Causing harm during the detention of a person who has committed a crime (Article 38 of the Criminal Code of the Russian Federation)
In accordance with Art. 38 of the Criminal Code of the Russian Federation, it is not a crime to cause harm to a person who has committed a crime when he is detained in order to bring him to the authorities and suppress the possibility of him committing new crimes, if it was not possible to detain such a person by other means and the measures necessary for this were not exceeded.
The right to detain a criminal associated with causing him harm belongs to a person, regardless of the ability to avoid committing such actions or seek help from other people or authorities. It is an official duty for a number of law enforcement officials and other departments.
The conditions for the legality of causing harm during arrest are determined by a number of signs, which are usually divided into two groups:
a) related to arrest actions;
b) related to actions to cause harm.
The conditions of legality relating to actions of detention are as follows:
- the person has committed a crime;
- the person evades arrest;
- the presence of a special purpose of detention - delivering the person who committed the crime to the authorities and suppressing the possibility of him committing new crimes.
The conditions of legality related to actions causing harm are:
- causing harm only to the person who committed the crime;
- harm is caused when the person who committed the crime is detained;
- the harm is caused with the aim of bringing the person who committed the crime to the authorities and suppressing the possibility of him committing new crimes;
— causing harm is a necessary measure, because there are no other means by which the person who committed the crime could be delivered;
- if harm is caused, the measures necessary for this should not be exceeded.
The fact that a person has committed a crime is one of the objective grounds for his forcible detention.
The person who has committed a crime is subject to detention , and not another offense, misdemeanor, or minor act in the sense of Part 2 of Art. 14 of the Criminal Code, or a socially dangerous act that caused criminal harm.
The detainee must have sufficient information indicating the involvement of the detainee in the commission of the relevant crime. Such confidence seems completely justified when the detainee is caught committing a crime, when eyewitnesses directly point to him as the person who committed the crime, when obvious traces of a crime are found on him or on his clothes, on him or in his home, when he identified from a photograph from a wanted notice for a criminal, when there is any reliable information indicating that the belief that the detainee has committed a crime has deep grounds.
The detention of a person who has committed a crime, if there are other grounds for it, is equally necessary both at the time or immediately after its commission, and much later, while the legal consequences of the crime remain. For example, the detention of a suspect in a crime is just as necessary as the detention of an accused, defendant, convicted person or a person who has escaped from prison.
Detention is lawful only when the person, by his behavior, clearly demonstrates his intention to avoid detention and delivery to the authorities. Forcible detention can be carried out both in the form of passive resistance, when the detainee tries to run away or hide, and in the form of active resistance, when he offers physical resistance.
Opposition to detention, confirming the criminal’s desire to evade criminal responsibility, is another objective basis for the legality of forcible detention.
The criminal’s opposition to arrest must be real and take place immediately at the moment of his arrest.
Another condition of lawfulness is the purpose of the detention . Its purpose is to implement the tasks of justice, bringing a person to criminal responsibility, restoring justice, and preventing crimes. The purpose of detention is to bring a person to the authorities and prevent the possibility of him committing new crimes. It does not matter whether the arrest is carried out directly at the crime scene or after some period of time.
Causing harm during the detention of a person who has committed a crime is permitted only if there is firm confidence that this particular person committed the crime . For example, when a person is caught committing a crime or immediately after its commission, when eyewitnesses, including victims, directly point to this person as having committed a crime, if obvious signs are found on the suspect or on his clothes, on him or in his home traces of a crime, etc. The grounds for detention are also the presence of a court conviction convicting the detainee for a specific crime or the presence of a resolution to search for the person who committed the crime, as well as his escape from places of imprisonment, from arrest or from custody.
In practice, there are cases of harm being caused during arrest to persons mistakenly taken for a criminal, imaginary criminals. The issue of liability for causing harm during an imaginary arrest is resolved according to the general rules of error of fact. In cases where the person carrying out the detention not only does not realize, but, based on the specific circumstances of the case, should not and cannot realize the error of his ideas regarding the identity of the victim and the grounds for the detention, criminal liability due to lack of guilt is excluded. There is a case (incident), an innocent infliction of harm. If, due to the circumstances of the case, it should have and could, with a more attentive attitude to the situation that has arisen, not have made a mistake, liability for the harm caused shall arise as for a crime committed through negligence.
Causing harm to a person who has committed a crime during his arrest is lawful only in exceptional cases, i.e. when it is not possible to detain such a person by other means (Part 1 of Article 38 of the Criminal Code). Involuntary harm arises precisely because the person detained after committing a crime actively resists or seeks to evade detention and delivery to the authorities. Such actions are expressed in failure to comply with legal requirements to go to the authorities, attempts to escape, resistance, etc.
The validity of detaining a criminal causing him harm also depends on the nature of the crime he committed. The commission of crimes such as, for example, refusal to provide information to a citizen, obstruction of the exercise of the right to freedom of conscience and religion, etc. cannot serve as a basis for forcible detention.
The measures taken to detain a person who has committed a crime must be necessary, that is, justified by the circumstances of the case. The question of whether the infliction of this or that harm is necessary to apprehend the criminal is a question of fact. It must be decided on a case-by-case basis based on the specific circumstances of the case. Violence (especially serious) must be a forced, last resort when detention cannot be accomplished by other means.
Harm to a person who has committed a crime can only be caused for the purpose of detaining him and bringing him to the appropriate authorities. Causing harm to a person detained for committing a crime for another purpose is unlawful and entails criminal liability.
Causing harm during the detention of a person who has committed a crime will be lawful if the measures necessary for detention were not exceeded, and if it was not possible to detain the person by other means.
Exceeding the measures necessary for detention is recognized as their obvious inconsistency:
- the nature and degree of public danger of the crime committed by the detained person and
- circumstances of detention, when a person is unnecessarily caused clearly excessive harm not caused by the situation. Such an excess entails criminal liability only in cases of intentional harm.
The nature and degree of public danger constitute the qualitative and quantitative characteristics of the crime. The nature of public danger depends on the value of the object of the attack, the form of guilt and other objective-subjective signs of the act and the person who committed it. The degree of public danger is determined by the amount of harm caused, the degree of guilt, the place, time, and circumstances of the crime committed. The commission of crimes such as, for example, refusal to provide information to a citizen, obstruction of the exercise of the right to freedom of conscience and religion, etc. cannot serve as a basis for detention.
It should be borne in mind that the person detaining the criminal is not always able to choose means of detention that are absolutely proportionate to the nature and danger of the crime committed. It depends on various factors: strong emotional excitement; rapidly changing environment; professionalism and experience of the person making the arrest; time and place of detention, etc. Therefore, it is permissible to cause harm to the detainee that is more significant than what he himself caused. The legal assessment of what was done when the detainee made a conscientious mistake regarding the circumstances of the detention is carried out in the same way as in the case of necessary defense.
The circumstances of detention are understood as the entire set of features that characterize the situation of the attack: place, time, intensity, number of detainees, their age, armament, psychophysiological and physical capabilities of the attacker and the detainee, etc. The assessment of the legality of causing harm during detention must be carried out taking into account the specific circumstances in each specific case.
Manifestly excessive harm should be considered such harm, the infliction of which was clearly unnecessary. Here the law establishes fairly strict conditions, allowing the possibility of causing harm during detention only when it was not possible to detain the person by other means. Causing harm to a person who is ready to surrender to the authorities is not caused by any necessity. In this case, it is permissible to tie up, handcuff, deprive the person of the opportunity to move freely, etc. If the criminal tries to escape and escapes from the hands of the detainees, it is permissible to use violence, which can cause pain or health impairment of one degree or another.
Compliance with legal rules is especially important in cases of the use of weapons during arrest. The use of firearms capable of causing serious harm to health or death is permitted only when detaining especially dangerous criminals who have committed serious and especially serious crimes, or against men who have escaped from places of detention, if it is impossible to detain the criminal without the use of weapons.
Exceeding the measures necessary to detain a person who has committed a crime entails criminal liability only in cases of intentional harm (Part 2 of Article 38 of the Criminal Code).
An act committed when the limits of the need to detain a criminal are exceeded is recognized as a crime committed under mitigating circumstances. Such an excess is a constructive sign of murder, intentional infliction of grievous or moderate harm to health, committed under mitigating circumstances (Part 2 of Article 108 and Part 2 of Article 114 of the Criminal Code).
According to paragraph “g” of Part 1 of Art. 61 of the Criminal Code of the Russian Federation “committing a crime in violation of the conditions for the legality of detention of the person who committed the crime” is recognized as a mitigating circumstance.
The following features allow us to differentiate between the institutions of necessary defense and detention.
Firstly, necessary defense is a means of preventing impending danger and harm from a criminal attack, and the detention of a person who has already committed a crime is a means of ensuring justice and preventing new criminal actions of this person.
Secondly, the necessary defense is applied not only in cases where a crime is committed, but also in cases of other socially dangerous attacks, and causing harm during detention will be lawful only if the detainee commits a crime.
Thirdly, with the necessary defense, harm is caused to the offender during the period of the assault until its completion. Harm during arrest occurs after the end of the crime or after its suppression, but in the period after the cessation of the encroachment.
Fourthly, the necessary defense is carried out in order to protect the individual, the rights of the defender or other persons, the interests of society or the state protected by law, and the detention of a person who has committed a crime is in order to deliver him to the authorities and suppress the possibility of the detainee committing new crimes.
Fifthly, if, during the necessary defense, the person who has been attacked has the right to choose (to defend himself by causing harm to the attacker or to try to avoid danger in another way, for example, to run away or seek help from law enforcement officials), then causing harm to the criminal should be the only means his detention and transfer to the justice authorities.
Sixthly, in case of necessary defense, causing harm is obligatory, and harm during detention is lawful only if it was impossible to detain a person by other means.
In accordance with Art. 38 of the Criminal Code of the Russian Federation, it is not a crime to cause harm to a person who has committed a crime when he is detained in order to bring him to the authorities and suppress the possibility of him committing new crimes, if it was not possible to detain such a person by other means and the measures necessary for this were not exceeded.
The right to detain a criminal associated with causing him harm belongs to a person, regardless of the ability to avoid committing such actions or seek help from other people or authorities. It is an official duty for a number of law enforcement officials and other departments.
The conditions for the legality of causing harm during arrest are determined by a number of signs, which are usually divided into two groups:
a) related to arrest actions;
b) related to actions to cause harm.
The conditions of legality relating to actions of detention are as follows:
- the person has committed a crime;
- the person evades arrest;
- the presence of a special purpose of detention - delivering the person who committed the crime to the authorities and suppressing the possibility of him committing new crimes.
The conditions of legality related to actions causing harm are:
- causing harm only to the person who committed the crime;
- harm is caused when the person who committed the crime is detained;
- the harm is caused with the aim of bringing the person who committed the crime to the authorities and suppressing the possibility of him committing new crimes;
— causing harm is a necessary measure, because there are no other means by which the person who committed the crime could be delivered;
- if harm is caused, the measures necessary for this should not be exceeded.
The fact that a person has committed a crime is one of the objective grounds for his forcible detention.
The person who has committed a crime is subject to detention , and not another offense, misdemeanor, or minor act in the sense of Part 2 of Art. 14 of the Criminal Code, or a socially dangerous act that caused criminal harm.
The detainee must have sufficient information indicating the involvement of the detainee in the commission of the relevant crime. Such confidence seems completely justified when the detainee is caught committing a crime, when eyewitnesses directly point to him as the person who committed the crime, when obvious traces of a crime are found on him or on his clothes, on him or in his home, when he identified from a photograph from a wanted notice for a criminal, when there is any reliable information indicating that the belief that the detainee has committed a crime has deep grounds.
The detention of a person who has committed a crime, if there are other grounds for it, is equally necessary both at the time or immediately after its commission, and much later, while the legal consequences of the crime remain. For example, the detention of a suspect in a crime is just as necessary as the detention of an accused, defendant, convicted person or a person who has escaped from prison.
Detention is lawful only when the person, by his behavior, clearly demonstrates his intention to avoid detention and delivery to the authorities. Forcible detention can be carried out both in the form of passive resistance, when the detainee tries to run away or hide, and in the form of active resistance, when he offers physical resistance.
Opposition to detention, confirming the criminal’s desire to evade criminal responsibility, is another objective basis for the legality of forcible detention.
The criminal’s opposition to arrest must be real and take place immediately at the moment of his arrest.
Another condition of lawfulness is the purpose of the detention . Its purpose is to implement the tasks of justice, bringing a person to criminal responsibility, restoring justice, and preventing crimes. The purpose of detention is to bring a person to the authorities and prevent the possibility of him committing new crimes. It does not matter whether the arrest is carried out directly at the crime scene or after some period of time.
Causing harm during the detention of a person who has committed a crime is permitted only if there is firm confidence that this particular person committed the crime . For example, when a person is caught committing a crime or immediately after its commission, when eyewitnesses, including victims, directly point to this person as having committed a crime, if obvious signs are found on the suspect or on his clothes, on him or in his home traces of a crime, etc. The grounds for detention are also the presence of a court conviction convicting the detainee for a specific crime or the presence of a resolution to search for the person who committed the crime, as well as his escape from places of imprisonment, from arrest or from custody.
In practice, there are cases of harm being caused during arrest to persons mistakenly taken for a criminal, imaginary criminals. The issue of liability for causing harm during an imaginary arrest is resolved according to the general rules of error of fact. In cases where the person carrying out the detention not only does not realize, but, based on the specific circumstances of the case, should not and cannot realize the error of his ideas regarding the identity of the victim and the grounds for the detention, criminal liability due to lack of guilt is excluded. There is a case (incident), an innocent infliction of harm. If, due to the circumstances of the case, it should have and could, with a more attentive attitude to the situation that has arisen, not have made a mistake, liability for the harm caused shall arise as for a crime committed through negligence.
Causing harm to a person who has committed a crime during his arrest is lawful only in exceptional cases, i.e. when it is not possible to detain such a person by other means (Part 1 of Article 38 of the Criminal Code). Involuntary harm arises precisely because the person detained after committing a crime actively resists or seeks to evade detention and delivery to the authorities. Such actions are expressed in failure to comply with legal requirements to go to the authorities, attempts to escape, resistance, etc.
The validity of detaining a criminal causing him harm also depends on the nature of the crime he committed. The commission of crimes such as, for example, refusal to provide information to a citizen, obstruction of the exercise of the right to freedom of conscience and religion, etc. cannot serve as a basis for forcible detention.
The measures taken to detain a person who has committed a crime must be necessary, that is, justified by the circumstances of the case. The question of whether the infliction of this or that harm is necessary to apprehend the criminal is a question of fact. It must be decided on a case-by-case basis based on the specific circumstances of the case. Violence (especially serious) must be a forced, last resort when detention cannot be accomplished by other means.
Harm to a person who has committed a crime can only be caused for the purpose of detaining him and bringing him to the appropriate authorities. Causing harm to a person detained for committing a crime for another purpose is unlawful and entails criminal liability.
Causing harm during the detention of a person who has committed a crime will be lawful if the measures necessary for detention were not exceeded, and if it was not possible to detain the person by other means.
Exceeding the measures necessary for detention is recognized as their obvious inconsistency:
- the nature and degree of public danger of the crime committed by the detained person and
- circumstances of detention, when a person is unnecessarily caused clearly excessive harm not caused by the situation. Such an excess entails criminal liability only in cases of intentional harm.
The nature and degree of public danger constitute the qualitative and quantitative characteristics of the crime. The nature of public danger depends on the value of the object of the attack, the form of guilt and other objective-subjective signs of the act and the person who committed it. The degree of public danger is determined by the amount of harm caused, the degree of guilt, the place, time, and circumstances of the crime committed. The commission of crimes such as, for example, refusal to provide information to a citizen, obstruction of the exercise of the right to freedom of conscience and religion, etc. cannot serve as a basis for detention.
It should be borne in mind that the person detaining the criminal is not always able to choose means of detention that are absolutely proportionate to the nature and danger of the crime committed. It depends on various factors: strong emotional excitement; rapidly changing environment; professionalism and experience of the person making the arrest; time and place of detention, etc. Therefore, it is permissible to cause harm to the detainee that is more significant than what he himself caused. The legal assessment of what was done when the detainee made a conscientious mistake regarding the circumstances of the detention is carried out in the same way as in the case of necessary defense.
The circumstances of detention are understood as the entire set of features that characterize the situation of the attack: place, time, intensity, number of detainees, their age, armament, psychophysiological and physical capabilities of the attacker and the detainee, etc. The assessment of the legality of causing harm during detention must be carried out taking into account the specific circumstances in each specific case.
Manifestly excessive harm should be considered such harm, the infliction of which was clearly unnecessary. Here the law establishes fairly strict conditions, allowing the possibility of causing harm during detention only when it was not possible to detain the person by other means. Causing harm to a person who is ready to surrender to the authorities is not caused by any necessity. In this case, it is permissible to tie up, handcuff, deprive the person of the opportunity to move freely, etc. If the criminal tries to escape and escapes from the hands of the detainees, it is permissible to use violence, which can cause pain or health impairment of one degree or another.
Compliance with legal rules is especially important in cases of the use of weapons during arrest. The use of firearms capable of causing serious harm to health or death is permitted only when detaining especially dangerous criminals who have committed serious and especially serious crimes, or against men who have escaped from places of detention, if it is impossible to detain the criminal without the use of weapons.
Exceeding the measures necessary to detain a person who has committed a crime entails criminal liability only in cases of intentional harm (Part 2 of Article 38 of the Criminal Code).
An act committed when the limits of the need to detain a criminal are exceeded is recognized as a crime committed under mitigating circumstances. Such an excess is a constructive sign of murder, intentional infliction of grievous or moderate harm to health, committed under mitigating circumstances (Part 2 of Article 108 and Part 2 of Article 114 of the Criminal Code).
According to paragraph “g” of Part 1 of Art. 61 of the Criminal Code of the Russian Federation “committing a crime in violation of the conditions for the legality of detention of the person who committed the crime” is recognized as a mitigating circumstance.
The following features allow us to differentiate between the institutions of necessary defense and detention.
Firstly, necessary defense is a means of preventing impending danger and harm from a criminal attack, and the detention of a person who has already committed a crime is a means of ensuring justice and preventing new criminal actions of this person.
Secondly, the necessary defense is applied not only in cases where a crime is committed, but also in cases of other socially dangerous attacks, and causing harm during detention will be lawful only if the detainee commits a crime.
Thirdly, with the necessary defense, harm is caused to the offender during the period of the assault until its completion. Harm during arrest occurs after the end of the crime or after its suppression, but in the period after the cessation of the encroachment.
Fourthly, the necessary defense is carried out in order to protect the individual, the rights of the defender or other persons, the interests of society or the state protected by law, and the detention of a person who has committed a crime is in order to deliver him to the authorities and suppress the possibility of the detainee committing new crimes.
Fifthly, if, during the necessary defense, the person who has been attacked has the right to choose (to defend himself by causing harm to the attacker or to try to avoid danger in another way, for example, to run away or seek help from law enforcement officials), then causing harm to the criminal should be the only means his detention and transfer to the justice authorities.
Sixthly, in case of necessary defense, causing harm is obligatory, and harm during detention is lawful only if it was impossible to detain a person by other means.
Judicial practice under Article 38 of the Criminal Code of the Russian Federation
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 26, 2017 N 9-N17-1
In accordance with Art. Under the Criminal Code of the RSFSR, execution was replaced by imprisonment for 8 years with strict isolation and with loss of rights for 5 years, with confiscation of property and in compliance with Art. Criminal Code of the RSFSR with credit for pre-trial detention of 9 months 28 days.
Determination of the Constitutional Court of the Russian Federation dated December 19, 2019 N 3306-O
Also, in the resolution of the Plenum of the Supreme Court of the Russian Federation dated September 27, 2012 N “On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime,” it is explained that actions cannot be recognized as committed in a state of necessary defense if harm is caused to the offender after the encroachment was prevented, suppressed or completed and there was clearly no need for the use of protective measures, which was realized by the person defending; in such cases, depending on the specific circumstances of the case, the harm caused to the offender may be assessed according to the rules of the article of the Criminal Code of the Russian Federation, or the person defending himself shall be liable on a general basis; in order to correctly evaluate such actions legally, 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 (clause 7); 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 an attack (paragraph four of paragraph 8).
Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 29, 2021 N 21
The provisions of the articles and the Criminal Code of the Russian Federation apply to private security guards who, in connection with the performance of their 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, a private security guard commits murder or intentional infliction of grievous or moderate harm to health, what he has done, if there are appropriate signs, is subject to qualification under Article 108 or Article 114 Criminal Code of the Russian Federation.
Determination of the Constitutional Court of the Russian Federation dated February 28, 2019 N 542-O
The resolution of the Plenum of the Supreme Court of the Russian Federation dated September 27, 2012 N “On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime” clarifies that actions cannot be recognized as committed in a state of necessary defense if harm was caused to the offender after how the encroachment was prevented, suppressed or ended and the use of protective measures was clearly no longer necessary, which was realized by the person defending; in such cases, depending on the specific circumstances of the case, the harm caused to the offender may be assessed according to the rules of the article of the Criminal Code of the Russian Federation, or the person defending himself shall be liable on a general basis; in order to correctly evaluate such actions legally, 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 (clause 7); 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 an attack (paragraph three of paragraph 8).
“Review of the practice of application by courts of the provisions of Chapter 8 of the Criminal Code of the Russian Federation on circumstances excluding the criminality of an act”
Issues of application of the provisions of the criminal law on circumstances excluding the criminality of an act are explained in the resolution of the Plenum of the Supreme Court of the Russian Federation dated September 27, 2012 N “On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime” (hereinafter referred to as the resolution of the Plenum) . These clarifications contribute to the formation of a uniform practice of applying articles , , 108 and 114 of the Criminal Code of the Russian Federation.
Exceeding the limits of necessary defense
Concept
Modern legislation provides for the right to necessary defense measures as the innate right of any individual.
It is determined by the very existence of society.
But this right cannot in any way become a method of lynching or an option for reprisals against the offender.
It should be taken into account that the law provides for situations where violence is dangerous to the life of the defender, including those provided for by the Criminal Code of the Russian Federation, such as the threat of using this type of violence, which may completely exclude the onset of criminal liability for exceeding the limits of necessary defense, even in case of murder.
That is, causing serious harm to health or death to the offender in such circumstances will be lawful.
Thus, the concept of exceeding the limits of necessary defense will remain for situations where violence was not used, and there was no threat of using this type of violence.
Exceeding the necessary defense is considered to be the infliction of serious harm to health or death to the attacker, in situations where there was a clear discrepancy between such actions and the nature of the attack, as well as the danger of the attack.
Article 37 of the Criminal Code of the Russian Federation became reformative in the institution of necessary defense.
In the 2002 edition of this article, the scope of necessary defense measures was significantly expanded.
Thus, protection from an attack that does not involve life-threatening violence or the threat of such violence, when the limits of necessary defense were not used, is considered legitimate.
That is, there should have been no intentional actions.
Infliction of the limits of necessary defense can be considered only in cases where the offender suffered serious harm to health or death.
At the same time, the harm from the actions of the defender does not correspond to the degree and nature of the encroachment.
Thus, there is a significant difference between an attempt to inflict beatings and an attempt to encroach on life.
The more severe the attack is committed, the more stringent self-defense measures can be applied.
Thus, inflicting moderate or mild harm or beatings on an encroaching citizen will be completely lawful.
Qualification
Murder in excess of the necessary defense is an act when the person committing the defense consciously used for his defense such methods and methods that could not have been caused either by the nature of the attack or by the real situation.
At the same time, the defender consciously and intentionally caused death to the attacker.
This situation can be specified as causing death in necessary defense against violence that was not life-threatening .
In order to qualify the actions of the defender as exceeding the limits of necessary defense and to limit the completely legitimate use of harm to health, it is necessary to record the psychological attitude of the person committing the defense to the committed act and the death of the offender.
For murder in excess of the necessary defense, the following characteristic is characteristic: a person could act with indirect or direct intent regarding his act and causing the death of the offender .
The fault for exceeding the limits of necessary defense is the very psychological attitude of the defender towards the choice of a method of defense, with the help of which excessive harm was caused to the attacker.
At the same time, the defender deliberately allowed such harm to be caused.
Responsibility
Article 108 of the Russian Criminal Code provides for criminal liability for murder when the limits of necessary defense are exceeded.
Murder committed under such circumstances is punishable by imprisonment for up to 2 years, or correctional labor for up to 2 years, or restriction of freedom of the person who committed the crime for up to 2 years, or forced labor for up to 2 years.
Subjective side
In order to establish a clear discrepancy between the nature of the defense and the nature of the attack, and therefore to correctly resolve the issue of qualification of the act, it is necessary to study a set of subjective criteria .
These criteria are of particular importance in order to correctly assess the crime from a legal point of view.
If we consider murder in excess of the limits of necessary defense from the subjective side, then it is an unlawful act of taking the life of an attacker.
At the same time, the defender directly or indirectly allowed the defense to be exceeded, which led to the death of the attacker .
An obligatory feature of the subjective side of this crime is the goal of protecting the rights and personality of the defender, which are protected by the law of interests of the state or society.
When making a defense, the defender understands and can foresee the real consequences of his actions, namely, the onset of death .
In other words, he can consciously admit the possibility of the above-mentioned consequence, choosing any means at his disposal that allow him to achieve the desired.
At the same time, the perpetrator realizes that he exceeds the limits of necessary defense .
