In accordance with applicable law, an action that is formally, although it falls under the signs provided for in the Special Part of the Criminal Code, is not recognized as a crime, but committed when absolutely necessary. We are talking about situations where, to eliminate the danger that threatens the rights and the identity of the perpetrator, the interests of the state and society, the subject commits an unlawful action. When qualifying a person’s behavior, it is necessary to establish the fact that the danger in the given circumstances could not be eliminated by other means. An important condition is also not to exceed the limits of extreme necessity (Article 39 of the Criminal Code of the Russian Federation).
Relevance of the issue
Art. 39 of the Criminal Code of the Russian Federation on extreme necessity apply in a clash of two interests protected by law, or two obligations, the implementation of which is simultaneously impossible. Simply put, of the two evils you need to choose the lesser, sacrifice less significant interests.
The provisions of Art. 39 of the Criminal Code of the Russian Federation on extreme necessity, for example, are used in cases where it is necessary to prevent a breakthrough of a dam located near the city, crushed stone, sand, and other materials intended for other construction are used.
Key criteria
Not all actions can be considered an absolute necessity. The recognition conditions are as follows:
- There is a danger to the interests protected by law. It can come from natural forces, faulty cars, animals, humans. If the subject himself creates a threat and eliminates it himself, he will be held liable in the event of a provocation in order to cause damage to other protected interests.
- There is a risk of harm in the near future. If danger can occur in the future, then only preventive measures are possible that do not involve causing harm (purchase of a fire extinguisher to prevent possible fire). The past danger cannot be the basis for qualifying actions under Art. 39 of the Criminal Code. Extreme need is possible when the protected good has not yet been lost.
- It is impossible to eliminate the danger by other means, except for causing damage to relations under the protection of the criminal law. If other measures are possible, the subject will be liable for the consequences in accordance with the law.
Another condition is that the limits of legitimacy of emergency must not be exceeded. This means that the damage caused should be less than prevented. As an act of extreme necessity, harm equal to the severity of the danger averted cannot be recognized. In this regard, for example, the salvation of one’s own life due to the death of another person cannot be qualified under Art. 39 of the Criminal Code.
Special cases
The extreme necessity may be recognized as causing death to one person to save the lives of many.
So, for example, an electric train driver noticed a passenger car crossing a crossing while driving. The car appeared unexpectedly. The speed of the train was 70 km / h. The driver decided not to apply emergency braking, as it could provoke a train crash and the death of passengers. Therefore, he applied normal braking. As a result of the train hitting the car, the driver died and the passenger was injured. During the technical examination, the correctness of the actions of the driver was proved. The court recognized that the perpetrator acted in an emergency.
The wrongfulness of action
In article 39 of the Criminal Code of the Russian Federation there is an indication of the mandatory observance of the limits of extreme necessity. Otherwise, the actions of the person will be recognized as criminally punishable.
The limits of emergency are deemed to be exceeded if the subject has caused harm that clearly does not correspond to the degree and nature of the danger, as well as to the circumstances in which this threat was eliminated, i.e. the damage was equal or more substantial than prevented (part 2 of article 39 of the Criminal Code of the Russian Federation) . In such cases, the perpetrator faces criminal penalties if the harm was done intentionally.
Extreme need is a state of threat of harm to protected interests, in which the elimination of harm is possible only by causing damage to interests of less importance from the point of view of criminal law. It arises as a result of the actions of man or nature. In extreme cases, thus, a clash of legally protected interests arises. To prevent damage to one of them, it becomes necessary to harm another interest.
So, for example, to prevent the spread of fire along the street in the village, the head of the village council decided to dismantle two houses on the fire despite objections from the owners. As a result, the flame was stopped and 50 houses saved.
The actions of the head of the village council formally fall under Art. 167 of the Criminal Code (intentional destruction of property). But in fact, they are not criminal, because they were committed in emergency situations. It was not possible to save the housing of other citizens by other means.
Important point
It should be noted that participation in eliminating the threat to interests protected by law is a citizen's right, but not his duty. Although the need to prevent greater harm can be considered a moral obligation of the person. The choice of participation or non-participation in eliminating the threat depends, in fact, on the internal moral and ethical foundations.
For some citizens, danger prevention is a legal duty in the service. Such a subject cannot evade participation in the elimination of danger under any pretext. For example, a firefighter does not have the right to refuse to extinguish a fire due to the fact that he may cause damage to his health.
Hazard
This is one of the essential conditions for recognizing the actions of a person as legitimate in a state of emergency. A statement of the fact of the presence of danger will depend on the characteristics of its source, the transience and suddenness of occurrence. That is why it is necessary to talk about the presence of a threat not only when it has already appeared, but also in the case of its inevitability and complexity or the impossibility of eliminating it.
Citizens of Russia, foreigners and stateless persons can participate in the elimination of danger when absolutely necessary.
Additionally
In practice, difficulties often arise in establishing the correlation of the value of the damage caused and the danger averted. The problems are caused, first of all, by the fact that the damage eliminated and caused belong to different, often difficult to comparable areas of life and human benefits. In this regard, issues of compliance with the damage should be decided in each case individually.
The difference between necessary defense and emergency
Not only interests protected by law, but also human health and life may be at risk. In the first case, there is an emergency situation. In the second situation, they talk about the state of necessary defense. In this case, harm is done to human health and life to prevent harm that it can cause to other people or valuable property.
The state of necessary defense arises in different situations. For example, a police officer neutralizes a criminal who has taken hostages.
As in the case of extreme necessity, the limits of necessary defense must not be exceeded. This means that the harm to the health of another person must be justified. In other words, the actions of a police officer will be deemed unlawful if he uses firearms against a criminal who stands still with his hands up.