The criminal law system uses such a term as necessary defense (Article 37 of the Criminal Code of the Russian Federation ). In practice, however, there are many problems with its application. Let us consider in more detail the concept of necessary defense .
Relevance of the issue
In practice, situations often arise when a person is forced to use force to protect himself or other people. In such cases, they talk about the necessary defense. Art. 37 of the Criminal Code of the Russian Federation excludes criminal acts when causing harm to a person who encroaches on the life or health of another person. At the same time, there is a reservation in the norm.
According to Art. 37 of the Criminal Code, the necessary defense must be expressed in actions that are appropriate to the danger and nature of the attack. In other words, it is not allowed to inflict unnecessary harm to the infringing subject. With the determination of the limits of the necessary defense , difficulties arise in practice. The fact is that a person who uses violence against a criminal is far from always able to adequately assess the situation.
It is necessary to know which person can be called dangerous for society , which measures can be applied to him, and which will be regarded as excessive and not corresponding to the nature of his behavior.
Key features
They follow from the meaning of Art. 37 of the Criminal Code.
The necessary defense , according to the norm, is actions:
- aimed at protecting the rights and personalities of the defender, other entities, as well as the interests of society and the state, excluding crime;
- lawful and socially useful.
Protection from encroachment is carried out by causing the attacker certain harm. Moreover, his interests are also protected by law in the established framework. The use of necessary defense is associated with the extreme nature of the defender's behavior and the need to determine its limits.
If the established limits are exceeded, the actions of the person will be regarded as intentional, clearly not in accordance with the nature and danger of the assault. Accordingly, liability measures will be applied to the defender.
The legitimacy of the necessary defense , therefore, takes place if the subject performs actions in circumstances that determine the grounds and conditions for protecting protected interests from encroachment and at the same time indicate the boundaries of this defense. The presence of certain limits of behavior prevents unnecessary damage to the attacker.
The state of necessary defense is expressed by a complex of signs, which characterize not only, in fact, defense, but also encroachment.
Grounds
Defense is generally understood as countering an attack. That is, it is a response, forced, derivative action aimed at suppressing illegal behavior. The attacker in such cases becomes the victim of his actions.
In the criminal law sense, defense against unlawful encroachment is legal, which acts as an objective basis for the application of protection. The legislation does not disclose the concept of dangerous assault, it is not defined which person can be called dangerous to society . However, from the analysis of the norms it clearly follows that defense is unacceptable against inaction / actions formally containing signs of crime, but in view of the insignificance of the threat they are not.
Conditions
For the implementation of protection requires a hazard . It is the commission of an unlawful act of a subject encroaching on the life, health, rights, property of others, violating the interests of the state, society or citizen, or the threat of its commission.
The socio-legal characteristic of the encroachment is limited to one sign - public danger. In this case, the criminal law does not require that an action / inaction be committed guilty, and the subject committing it was able to bear responsibility for the deed.
An infringement, which is considered a dangerous factor , can be described as an act enshrined in the Special Part of the Criminal Code. In this case, it will not matter whether the subject was brought to justice for his commission, released from punishment due to insanity, infancy (or for other reasons) or not. Such an understanding of the assault, which serves as the basis for the use of weapons and, consequently, harm during the detention of the person who committed the crime , is present in the Instructions for the conduct of law enforcement officers.
Source of danger
The necessary defense conditions are formed with the active action of the encroaching subject. If a citizen’s behavior is expressed in countering an attack, the encroachment expressed in the form of this attack is the initial action that necessitates an immediate and effective reaction.
Failure to act constitutes a threat to the interests protected by law. Inaction is not considered as an encroachment, an attempt to commit any action, such as murder. The necessary defense at the same time acts as a response to obvious active actions. The inaction of the mother, who does not feed the newborn, which is suppressed by the use of violence or threat to her, does not create the basis for the necessary defense, as some authors believe. In this case, there is coercion to action - the fulfillment of an obligation. This situation is resolved in accordance with the provisions of part 2 of article 40 of the Criminal Code, taking into account art. 39 of the Code.
Carelessness
With guilty acts, there is always intent. Careless acts can also be intentional and, in principle, constitute the basis for the necessary defense. For example , the driver drives at high speed and creates an emergency. However, in such situations, the danger of action is not always obvious.
In order to recognize the legitimacy of actions to prevent harm to health through negligence , the objective orientation and nature of the behavior with which the careless act begins, and which accompanies the careless act, the reality of the assault and its threat, are important. For example, the defense of the subject from the actions of a health worker who, through negligence, scored poison instead of a medicine and tries to make an injection, will be considered legitimate.
The variety of measures taken to prevent harm to health through negligence , the immediate possibility of defense depends largely on the intentions of the encroaching person, his perseverance in achieving the objective of objective danger, motives, etc.
Continued Acts
Some crimes begin in the form of an attack, and then continue as attacks, suggesting retaliatory violence to attempts to stop them. Accordingly, there are grounds for the necessary defense. An example of such a situation is the taking of hostages, premises, vehicles.
The conditions for retaliatory violence that arose at the time of the seizure of people or objects are maintained during their unlawful retention. In this case, there is a possibility of causing serious damage to the health of hostages or property damage to objects. The need for harm during the detention of the perpetrators of the crime at this stage of the encroachment is caused by the threat of its continuation and transformation into an attack on employees performing their duties related to law enforcement and the fight against crime.
It should be said that even the transfer of weapons that were used during the attack from the attacker to the defender cannot indicate the end of the illegal action.
A dangerous assault that takes the form of an attack causes an extreme situation. It can be described as an expectation of the realization of the possibility of using defense. This stage is considered the initial one. It indicates the moment and possibility of the start of defense. Moreover, they are determined for a specific time period.
The right to necessary defense
According to part 3 of article 37 of the Criminal Code, all persons equally possess it, regardless of whether they have professional or other special training, as well as their official position.
The right to defense can be used by both Russian and foreign citizens, and persons without citizenship. At the same time, for citizens of the Russian Federation, the necessary defense acts not only as a natural legal opportunity, but also as a guarantee of the implementation of the provisions of the Constitution on the inviolability of the person, housing, property. Its consolidation in the legislation is aimed at creating conditions for individuals to fulfill their constitutional duty to protect property rights, public and state interests.
For certain categories, the necessary defense acts not only as a right, but also as an obligation. Its failure entails disciplinary, criminal or other liability. Citizens of the Russian Federation who exercise the relevant functions or occupy a certain official position, not only have the right, but also must protect the interests protected by law, as this is regulated by special legal acts that determine their authority and status in a specific field of professional activity. In particular, the police officer must maintain order, suppress any actions that violate it; sentry is obliged to protect a military object from attacks, etc.
Causing harm
The defender has the right to take active measures to protect against dangerous encroachment. They, among other things, suggest harm to the attacker. The implementation of this measure does not depend on the ability to avoid encroachment or turn to other persons or structures for help.
Damage can only be caused to the attacker. If the assault is committed by several persons, the defender may apply such measures to any of them that are determined by the nature and danger of the actions of the group as a whole. Damage to third parties not participating in the assault cannot be considered an act of necessary defense. In these situations, the provisions of the law governing the state of emergency may apply.
Subjective basis
It is a special purpose. A person can be driven by a sense of self-preservation, intolerance of illegal actions, moral duty, the desire to help the victim, the desire to show nobility, empathy with the victim, etc.
The goal is of great importance in determining the moral and social nature of behavior caused by a socially dangerous assault. Given this fact, the highest judicial authorities connect the legality of actions with the presence of the defender. Actions may be taken to:
- Self-defense.
- Reflection of the attack.
- Exemption from the attacker.
- Suppression of antisocial behavior.
These subjective signs — the presence of a special motive and purpose — make it possible to distinguish the necessary defense from other acts that have an external resemblance to it, but which are not aimed at repelling the attack, but at causing damage out of envy, revenge, etc.
Provocation
As follows from the above information, defense and harm resulting from it should be caused by the need to stop the attack and protect the interests protected by law from danger. With this in mind, if a person commits an act provoking an attack, then his response cannot be considered a necessary defense.
The actions of the subject to reflect the danger are not legitimate if he himself called it. In such situations, liability for harm will come according to the general rules. The person who provoked the attack did not pursue socially useful goals, but acted out of negative motives.
Untimely defense
Crippling an attacker requires timely action by the defenders. Damage can be caused only after the beginning and until the end of the assault, that is, in real danger.
The necessary defense can be called timely only if, for example, an attacker takes possession of values, violates order, strikes a citizen, tries to pick up a weapon, open a door, penetrate someone else’s housing, etc. In such cases, the attack is considered to have begun, and accordingly, start and defense.
In determining the timeliness of suppressing actions, the moment of completion of the attack is of no small importance. It is associated with the implementation of objective signs of an unlawful action and coincides for actions with:
- formal composition - with the moment of commission;
- material composition - with causing harm;
- continued / continuing composition - with the moment of interruption or completion of illegal actions.
With the end of an illegal or equivalent antisocial behavioral act, the need for damage to the attacker to suppress his actions disappears.
Belated or premature necessary defense is excluded. Due to the fact that the actions of the defender are aimed at suppressing / preventing an already existing encroachment, in time they cannot last longer than unlawful behavior.
Exceeding Defense
It takes place when committing intentional actions that clearly do not correspond to the level of danger and the nature of the unlawful actions of the attacker. An important nuance should be taken into account. Exceeding the limit of defense can be considered not just any, but only the obvious, obvious inadequacy of the defense to the encroachment.
In an objective sense, the manifestation of a discrepancy is expressed primarily in causing the attacker excessive harm. Any defense "with a margin" or "overstatement" is socially dangerous. It objectively goes beyond the bounds of necessity, which is determined by the goal of suppressing an encroachment.
The more dangerous the attacker's actions, the more reason to apply relatively more dangerous and, accordingly, more effective measures. Defense is always recognized as necessary if the defender did not have other means of protection, including special equipment and weapons, and if only their use allowed in the specific situation to stop illegal actions.
Statutory regulations
When repelling a dangerous assault, the use of weapons or other special means is an extreme measure. It may be necessary or the only one for protection against entities that actually threaten the health or life of the defender himself or those around him.
The rules governing the use of special means, physical force and weapons by law enforcement officials in the performance of official duties, prevent the infliction of excessive harm to entities whose actions are the basis for the necessary defense. In ordinary situations, the defender, of course, is obliged to warn the attacker of the intention to use certain measures and provide him with enough time to fulfill the requirements.
However, in situations where procrastination poses a direct threat to people's health / life and when a warning is clearly impossible or inappropriate, a person has the right not to look back at the rules, not to strictly follow them. Otherwise, the defender risks losing all opportunity to stop the attack and save the victim.
Use of weapons
It is allowed solely to suppress the aggression of the attacker.
If a citizen used a pistol for self-defense in the presence of objective grounds for that, he should not be condemned. If the limits of the suppression of the infringement have not been violated, any conviction of the defending person should be considered as a manifestation of illegality. This situation is the result of a misinterpretation of the list of entities entitled to self-defense. Moreover, such practice entails indecision and use of service weapons in appropriate cases by law enforcement officials, although current legislation allows their use.
However, hasty actions can lead to unjustified victims. For example, a citizen, lawfully using a gun for self-defense or to protect against encroachment of other persons, violates the established rules: he does this in a public place if there is a danger of harm to outsiders. In addition, it is unacceptable to use such means of protection that pose an increased danger to people and leave no chance of survival. It is, in particular, anti-personnel / anti-tank grenades, machine guns, machine guns, flamethrowers, etc.
Currently, legislation gives citizens the right to carry out armed self-defense. Accordingly, in repelling aggression, one cannot exclude the fatal outcome associated with the use of weapons. However, the death of an attacker is permissible only as an exception.
Current legislation establishes liability for exceeding the limits of defense in the event of killing or causing grievous bodily harm. Such actions are regarded as intentional, but belong to the category of acts of minor gravity.