Is an administrative offense always a basis for bringing to administrative responsibility? No not always. The Code of Administrative Offenses of the Russian Federation provides for several mechanisms for exemption from such liability, for example, according to Art. 2.7, if a person caused harm to legally protected interests in a state of extreme necessity. But what is “extreme necessity”?
An analysis of judicial practice shows that persons brought to justice often refer to this article, but not everyone manages to achieve a decision in their favor - primarily due to an incorrect interpretation of the meaning of the concept of “extreme necessity.”
So, in some cases the courts agree with the arguments about acting in a state of emergency, but in others they do not. Let's talk about what “extreme necessity” is from the point of view of the Code of Administrative Offenses of the Russian Federation.
Necessary defense
The concept of necessary defense is more closely related to the branch of criminal law. What is meant by necessary defense? Necessary defense is protection from criminal attacks on oneself or other persons . The condition of necessary defense excludes criminal liability. However, the law clearly states that the necessary defense must be proportionate to the attack. And this is where problems with value judgments arise.
To give a simple example, going beyond the necessary defense would be a fatal shot at an attacking person if he is armed only with a stick. But taking into account the special nature of this concept, even in such a situation one can find certain circumstances that will tip the scales in the direction of not exceeding the necessary defense. That is, in defense, the harm must necessarily be caused to the very person who originally tried to carry out the criminal attack.
The law also provides for the fact that even if it is possible to call for help or run away, if the attacker was injured, this will still be assessed as necessary defense. Exceeding the limits of necessary defense constitutes a special, separate crime not associated with any other criminal acts. In general terms, an example can be given as follows: an attack on a person by a criminal with a knife, while the potential victim stuns the criminal with a stick, fearing for his life and health.
The goal of necessary defense is to stop the criminal attack and prevent its recurrence in the future. With this action, the initiative to use force to eliminate a criminal attack comes from the person himself; he acts at his own request.
You can't blame, you can't pardon.
Circumstances excluding the criminal liability of a doctor. Justified risk and extreme necessity.
The peculiarities of medical activity rightfully include its manipulations; the life or health of the patient can be harmed. At the same time, there is no mention in medical legislation of the professional risks of doctors. This leads to patients making claims against doctors, and cases of medical workers being brought to criminal liability are multiplying.
Under certain circumstances, criminal law can protect a physician. When a doctor acts in circumstances of extreme necessity or reasonable risk, the medical professional does not become liable, even if his actions caused harm to the patient’s health or led to his death. However, in order for the Criminal Code to “stand” on the side of the doctor, it is necessary that a number of important conditions be met, which are useful to know about in order to understand which actions will not be considered by the court as criminally punishable. Antonina Chuprova , professor of the Department of Criminal Law and Criminology of the All-Russian State University of Justice, expert of the National Medical Chamber, Doctor of Law, Professor, talks about the circumstances under which a medical worker does not face criminal liability
Main signs of justified risk.
Article 41 of the Criminal Code of the Russian Federation “Reasonable risk” states that causing harm at a reasonable risk is not a crime.
But the risk must have signs of validity. A medical worker will not be liable for harm caused only if all the requirements and conditions for the validity of the risk and risky actions have been met. And these requirements are very extensive.
The first sign that a risk is justified is the socially beneficial goal that the medical worker strives for. This goal may be related to both the interests of a particular patient and the interests of the entire society. For example, a socially beneficial goal can be both the development of a new vaccine and the doctor’s desire to improve the patient’s condition. The law does not require that the goal be achieved; the main thing is that all the doctor’s actions must be aimed specifically at achieving it.
The most important requirement for the validity of risk is that a socially beneficial goal cannot be achieved by actions not related to risk. If the doctor could achieve his goal without taking risks, then if negative consequences for the patient occur, the doctor’s risk will not be considered justified.
A risk is considered reasonable only if the physician has taken sufficient measures to prevent harm to the patient. A special examination will assess whether these measures were justified. It is important for doctors to remember that it is necessary to take all available precautions to prevent negative consequences.
Another sign is sufficient qualifications of the medical worker , i.e. criminal law says that only a specialist who has the necessary experience and qualifications for such actions can take justified risky actions.
Any actions of a doctor with a reasonable risk must comply with all regulatory requirements , both international acts ratified in Russia and Russian laws.
A situation of justified risk is also possible only if the medical organization meets certain requirements for equipment, qualified personnel, etc. Those. it must have conditions for achieving the goals set by the doctor for the treatment of a particular patient.
The ethical factor is also important. The doctor must be guided solely by considerations for the benefit of the patient, and not by personal or selfish interests. For example, no donations should be accepted for enrolling a patient in promising studies aimed at treating serious diseases or for the use of promising drugs or treatments. Risk also cannot be caused by adventurous or career considerations.
is also an important feature . With a justified risk, the moment of decision-making and specific actions are separated in time, since before implementing the decisions made, the doctor needs to take measures to prevent harm.
To avoid accusations that the risk is unreasonable, voluntary informed consent should be obtained from the patient. Voluntary informed consent can play a decisive role in a difficult situation for a doctor if the patient is thoroughly and clearly informed about the main aspects of the treatment being carried out. Judicial practice always follows the path of giving voluntary informed consent the status of a basic document when making decisions regarding the correctness or incorrectness of the behavior of physicians.
At the same time, it is important to remember the situation when the risk cannot initially be recognized as justified. This situation involves creating a threat to the lives of many people and, according to law enforcement practice, most often we are talking about more than two victims.
Very often, healthcare workers take risky actions without sufficient justification . Thus, in one of the Russian ophthalmological centers, when treating macular degeneration, doctors injected patients with the drug Avastin into the vitreous cavity of the eye. This drug is intended for the treatment of cancer and its use has led to temporary loss of vision in patients. The desire of doctors to take risky actions to help patients overcome a serious illness is understandable, and this circumstance allowed them to take risks. But in this case, the risk was not considered justified, since there were alternative treatments for a specific condition -. This is contrary to the principles of reasonable risk. Doctors were unable to convincingly justify this method of treatment - there was no data in the scientific literature, except for a single dissertation study, which cannot be considered sufficient. A typical mistake is that informed voluntary consent from patients to this type of treatment was not obtained. Of course, in this case we can hardly talk about a justified risk, and moreover, the actions of doctors contain signs of such a crime as the provision of services that do not meet safety requirements (Article 238 of the Criminal Code of the Russian Federation), which implies serious criminal liability.
Doctors often take unnecessary risks without having sufficient qualifications to do so. For example, a resident doctor in the dental department of an oncology dispensary admitted to his department a seriously ill patient with cancer of the intermediate bronchus with metastases to the lymph nodes of the mediastinum. He performed a tracheotomy and catheterization of the subclavian vein on the patient, and a day later he also performed a gastrostomy. The doctor refused the help of specialists of the relevant profile who were in this center. Subsequently, it turned out that there were no clinical indications for tracheotomy, that gastrostomy was also not clinically justified, moreover, it could not be performed due to complications from catheterization of the subclavian vein. As a result, the patient's health was seriously harmed. Of course, there can be no question of a justified risk; in addition to the fact that the doctor did not have sufficient qualifications (he did not specialize in abdominal surgery and resuscitation therapy), and sufficient qualifications are a prerequisite for a justified risk, he also acted with ethical violations, not in the interests of the patient. In this case, the patient's benefit did not exceed the risk to which he was exposed.
So, for a risk to be considered justified, it must meet an extensive list of requirements, deviation from any of them may entail legal liability. Justified risk as an independent circumstance excluding the criminality of an act is rarely encountered in judicial practice.
Much more often, doctors are found not guilty of committing a crime, according to another article of the Criminal Code of the Russian Federation “Extreme necessity”.
An urgent need. Differences from justified risk.
Medical workers often find themselves in a state of emergency. According to Article 39 of the Criminal Code of the Russian Federation, causing harm is not a crime in a state of extreme necessity, that is, to eliminate a danger that directly threatens a person, if this danger could not be eliminated by other means and the limits of extreme necessity were not exceeded.
This definition already contains a significant difference from justified risk. Justified risk is taken to achieve a socially useful result; if absolutely necessary, the main goal is to eliminate the threat to human life or health .
Another significant difference is that the time gap between the decision and its implementation is minimal or completely absent . In medicine, this means that the necessary assistance must be provided immediately . The doctor does not have the opportunity to contact other specialists in other medical organizations if they are not in close proximity.
If, with a justified risk, harm is only possible, then if absolutely necessary to eliminate the impending danger, harm is always caused . This may be harm to health, or harm may manifest itself in violation of procedures or standards of medical care or job descriptions. Therefore, for example, the use of an unregistered medicine or a new method of treatment in a life-threatening situation is not considered a violation of the law. But there is an important caveat - the harm caused must always be less than the harm prevented. If the harm is greater or equal, then we are talking about exceeding the limits of extreme necessity. In this case, criminal liability arises if the doctor acts intentionally; careless causing of harm in this case is not criminally punishable.
If a reasonable risk requires a certain qualification of a physician, then in case of emergency there are no special requirements for that doctor, which reflects a threat to life and health. The same applies to the requirements for a medical organization - there are no special requirements for providing emergency care in case of a threat to life, i.e. it may be at a different level than the one that allows for specific types of medical interventions.
Very often, such situations of extreme necessity arise when, in order to save the patient’s life, his health must nevertheless be harmed. For example, a patient had her uterus removed. The forensic medical examination came to the conclusion that all surgical interventions were carried out with the aim of preserving the life of the patient according to emergency indications, that is, removal of the uterus, causing serious harm to her health, was less harm than death, which would inevitably have occurred if the doctor had not carried out this operation. The court decision established that the doctor acted in a situation of extreme necessity, his actions were lawful and met all the requirements of extreme necessity.
But cases of exceeding the limits of extreme necessity are also very common. For example, while transporting an injured child to a district hospital, a doctor noticed that his condition was deteriorating. The doctor, deciding that the patient was dying, catheterized the subclavian artery and began infusion therapy right in the car. The child was taken to the hospital alive, but in serious condition. On the second day he died. An autopsy revealed signs of a closed chest injury with rib fractures, heart contusion, and hemorrhage into the tissue of the left lung. Signs of therapy pathology were identified. Experts pointed out that catheterization was performed incorrectly. And although the examination noted that catheterization was necessary in this situation, in an effort to save the child’s life, the doctor was unable to do it properly. Moreover, errors in therapy were precisely the cause of the child’s death, so she was prosecuted because the limits of extreme necessity were exceeded.
We can conclude that although in a situation of extreme necessity, to save the patient’s life, much fewer demands are placed on the doctor and medical organization than in the case of a justified risk, Article 39 of the Criminal Code of the Russian Federation is not an indulgence for any action, which must be taken into account in your practice.
Illegal orders. What to do?
There is another interesting aspect of criminal law - Article 42 of the Criminal Code of the Russian Federation says that it is not a crime to cause harm while executing an order or instruction that is mandatory for a subordinate. The orders given by management in the healthcare sector are not always legal. However, the execution of an illegal order will relieve the doctor from liability only under certain conditions .
Firstly, such an order must be given by the immediate supervisor to his subordinate
The one who executes the order must obey this manager in accordance with his functional responsibilities
Secondly, the person who gives the order, according to the job description, must have the right to give such orders. A physician is not obliged to obey the orders of a supervisor if the orders he gives are beyond the scope of his competence.
The order must be given in proper written form and contain all the necessary details. In this case, the document can be either paper or electronic. The exception is military formations - in military formations there is also an oral form of order.
The contractor must be familiar with this order and confirm this circumstance in writing.
And the last very important condition is that the order must not be obviously illegal. If a doctor realizes the illegality of an order or instruction, but nevertheless complied with it, he is responsible for his actions on a general basis, without being able to refer to the execution of a mandatory order.
Sometimes “informal” illegal orders of senior managers, to which ordinary doctors obey, bring doctors to the dock. For example, a sensational case when a young woman suffering from diabetes died in one of the Volga cities. The doctors at the clinic did not prescribe subsidized medications for her for five months. Later it turned out that the local Ministry of Health, which did not hold a procurement tender on time, sent unspoken instructions to district clinics not to write prescriptions for subsidized drugs. The officials of the Ministry of Health protected themselves, and the doctors who carried out this illegal order were brought to justice, since they could not help but realize the illegality of this order.
It is often difficult for doctors to come into conflict with management, they are afraid of the consequences, but a doctor must understand that by carrying out an obviously illegal order, he exposes himself to the risk of criminal liability. If a medical worker has any doubts about the legality of an order or instruction from a superior manager, he must request written confirmation. Managers are also responsible for issuing an illegal order or instruction.
As we can see, in law enforcement practice there are many circumstances and conditions under which the liability of a medical worker does not arise. Their knowledge will help doctors act correctly and minimize the risks of criminal liability.
The material was prepared within the framework of a grant from the President of the Russian Federation provided by the Presidential Grants Foundation (in accordance with Decree of the President of the Russian Federation dated January 30, 2019 No. 30 “On grants of the President of the Russian Federation provided for the development of civil society”)
What is an emergency?
A state of extreme necessity is a situation in which a person is objectively forced to cause some material damage to third parties in order to avoid even greater harm. The main feature of this is that material harm is always caused to those persons who are in no way involved in the dangerous situation that has arisen. The reason for taking action in conditions of extreme necessity may be the criminal actions of another person, natural disasters, or force majeure circumstances.
In conditions of extreme necessity, there must be a real threat, and the harm that is possible, and which the person is trying to eliminate, must be more significant than the harm that was caused by the person to someone else’s property. In this case, the person must be sure that the harm cannot be eliminated in any other way, that is, this is the only possible way to prevent dangerous consequences. Moreover, this concept is used mostly in civil law and concerns specifically material damage. In this case, there may be cases when harm can be caused to a person, and even death can be caused.
Damage caused to someone else's property by this person must be compensated to third parties if it exceeded the possible threat. An example of this action would include, for example, the demolition of a building to prevent the spread of fire during a fire, for example, a barn. That is, the fire could have spread through the barn to a residential building, causing significant material damage to its inhabitants, and causing harm to its residents, including the death of household members. Here, there is clearly less material damage (demolition of a barn) compared to the possibility of a fire in a residential building along with its inhabitants.
An example of extreme necessity in criminal law
An example of a state of extreme necessity is the behavior of a car driver in a situation where a precondition for an accident occurs (road traffic accident).
For example, a car drives in its own lane, without violating traffic rules, in a dense flow of traffic.
Oncoming traffic lanes are separated by a solid double line marking. There is no traffic in the oncoming lane.
A truck moving on the right in the same direction as a car abruptly changes lanes into the car's lane, cutting it off.
To prevent a collision with a truck cutting him off and the vehicle following behind, the driver of the car allows driving beyond the marking line. The driver of the car violated traffic rules regarding the location of the car on the road, allowing it to drive beyond the marking line, but by doing this he avoided an accident that could have occurred during his other actions.
Differences between extreme necessity and necessary defense
- If absolutely necessary, the threat can come from completely different sources, including natural disasters. With the necessary defense, the danger always comes from a person. Only a person can be the source of a criminal attack. And harm during the necessary defense can only be caused to a person.
- If absolutely necessary, harm is caused in material equivalent to third people who are not involved in the initial occurrence of the threat. With the necessary defense, harm is necessarily caused to the person who originally tried to commit a criminal offense.
- If absolutely necessary, the danger of a threat to human life is eliminated; if absolutely necessary, the possibility of causing significant damage to property is eliminated, and it is protected from attacks.
- If absolutely necessary, causing damage to the property of third parties did not imply the possibility of a different development of events, a different choice of actions. With the necessary defense, a person could objectively have a choice to run away or ask for help, but at the same time he chose to cause harm in order to save his own life.
- In cases of extreme necessity and necessary self-defense, the initiative to commit actions to cause harm comes from the person himself.
- Material damage caused in a state of extreme necessity can be compensated by the person who caused it in full or only in part, depending on the circumstances. With the necessary defense, the harm, of course, is not even partially compensated.
JurisprudenceComment
Acceptable conditions for causing harm
Understanding the nuances of a state of emergency, it is worth paying attention to the root causes that pose a threat.
The basis for causing harm when absolutely necessary is an individual who, through his actions, causes harm or threatens to cause harm to another person.
And also, the root causes include uncontrolled natural phenomena (earthquake, fire, flood, hurricane, etc.); animals that have attacked a person (wild or domestic); faulty car. The list of root causes is not closed.
Causing harm can be justified only on the condition that a person had no other way to save the most valuable good. Having discovered a threat, he must try to find a non-illegal way to prevent or eliminate such a threat. When such a path is not found, then measures are taken to the least extent that violate legally protected interests. In other words, actions are committed consciously, actions that constitute an offense, but are the least dangerous.
The question rightly arises of comparing the harm prevented and caused. They are compared by taking into account the social state of the interests being violated with those being protected.
For example, when comparing human life or health with property interests, preference will certainly be given to the first.
In circumstances where the protection of some property interests has become a consequence of the violation of other property interests, the assessment of harm is made according to the criterion of the cost perception of the harm prevented and caused.
It should be noted that exceeding the limits of extreme necessity entails criminal liability , according to Article 39 of the Criminal Code of the Russian Federation .
State
Harm to other legitimate interests means that harm is caused to the interests of others.
That is why the requirements imposed by law to qualify a state of emergency are much stricter in comparison with assessing the state of necessary defense.
To feel this line, one must understand that harm caused in a state of extreme necessity is inflicted only when a person has no other way to escape from danger.
An important condition for the legal qualification of a state of emergency is the amount of harm caused . This value cannot be equal to or greater than the amount of harm prevented.
Second commentary to Art. 39 of the Criminal Code of the Russian Federation
1. Extreme necessity (hereinafter referred to as CN) is a situation of a collision of two legally protected interests, when by causing harm to one of them, the harm to the other is avoided. At the same time, unlike the NO or AP, both interests - the one who suffers and the one who can suffer - are equally legitimate and protected interests.
2. CN must be characterized by a number of conditions indicating its legality. They are usually divided into conditions of legality related to the characteristics of the threatening danger, and conditions of legality related to protection from it.
3. Conditions of legality related to the characteristics of the imminent danger:
1) the danger may threaten various legally protected interests (the personality and rights of a given person or other persons, legally protected interests of society or the state);
2) danger can come from various sources (from natural forces, man-made forces, from animals, from accidents, incidents, emergencies of different nature and nature, etc.);
3) the danger is present (exists now, and not in the distant future, and has not yet disappeared or been eliminated);
4) danger is not a figment of the imagination, but exists in reality.
4. Conditions of legality relating to protection from imminent danger:
1) causing harm is the only means of eliminating the impending danger;
2) the harm caused is less than the harm prevented;
3) harm is caused to third parties;
4) CN limits must not be exceeded.
5. Signs of exceeding the limits are the following:
1) the harm caused clearly did not correspond to the nature and degree of the threatening danger and the circumstances of eliminating the harm, since the harm caused was equal to or more significant than the harm prevented;
2) the harm caused was intentional.
Key signs of acts
All actions on the part of the defending person are law enforcement. They become such if the subject has committed a violation. All permissible actions stipulated by law are always unilateral.
The important point is that if a violation is committed, there is no need to seek help from authorized employees. In this regard, the actions of the defender are not just law enforcement, but also operational. In addition to these points, every citizen must understand that any of his actions can be challenged in court.
What is the difference?
Outwardly, behavior delineated by the boundaries of the state of necessary defense and the state of extreme necessity look, at first glance, nothing less than an offense.
In fact, these actions are socially beneficial .
Let's consider the difference between necessary defense and extreme necessity.
In a state of necessary defense, harm is caused to a specific person - the source of the threat of attack or the one committing the attack itself. The harm caused to him in this case should be minimal.
Behavior in a state of necessary defense, as a rule, retains the ability to choose means to repel an attack.
In cases of extreme necessity, harm is caused to other (third) parties. Those. innocent persons. These are not only individuals, but also legal entities. The amount of harm caused to another person should not be equal to or greater than the harm prevented.
So, the difference between necessary defense and extreme necessity is that behavior in a state of extreme necessity involves choosing only those means to eliminate danger that cause the least harm. And with the necessary defense, comparison of the harm caused with the harm prevented is excluded.
Basic provisions of legislation on the issue
Article 37 of the Criminal Code of the Russian Federation states that exemption from liability for harm caused is provided for the attacker if the victim encroached on the life or health of the perpetrator. Thus, the actions of the accused person will be considered lawful and called necessary self-defense or extreme necessity.
In fact, we will talk about the circumstances in which the subject finds himself and when he has the right to use all necessary actions to protect himself. In addition to the detailed description in the article of the Criminal Code of the Russian Federation of self-defense, there are also other clauses that provide for the release of the responsible person from liability when state and public interests are endangered, and the circumstances cannot be eliminated in any other way. The essential point is that the defending citizen should not exceed the limits of extreme necessity. If this happened, he will be held criminally liable.
