Even without taking into account legal provisions, it is clear to everyone that everyone has the right to self-defense and the protection of others. This article will talk about situations when permissible self-defense measures are exceeded, and the person defending himself becomes a criminal.
For exceeding the limits of self-defense, criminal liability is provided.
Liability for excess of defense
For committing murder in excess of permissible measures and limits of self-defense, criminal liability is provided in accordance with Article 108 of the Criminal Code of the Russian Federation, which states the following:
- Murder committed when exceeding the limits of necessary defense is punishable by correctional labor for a term of up to two years, or restriction of freedom for a term of up to two years, or forced labor for a term of up to two years, or imprisonment for the same term.
- Murder committed while exceeding the measures necessary to detain the person who committed the crime is punishable by restriction of freedom for a term of up to three years, or forced labor for a term of up to three years, or imprisonment for the same term.
Accordingly, in this article under consideration, part 1 of this article applies, and the maximum penalty is imprisonment for 2 years.
Conclusion
As we can see from the above example, when assessing the actions of the defender, the court took into account the extremely short period of time between the suppression (exceeding the limits of necessary defense) by Shishkin of the unlawful encroachment on the part of Ushkov and Ulyanov and the emergence of an imaginary threat from the approaching Semenov and Krutikov.
The court came to the conclusion that this circumstance, taking into account the intensity of the assault committed, did not allow the defender to adequately assess the situation in terms of establishing the presence and degree of threat posed by surrounding persons (sentence of the Baryshevsky City Court of the Sverdlovsk Region, a certificate based on the results of a study of the practice of application by courts of the rules on necessary defense and other circumstances excluding the criminality of the act, in cases considered in 2009 - the first half of 2011).
Thus, in practice, both the category of surprise of an attack is used when assessing the actions of the defender within the framework of necessary defense, and the category of imaginary defense.
Each attack is associated with a traumatic situation for the defender, which must also be taken into account; this issue will be discussed in the article: Correlation of necessary defense with a traumatic situation. How can the combination of these two categories help defense?
Author – lawyer Mikhail Vladimirovich Spiridonov
Features of the crime
The line between murder in self-defense and premeditated murder (Article 105) is so small that, turning to existing judicial practice, it is clear that situations qualified under 108 of the Criminal Code of the Russian Federation can be counted on one hand. In this regard, a logical question arises: who is to blame for this, the court or the people themselves. And here the opinions of lawyers differ, since, indeed, sometimes guilty verdicts are passed when it seems that there are no great grounds for qualification under Article 108, but Unfortunately, the court sometimes takes a simpler accusatory route.
Surely many (especially those who are involved or interested in jurisprudence) know a case that is popularly called the “Ivannikova Case”.
The situation was as follows. Citizen Ivannikova, returning home, decided to hitch a ride and ask for a ride. Citizen Baghdasaryan responded to the request. Instead of taking the woman to the address she needed, the driver drove the car to a dead end and blocked all the windows and doors. Bagdasaryan began to take active steps to induce the woman to have intimacy, but, having received a refusal, began to behave aggressively and tried to rape Ivannikova with all the accompanying actions - threats, blows, etc. Somehow, during the scuffle, the woman ended up in the hands of the knife she used to stab the attacker in the leg. Due to his wound, Baghdasaryan died before the ambulance arrived.
Instead of Article 108 of the Criminal Code of the Russian Federation, the crime was initially classified under Part 4 of Article 111 of the Criminal Code of the Russian Federation (intentional infliction of grievous harm leading to death), and subsequently reclassified to Article 107 of the Criminal Code of the Russian Federation (murder in a state of passion). The court also accepted all civil claims from the relatives of the deceased in the amount of more than 200,000 rubles. Here is a non-fictional situation in which, it would seem, everything is quite clear, but for some reason the court and the investigation interpret the circumstances in a completely opposite direction. An example should be given of a situation that was qualified under Article 108 of the Criminal Code of the Russian Federation:
A group of young people were “culturally” relaxing in the apartment, drinking alcoholic beverages. Due to personal hostility, a conflict arose between the two defendants. Full Name 1 forcefully pushed his opponent Full Name 2 onto the corner of the kitchen table, as a result of which Full Name 2 received a puncture wound with a blunt object. But Full Name 1 did not intend to stop there and, picking up a kitchen knife, began to threaten Full Name 2.
Full name 3, realizing that the situation had taken a bad turn, tried to intervene and calm down full name 1, but in his attempt he only received a puncture wound with a knife in the abdominal area. Full Name 2 rushes at Full Name 1 in order to take away the knife and, during a short fight, strikes the attacker’s hand with a knife, accidentally cutting an artery. The attacker died from his wound in the ambulance.
A reasonable question arises: these two examples described above are similar in many ways, but in the first case the punishment was much more severe than in this example.
Based on this, as well as numerous recommendations from practicing lawyers, it is necessary to highlight the circumstances and evidence that can help confirm the necessary self-defense:
- the presence of cuts, bruises, abrasions, scratches on the accused;
- expert opinion;
- testimony of witnesses and eyewitnesses;
- video or audio recording of the incident.
But the key word here is “may,” since sometimes even this information is ignored by the investigation and the court.
Killing a dog in self-defense
There is no special section or set of laws dedicated to dogs in Russia. At best, there are some regional acts.
Only Article 245 of the Criminal Code of the Russian Federation talks about cruelty to animals, but the term “self-defense” is not mentioned. We are talking only about hooliganism, malicious intent and self-interest.
If a dog attacks a person, practice shows that the owner of the animal will answer. Most often, Article 118 on causing harm is used.
In any case, killing a dog cannot be equated to taking the life of a person. Especially if the animal is stray, and therefore can be extremely dangerous.
What advice do practicing lawyers give to their clients when it comes to Article 108? There are only a few of them: avoid dangerous situations, study effective methods of self-defense in theory and practice, and also maintain clarity of thinking in any situation. In this case, the threat of turning from a victim into a criminal is significantly reduced.
Legal provisions and clarifications
The Criminal Code of the Russian Federation, in Article 37, provides a list of circumstances that fall under the concept of necessary defense:
- It is not a crime to cause harm to an attacker in a state of necessary defense, that is, when protecting the personality and rights of the defender or other persons, the legally protected interests of society or the state from a socially dangerous attack, if this attack was associated with violence dangerous to the life of the defender or another person , or with an immediate threat of such violence. Protection from an attack that is not associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence, is lawful if it does not exceed the limits of necessary defense, that is, deliberate actions that are clearly inconsistent with the nature and danger encroachments.
- The actions of a defending person do not exceed the limits of necessary defense if this person, due to the surprise of the attack, could not objectively assess the degree and nature of the danger of the attack.
- The provisions of this article apply equally to all persons, regardless of their professional or other special training and official position, as well as regardless of the ability to avoid a socially dangerous attack or seek help from other persons or authorities.
The concept of “dangerous public encroachment” was explained by the Plenum of the Supreme Court of the Russian Federation in Resolution No. 19 of September 27, 2012, namely:
- 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 can be expressed, in particular, in statements about the intention to immediately cause death or harm to health to the defender or another person, dangerous to life, demonstrations to the attacker of weapons or objects used as weapons, explosive devices if, taking into account the specific situation, there were grounds to fear the implementation of this threat.
This resolution is quite extensive and covers many features of such a crime.
Sample petition to terminate a criminal case under Art. 37 of the Criminal Code of the Russian Federation
Investigator of the investigation department
from Lawyer
Petitions
on termination of a criminal case for lack of corpus delicti due to the presence of the necessary defense
According to investigators, K. committed a crime under Part 1 of Article 105 of the Criminal Code of the Russian Federation. At the same time, the factual circumstances of the case indicate the absence of signs of a crime in K.’s actions, namely:
From K.’s explanations it follows that the victim was characterized extremely negatively (he used drugs, alcohol). This circumstance is also confirmed by the conclusion of expert No. 1074, according to which at the time of the conflict the victim was heavily intoxicated.
In addition, it was established that the victim had abrasions on the face (5), on the neck (16), on the anterior chest (9), formed within 12 hours of the time of death, which indicates that these injuries were not received during the conflict in question , and previously – in a different place. Consequently, the victim had also previously entered into conflicts with other persons using physical violence. Such actions of the victim were the usual norm of his behavior during life.
The case materials also confirm that K. had previously contacted law enforcement agencies regarding the fact that the victim had suffered bodily harm.
Thus, it is obvious that K. was really afraid and apprehensive of the victim, and feared for her life and health.
Moreover, the conflict was provoked by the victim himself, who entered K.’s home at about 01:00, inflicted bodily harm on her, including using a knife, and threatened to kill her.
The duration of the injuries inflicted on the victim, according to the expert’s conclusion, corresponds to the time of the conflict, which means that without any gap in time they were directed solely to suppress the socially dangerous encroachment of the victim.
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These circumstances directly indicate the presence of a socially dangerous attack on the part of the victim. The attack by the murdered man was sudden, causeless and swift. The threats to K.’s life and health were real, and her defense was adequate and comparable to the existing threats to life and health.
Under such circumstances, K. was in a state of necessary defense, defending herself from an attack that was dangerous to her life, and therefore causing grievous harm to the attacker’s health, resulting in death, by virtue of Part 1 of Article 37 of the Criminal Code of the Russian Federation is not a crime, and therefore , the criminal case against my client is subject to termination due to the absence of corpus delicti in her actions on the basis of paragraph 2 of part 1 of Article 24 of the Criminal Procedure Code of the Russian Federation.
Based on the foregoing,
ASK:
- terminate the criminal case against K. on the basis of paragraph 2 of part 1 of article 24 of the Criminal Procedure Code of the Russian Federation due to the absence in her actions of the corpus delicti provided for by part 1 of article 105 of the Criminal Code of the Russian Federation.
- recognize K.'s right to rehabilitation and compensation for property, moral damage and restoration of other rights in accordance with Articles 135, 136 and 138 of the Criminal Procedure Code of the Russian Federation.
Date, signature
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