded, and harm to legally protected interests was caused in a situation of extreme necessity (to eliminate a threat to the individual), then such an excess is not considered a crime.
If the harm caused did not correspond to the danger posed by the attacker, or the harm was equal to or greater than that prevented, then the defender will be held criminally liable. But here there is an important caveat - provided that he caused the harm intentionally.
Important legal point
As one should assume, if a person’s life is in real danger, limiting oneself in the event of self-defense is, to say the least, unreasonable. But you always need to think about the consequences. Of course, you can recklessly use the harshest methods or use weapons, but as a result of this, a person risks going to jail. It is likely that from the point of view of justice and logic he will be right, but the law will think otherwise and the court will sentence him to imprisonment.
Such situations occur very often, which is why self-defense presupposes that a person should always know and be able to correctly position his actions. This is especially important because in many places in cities there are surveillance cameras, and conflicts can occur absolutely everywhere, including in shopping centers, parks, cinemas, etc.
All this suggests that you need to use any means of self-defense with your head. If they wanted to attack your girlfriend, and you broke the offender’s nose, he can sue you and you will lose. If someone threatened you with a knife, and you took it away and cut the offender, the court will find you guilty. Exceeding the limits of self-defense is fraught with the most unfavorable consequences, so you need to think about how, where and under what circumstances you defend yourself.
In further lessons of our self-defense course, we will talk mainly about ways to protect yourself that are not punishable by law and can be used in any life situations without fear of being prosecuted. However, do not lose your vigilance, strive for the conscious use of self-defense and try to avoid dangerous situations.
We’ll talk about how to avoid getting into trouble next, and we’ll start by looking at a rather interesting phenomenon due to which people often attract problems to themselves - this is victim behavior.
Myth 9. If the criminal later says that he only wanted to scare him, the defender will be imprisoned
Article 37 of the Criminal Code of the Russian Federation on necessary defense states that if it is impossible to assess the reality of the threat (due to the surprise of the attacker’s actions and for other reasons), the defender has the right to defend himself.
The Supreme Court also pointed out to lower courts the need to distinguish between imaginary and real self-defense. In a situation where the defender really believed that the attacker’s actions threatened his health, self-defense actions should be qualified as legal.
When and how to defend yourself
Necessary defense can be considered legitimate if two conditions are met:
- The violence threatened the life of the defender.
- Action equals reaction.
To better understand the issue of acceptable self-defense, let's look at a few examples. Let's say a citizen finds a thief in his apartment. Without thinking twice, the man hit the attacker on the head with a brick. He then called the police.
The police opened two criminal cases at once. One of them is for theft, and the second is for causing grievous bodily harm. Moreover, the actions of the owner of the house are unlikely to be recognized as self-defense, because the thief taking things out did not threaten his health or life. Property can be protected in another way - by calling the police.
For example, in the same situation, the thief took out a knife and began to threaten the apartment owner with it. In this case, you can even shoot the robber with a traumatic pistol. Moreover, self-defense can be recognized as legitimate even if the attacker dies.
Both swinging a knife and the words: “I’ll stab you now” can be regarded as a threat. However, if the opponent hurls insults without letting go, then you cannot start a fight.
There is one exception to this rule. Sometimes a person cannot adequately assess the threat to life due to stress or too rapid development of events. For example, in a dark alley, an unknown person quickly runs towards a girl, shouting something. She may well think that the man wants to attack her. Accordingly, the girl has the right to use a gas spray. If the attacker suffers, then in court he will have to prove that such consequences were caused by surprise and the inability to soberly assess the situation.
Myth 10. You cannot defend yourself with a weapon if you do not have the right to keep and carry it.
Article 37 of the Criminal Code of the Russian Federation contains no such restrictions. The text of this article states that its provisions apply to all persons, regardless of their professional training and official position. They also do not depend on the ability to seek help from others.
Thus, the victim has the right to defend himself by any means commensurate with the danger posed by the attacker.
16.1. Legal and psychological foundations of self-defense
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Throughout his life, a person finds himself in various extreme situations, including those related to the need to protect the life and health of others or his own property, and to assist law enforcement agencies in maintaining law and order. In cases provided for by law, it is allowed to resort to actions to suppress various types of offenses that pose a danger to the life of the person himself or other persons, or cause physical, property or other harm. Such actions are completely legal and do not entail criminal, administrative or civil liability. However, it must be remembered that the Criminal Code of the Russian Federation recognizes only necessary defense and extreme necessity as a circumstance excluding liability for causing harm. In this regard, in order to avoid any undesirable legal consequences, every person must know the conditions and procedure for actions not punishable by law in a state of necessary defense, since it is possible that he will have to face such situations. Let's consider what the necessary defense is. As has already been emphasized, protection from unlawful infringement is the natural right of every person. This is quite clearly stated in the Constitution of the Russian Federation: “Everyone has the right to defend their rights and freedoms by all means not prohibited by law.”[80] To characterize these methods, the concept of “necessary defense” was introduced in criminal law. In Part 1 of Art. 37 of the Criminal Code of the Russian Federation (Criminal Code of the Russian Federation) states that “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 and the state from a socially dangerous attack, if this the assault was associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence.”[81] Part 3 of the same article states that “all persons have the right to necessary defense equally, regardless of their professional or other special training and official position. This right belongs to a person regardless of the possibility of avoiding a socially dangerous attack or seeking help from other persons or authorities.” And further (Part 21 was introduced by Federal Law No. 162-FZ of December 8, 2003): “The actions of a defending person are not an excess of 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.”[ 82] According to the Criminal Code of the Russian Federation, intentional actions that clearly do not correspond to the nature and degree of public danger of the attack are considered to be exceeding the limits of necessary defense. Thus, in accordance with the Criminal Code of the Russian Federation, necessary defense is lawful protection from a socially dangerous attack by causing harm to the offender. However, in order for the harm caused to the attacker to be considered legitimate, it must meet a number of conditions. They are presented schematically in Figure 4. As can be seen from the presented diagram, the conditions for the legality of causing harm in a state of necessary defense can relate to encroachment and defense. Let's look at them in more detail. Causing harm in a state of necessary defense related to an attack is considered lawful if it meets the following conditions. 1. The encroachment must be socially dangerous. This is an attack that causes or is capable of causing harm to the interests protected by criminal law, that is, the individual, society and the state. It is not necessary that the encroachment be criminal. There are often such attacks that, according to formal legal grounds, are not criminally punishable, but can pose a serious danger to protected interests. For example, an attack on life and health by the insane, as well as persons under the age of criminal responsibility. Necessary defense against such attacks is also permissible. Another thing is that in these cases, a person exercising his right to necessary defense, based on moral considerations, must be especially attentive to the limits of its implementation, strive to cause the least harm in such a situation, or try to evade attacks. A person who takes all measures to evade the attack of an insane person (runs away, calls for help) deserves moral approval, not condemnation, since such behavior is not caused by cowardice, but by humane considerations and extreme caution.
Rice. 4. Conditions for the legality of causing harm in a state of necessary defense The question of the possibility of necessary defense against improper actions of officials deserves special consideration. Criminal law allows for the necessary defense against any socially dangerous actions of officials, i.e. those that cause significant harm to the interests protected by criminal law or are capable of causing such harm. Necessary defense is inadmissible against actions that were themselves committed in a state of necessary defense. In all cases, the necessary defense cannot be invoked by someone who, by his unlawful action, created a situation in which those around him were forced to use any violent actions against him. 2. The next condition is the existence of the encroachment. To recognize the existence of this condition, it is necessary to determine 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 itself and the presence of a real threat of encroachment. A person has the right to defend himself according to the rules of necessary defense even when the current situation makes it clear that an attack can be carried out immediately, that is, when there is an immediate threat of socially dangerous actions. At the same time, the necessary defense against attacks that are expected in the future is unacceptable. The final moment of the encroachment is associated with its end. The assault is considered completed if the threat of harm to the defender has passed. Causing harm in this case should be considered as an act of reprisal, an act of revenge, etc. However, it should be noted here that judicial practice proceeds from the fact that the state of necessary defense can occur even after the end of the act of encroachment, if, due to certain circumstances of the case, the defender was not the moment of its end is clear. 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. 3. Another condition for the legality of the necessary defense relating to an encroachment is the validity of the encroachment. An encroachment that exists objectively, in reality, and not in the imagination, is considered valid. To recognize an encroachment as existing in reality means to establish that it is objectively capable of causing significant harm to legally protected interests. However, in judicial practice there are cases of causing harm in a state of so-called imaginary defense, that is, defense against an imaginary, apparent, but actually non-existent attack. The legal consequences of an imaginary defense are determined according to the general rules about a factual error: 1) if a factual error excludes intent and negligence, then criminal liability for actions committed in a state of imaginary defense is also eliminated, since the person not only does not realize, but in the current situation should not and cannot realize that there is no socially dangerous encroachment; 2) if, in imaginary defense, the person causing harm to the imaginary encroacher did not realize that in reality there was no encroachment, being conscientiously mistaken in assessing the current situation, but due to the circumstances of the case should and could have been aware of this, responsibility for the harm caused occurs as for a careless crime.
It should be borne in mind that imaginary defense and necessary defense presuppose certain mandatory conditions: • necessary defense – the presence of a real encroachment; • imaginary defense - committing actions taken for such an attack.
If a person completely unreasonably assumed that he was being attacked, when neither the behavior of the victim nor the current situation gave him any real reason to fear an attack, he is subject to liability on a general basis as for an intentional crime. In these cases, the person’s actions are not associated with imaginary defense, and harm to the victim is caused due to the excessive, unjustified suspicion of the perpetrator. The conditions for the legality of causing harm in a state of necessary defense related to defense are the following: 1. If in a state of necessary defense the rights and interests of not only the person defending himself, but also other persons, society and the state are protected. 2. If harm can only be caused to the offender, but not to third parties. According to the law, necessary defense is allowed only in relation to the attackers themselves. If there are several infringers, the harm caused to any of them is considered legitimate, regardless of the degree of his participation in the infringement. However, if, when repelling even a real attack, a person caused harm not to the attacker, but to one of the strangers, he bears responsibility for this. Depending on the circumstances, his actions are classified as careless, and sometimes as intentional harm. It should be emphasized that the law, while providing for the right to the necessary defense against socially dangerous attacks by causing harm to the offender, does not provide restrictions regarding the nature of the harm. Therefore, with the necessary defense, the attacker can suffer a wide variety of damage: life, health, freedom, honor, dignity, property, etc. In legal practice, there are cases when, for example, the defender takes away and breaks the gun with which the attacker tried to commit murder, or kills a dog that the owner set on him. This also includes the fact of damage to a car by a traffic police officer when its owner does not stop on the order of the inspector. Moreover, according to the Civil Code of the Russian Federation, property damage caused in the state of protection from a socially dangerous attack is not subject to compensation, unless the limits of necessary defense were exceeded. 3. Another condition of necessary defense in the context of defense is that the limits of necessary defense are not exceeded. Such an excess is recognized as intentional actions that clearly do not correspond to the nature and degree of public danger of the encroachment. It is necessary to especially emphasize that we are not talking about every case, but specifically about the obvious, i.e., excessive discrepancy between the means of protection and the nature and danger of the attack. A simple, i.e. not obvious (not excessive) discrepancy does not mean an excess of necessary defense, since the criminal law allows, in the case of necessary defense, to cause more harm than that which threatens the protected legal interest. Such compliance or inconsistency is determined primarily by a comparison of the importance of the interests being protected and what is being harmed. When deciding on the presence or absence of signs of exceeding the limits of necessary defense, the compliance or inconsistency of the means of defense and attack, the nature of the danger threatening the defender, his strength and ability to repel the attack, as well as all other circumstances that could affect the real balance of forces of the attacker and defended (number of attackers and defenders, their age, presence of weapons, place and time of 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 degree of danger and the nature of the actions of the entire group. Moreover, neither the number of attackers and defenders, nor the presence of weapons in one or another is of decisive importance in itself. To determine whether the limits of necessary defense were exceeded, the mental state of the defender should also be taken into account. It must be borne in mind that in a state of emotional unrest caused by an assault, it is not always possible to accurately weigh the nature of the danger and choose proportionate means of protection. For some categories of citizens, necessary defense constitutes their legal obligation. Thus, the official duties of police officers and a number of other law enforcement agencies include the suppression of criminal attacks, but the rules for using the necessary defense for them are the same as for all citizens. Causing harm in conditions of exceeding the limits of necessary defense significantly reduces the social danger of the crime committed by the defender. Therefore, the Criminal Code of the Russian Federation provides for mitigation of punishment for those who have committed such crimes. Speaking about the human right to necessary defense, I would like to emphasize that this right serves the interests of preventing and suppressing crime. However, as a rule, citizens rarely resort to it, fearing criminal liability for exceeding the limits of necessary defense. This is mainly due to legal illiteracy and ignorance of their rights. As already noted, in the case of necessary defense, it is lawful to cause harm only to a specific person who commits a socially dangerous attack. However, there is a circumstance in the presence of which harm to third parties is also considered legitimate. Such a circumstance, according to the law, is an extreme necessity; it can be defined as the elimination of a danger that threatens the rights and interests of the individual, society and the state by causing harm to any outside individual or legal entity. Part 1 art. 39 of the Criminal Code of the Russian Federation states: “It is not a crime to cause harm to interests protected by criminal law in a state of extreme necessity, that is, to eliminate a danger that directly threatens the personality and rights of a given person or other persons, the legally protected interests of society or the state, if this danger could not exist.” eliminated by other means without exceeding the limits of extreme necessity.”[83] As in the case of necessary defense, to recognize the existence of a state of emergency requires the fulfillment of a number of conditions related to the nature of the danger being eliminated and to the actions to eliminate it. This can be represented schematically as follows (Fig. 5). The conditions for the legality of causing harm in a state of extreme necessity related to the creation of danger are the following. 1. The danger, to eliminate which actions are taken in a state of extreme necessity, can be caused by human behavior, the manifestation of elemental forces of nature, animal attacks and other circumstances (fires, train crashes, pipeline accidents, malfunction of mechanisms, etc.), and not only by socially dangerous actions of individuals, as is the case with necessary defense.
Rice. 5. Conditions for the legality of causing harm in a state of extreme necessity So, for example, a state of extreme necessity in defense occurs during a fire near vital facilities, the causes of which may be intentional arson or careless handling of fire by individuals, a short circuit in electrical wiring (mechanical malfunction ), lightning strike (action of natural forces), etc. To prevent the spread of fire to these objects, firefighters and other people, acting in a state of emergency, dismantle the structure located between the fire source and these objects. Although intentional damage or destruction of a structure constitutes a crime, persons involved in extinguishing a fire should not be held liable for this if they have complied with the other necessary conditions for the legality of their actions. The destruction of an attacking animal can be carried out in a state of extreme necessity, if it is attacked by a wild animal or a domestic animal acting without human intervention. In cases where, for example, a dog is set on by the owner, he is the perpetrator of a socially dangerous act, and therefore the destruction of the animal is carried out as a necessary defense, i.e., the person committing the socially dangerous attack suffers property damage by destroying the dog. The same state of necessary defense occurs when an attacking animal is destroyed that has broken free due to the negligence of the owner, guard, zoo administration, etc. Sources of danger in some cases can be pathological physiological processes occurring in the human body, dangerous to his life and health (illness, hunger, extreme need, etc.). In legal practice, there are cases when people who got lost in the tundra or taiga and were left without food were forced to open the warehouses of geological parties or hunters and confiscate part of the food so as not to die of hunger. Such situations are considered by the court as a state of extreme necessity. A similar situation may arise in the process of exercising the right to necessary defense or detaining a criminal. For example, criminals take hostages and hold them in premises belonging to an individual or legal entity. In order to suppress a socially dangerous attack, free hostages and detain criminals, law enforcement officers or private security guards enter the premises, damaging windows, doors, walls, floors or ceilings, depending on the situation. Here, property damage is caused not to the trespasser, but to the owner of the premises. This means that such damage cannot be considered as caused in a state of necessary defense. He is subject to the rules relating to causing harm in a state of emergency. At the same time, the harm caused in this situation by the offender himself is completely within the framework of necessary defense. Another example can be given when, to stop a vehicle driven by a traffic rule violator who has not complied with a police officer’s request to stop, a traffic police inspector has the right to use firearms or special means. In this case, the vehicle may suffer damage, sometimes quite significant. The actions of a police officer in relation to the offender are carried out in a state of necessary defense. Damage to a car should also be assessed as necessary defense if it belongs to the offender himself. However, a different approach requires assessing damage to a vehicle that does not belong to the offender, but to another legal entity or individual. This situation arises if the offender uses someone else’s car temporarily, for example, on a rental basis, or works as a driver in a car owned by a state, public or private organization, or has stolen this vehicle. In such cases, damage to the vehicle is not covered by the concept of “necessary defense”, since the damage is caused not to the offender, but to the owner. Damage must be considered taking into account the conditions for the legality of causing harm in a state of extreme necessity. 2. The condition for the legality of causing harm related to the creation of danger is that the danger must be immediate, that is, one that has already been caused or is being caused if measures are not taken to eliminate it, damage. Actions that cause harm to eliminate a danger that has not arisen or has already passed are unacceptable. In the previous examples, it is unacceptable to cause harm before the fire starts or after it ends. 3. The third condition for the legality of this kind of harm is that the danger must be real, that is, really existing, and not imaginary. If harm is committed by a person in a state of supposedly existing extreme danger, the person who caused the harm bears criminal or administrative liability for it, depending on the established form of his guilt. The conditions for the legality of causing harm in a state of emergency, related to actions to eliminate the danger, are the following. 1. The emergency nature of actions to eliminate the danger. Unlike cases of necessary defense, in circumstances of extreme necessity the means to eliminate the danger are very limited. If it is possible to eliminate it by other means, i.e. without causing harm, then there is no state of emergency and causing damage is recognized as unlawful and entails appropriate criminal or administrative liability. Only in cases where causing harm is the only way to prevent danger or avoid it, can we talk about the presence of extreme necessity and forced, i.e., non-criminal, lawful infliction of damage that does not entail criminal or administrative liability. 2. Harm is caused to third parties, that is, to unauthorized persons (individuals or legal entities), and not to those who created the danger, since damage to the person who created the danger is carried out in a state of necessary defense. In the earlier example of a fire, you can see that in the case of dismantling a building located between the source of the fire and an important object, the harm is caused not to the culprit of the fire, but to the owner of the building, who may have nothing to do with the incident. The same applies to damage to the property of third parties during the release of hostages, stopping a vehicle with an intruder, etc. Harm may also be caused to third parties in the event of an attack by animals, including wild ones. For example, hunting the Ussuri tiger is prohibited, but protection from its attack is carried out in a state of extreme necessity, therefore the person defending himself from such an attack should be released from liability for violating hunting rules. It should also be borne in mind that when attacked by animals, the danger is not always eliminated only by destroying them. Sometimes such attacks force people to eliminate the danger by causing harm to others, such as their property, which is used to repel or prevent an attack. 3. No exceeding the limits of extreme necessity. Part 2 Art. 39 of the Criminal Code of the Russian Federation states: “Exceeding the limits of extreme necessity is the infliction of harm that is clearly inconsistent with the nature and degree of the threatening danger and the circumstances under which the danger was eliminated, when harm was caused to the specified interests equal to or more significant than that prevented. Such an excess entails criminal liability only in cases of intentional harm.”[84] The harm caused in a state of extreme necessity must necessarily be less significant than the one prevented, and not equal, much less greater. This rule stems from the previous condition, and its essence is that, since harm is caused to strangers, it is unacceptable for them to suffer more damage than what could be caused by the danger, or even equal to this possible damage. The lesser of two evils must be chosen. In the previously given examples, this rule can be seen quite clearly: damage to the structure to prevent greater damage that would be caused by the further spread of the fire; liquidation of an animal or damage to property in order to avoid injury or death, etc. Unlike necessary defense, where the harm caused to the intruder is not subject to compensation, if absolutely necessary, according to the Civil Code of the Russian Federation, it must be compensated either by the person who caused it , or a person in whose interests they acted to eliminate the danger that threatened him. However, the court has the right, under certain circumstances, to fully or partially release these persons from compensation for damage. Thus, when acting in extreme situations, a person has the right to self-defense to protect honor, dignity and physical integrity. However, at the same time, he must clearly and clearly know the conditions, procedure and limits of his actions, both in a state of necessary defense and extreme necessity, which will help him avoid misunderstandings with the law. At the same time, it must be remembered that knowledge of the laws alone is not enough to protect oneself from possible dangers. Equally important in extreme situations is knowledge of modern means of protection and the ability to use them correctly and legally.
04.05.2013 14:47
Exceeding the limits of necessary defense
If there is a real threat to the health or life of the victim, or if the victim perceived the attacker’s actions as a threat, he has the right to defend himself and self-defense is not exceeded in this case.
If there is no threat to life and health from the attacker, then the actions of the defender may be recognized as exceeding the limits of necessary self-defense. Article 37 of the Criminal Code of the Russian Federation requires not to take actions in such a situation that are clearly inconsistent with the danger and nature of the attack.
About the permissible limit of self-defense
The acceptable limit of self-defense is when the person defending did everything possible to defend himself from the attacker, but did not overdo it. For example, while drinking alcohol, one drinking companion attacked another with a knife. In defense, the latter pulled out a knife and stabbed his opponent with it several times. The wounds turned out to be fatal, and the man died before the ambulance arrived. The judge decided that the defender had exceeded the permissible limits of self-defense. Therefore, he received a sentence of one and a half years in prison.
The convict appealed to a higher authority, and eventually the case reached the Supreme Court. Here the judges decided that the attacker's aggression did not stop even after the knife was taken from him. Accordingly, the victim could defend himself in any available way, and there is no corpus delicti here. The man was acquitted and received the right to rehabilitation.
According to the law, the right to defense is preserved only until the end of the encroachment. So, if the attackers decide to leave the scene, then the defender does not have the right to catch up and finish them off. Such actions are precisely considered to be in excess of the necessary defense.
