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BASICS OF SAFE LIFE
Legal and psychological foundations of self-defense. Basics of safe life
Directory / Basics of safe life A person throughout his life gets into various extreme situations, including those related to the need to protect the life and health of others or his own property, to assist law enforcement agencies in ensuring law and order. In cases stipulated by law, it is allowed to resort to actions that prevent various kinds of offenses that pose a danger to the life of a person or other persons, cause physical, property or other harm. Such actions are completely lawful and do not entail criminal, administrative or civil liability. However, it must be remembered that only necessary defense and extreme necessity are recognized by the Criminal Code of the Russian Federation as a circumstance excluding liability for causing harm. In this regard, in order to avoid any undesirable legal consequences, each person must know the conditions and procedure for actions not punishable by law in a state of necessary defense, since it is possible that he will have to face such situations. Let's consider what is necessary defense. As already emphasized, protection from unlawful encroachment is the natural right of every person. This is quite clearly stated in the Constitution of the Russian Federation: "Everyone has the right to defend their rights and freedoms by all means not prohibited by law." To characterize these methods, the concept of "necessary defense" is introduced in criminal law. In part 1 of Art. 37 of the Criminal Code of the Russian Federation (Criminal Code of the Russian Federation) states that "it is not a crime to cause harm to an offending person in a state of necessary defense, that is, when protecting the personality and rights of the defending person or other persons, the interests of society and the state protected by law from a socially dangerous encroachment, if this the attack was accompanied by violence dangerous to the life of the defender or another person, or with the immediate threat of such violence. Part 3 of the same article states that “all persons are equally entitled to necessary defense, regardless of their professional or other special training and official position. This right belongs to a person, regardless of the possibility of avoiding a socially dangerous encroachment or seeking help from others persons or authorities." And further (Part 21 was introduced by Federal Law No. 8-FZ of December 2003, 162): "The actions of the defending person do not exceed the limits of necessary defense if this person, due to the unexpectedness of the encroachment, could not objectively assess the degree and nature of the danger of the attack." According to the Criminal Code of the Russian Federation, intentional actions that clearly do not correspond to the nature and degree of public danger of encroachment are recognized as exceeding the limits of necessary defense. Thus, in accordance with the Criminal Code of the Russian Federation necessary defense - this is a legitimate defense against a socially dangerous encroachment by causing harm to the offender. However, in order for the harm caused to the attacker to be recognized as lawful, it must meet a number of conditions. They are schematically shown in Figure 4. As can be seen from the presented scheme, the conditions for the legitimacy of causing harm in a state of necessary defense can relate to encroachment and protection. Let's consider them in more detail. Causing harm in a state of necessary defense, pertaining to abuse valid if it meets the following conditions. 1. The offense must be socially dangerous. Such is an infringement that causes or is capable of causing harm to interests protected by criminal law, i.e., the individual, society and the state. It does not, however, have to be criminal. Often there are such infringements, which, according to formal legal grounds, are not criminally punishable, but can pose a serious danger to protected interests. For example, an encroachment on life and health by the insane, as well as persons who have not reached the age from which criminal liability arises. Necessary defense against such encroachments is also permissible. Another thing is that in these cases a person exercising his right to the necessary defense, based on moral considerations, should be especially attentive to the limits of its implementation, strive to cause the least harm in such a situation or try to evade encroachments. A person who takes all measures to evade the encroachment of an insane person (runs away, calls for help) deserves moral approval, not condemnation, since such behavior is not caused by cowardice, but by humane considerations and utmost discretion.
The question of the possibility of necessary defense against the wrong actions of officials deserves special consideration. Criminal law allows the necessary defense against any socially dangerous actions of officials, i.e., those that cause significant harm to interests protected by criminal law or are capable of causing such harm. Necessary defense is inadmissible against actions that are themselves committed in a state of necessary defense. In all cases, the necessary defense cannot be invoked by the one who, by his unlawful action, created a situation in which those around him were forced to use any violent actions against him. 2. The next condition is existence of an attack. To recognize the existence of this condition, it is necessary to determine the initial and final moments of the encroachment. Starting point of attack recognized as the moment of the most socially dangerous encroachment, and the presence of a real threat of encroachment. A person has the right to defend himself according to the rules of necessary defense already when it is clear from the prevailing situation that the encroachment can be immediately carried out, that is, when there is an immediate threat of socially dangerous actions. At the same time, the necessary defense against encroachments that are expected in the future is unacceptable. The end moment of the attack associated with its end. The attack is considered completed if the threat of harm to the defender has passed. Infliction of harm in this case should be considered as infliction of reprisals, an act of revenge, etc. However, it should be noted here that judicial practice proceeds from the fact that a state of necessary defense can take place even after the end of the act of encroachment, if, due to certain circumstances of the case, the defender was not the end point is clear. The transfer of weapons or other items used in the attack from the attacker to the defender cannot in itself indicate the end of the attack. 3. Another condition for the legitimacy of the necessary defense related to the encroachment is the reality of the attack. An infringement that exists objectively, in reality, and not in the imagination, is considered valid. To recognize an infringement as existing in reality means to establish that it is objectively capable of causing significant harm to law-protected interests. However, in judicial practice there are cases of causing harm in a state of so-called imaginary defense, i.e., defense against an imaginary, apparent, but in reality non-existent encroachment. The legal consequences of imaginary defense are determined by general actual error rules: 1) if a factual error excludes intent and negligence, then criminal liability for actions committed in a state of imaginary defense is also eliminated, since the person not only does not realize, but in the current situation should not and cannot be aware that there is no socially dangerous encroachment; 2) if, during an imaginary defense, the person causing harm to the imaginary encroaching, did not realize that in reality there was no encroachment, being in good faith mistaken in assessing the current situation, but due to the circumstances of the case, he should and could be aware of this, liability for the harm caused comes as for a negligent crime. It should be borne in mind that imaginary defense and necessary defense imply certain mandatory conditions:
If a person completely unreasonably assumed that he was being attacked, when neither the behavior of the victim, nor the prevailing situation gave him any real reason to fear an attack, he is subject to liability on general grounds as for an intentional crime. In these cases, the actions of the person are not connected with an imaginary defense, and the harm to the victim is caused due to the excessive, unjustified suspicion of the perpetrator. The conditions for the legitimacy of causing harm in a state of necessary defense, pertaining to protection are as follows: 1. If in a state of necessary defense the rights and interests of not only the defender himself, but also other persons, society and the state are protected. 2. If harm can be caused only to the offender, but not to third parties. According to the law, the necessary defense is allowed only in relation to the offenders themselves. If there are several infringers, the harm caused to any of them, regardless of the degree of his participation in the encroachment, is recognized as legitimate. However, if, while repelling even a real encroachment, a person caused harm not to the attacker, but to one of the outsiders, he bears responsibility for this. Depending on the circumstances, his actions are qualified as negligent, and sometimes as deliberate infliction of harm. It should be emphasized that the law, providing for the right to the necessary defense against socially dangerous encroachments by causing harm to the offender, does not provide for restrictions regarding the nature of the harm. Therefore, with the necessary defense, the most diverse damage can be caused to the offender: life, health, freedom, honor, dignity, property, etc. In legal practice, there are cases when, for example, the defender takes away and breaks the gun with which the offender tried to commit murder, or kills the dog the owner set on him. This also includes the fact that a car was damaged by a traffic police officer when its owner does not stop on the orders of the inspector. Moreover, according to the Civil Code of the Russian Federation, property damage caused in a state of protection from a socially dangerous encroachment is not subject to compensation, if the limits of necessary defense were not exceeded. 3. Another condition for necessary defense in the context of defense is not exceeding the limits of necessary defense. Such excess is recognized as intentional actions that clearly do not correspond to the nature and degree of public danger of the encroachment. It must be emphasized that we are not talking about everyone, but about the obvious, that is, excessive inconsistency of the means of protection with the nature and danger of the encroachment. A simple, i.e., not obvious (not excessive) discrepancy does not mean exceeding the necessary defense, since the criminal law allows, with the necessary defense, to cause more harm than that which threatens the protected legally protected interest. Such compliance or non-compliance is determined primarily by comparing the importance of the protected interests and what is harmed. When deciding on the presence or absence of signs of exceeding the limits of necessary defense, the conformity or inconsistency of the means of defense and attack, the nature of the danger threatening the defender, his strength and ability to repel the encroachment, as well as all other circumstances that could affect the real balance of forces of the encroaching and defended (the number of encroachers and defenders, their age, the presence of weapons, the place and time of the encroachment, etc.). When an offense is committed by a group of persons, the defender has the right to apply to any of the attackers such protective measures that are determined by the degree of danger and the nature of the actions of the entire group. Moreover, neither the number of attackers and defenders, nor the presence of weapons in one or another in itself is of decisive importance. To determine whether the limits of necessary defense were exceeded, the mental state of the defender should also be taken into account. It must be borne in mind that in a state of emotional excitement caused by an encroachment, it is not always possible to accurately weigh the nature of the danger and choose proportionate means of protection. For some categories of citizens, the necessary defense is their legal duty. So, the official duties of police officers and a number of other power structures include the suppression of criminal encroachments, however, the rules for applying the necessary defense for them are the same as for all citizens. Causing harm in conditions of exceeding the limits of necessary defense significantly reduces the social danger of a crime committed by the defender. Therefore, the Criminal Code of the Russian Federation provides for mitigation of punishment for those who have committed such crimes. Speaking about the human right to necessary defense, I would like to emphasize that this right serves the interests of preventing and suppressing crime. However, as a rule, citizens rarely resort to it, fearing criminal liability for exceeding the limits of necessary defense. This is mainly due to legal illiteracy and ignorance of their rights. As already noted, in the case of necessary defense, it is lawful to harm only a certain person who commits a socially dangerous offense. However, there is a circumstance in the presence of which it is lawful to cause harm to unauthorized persons. Such a circumstance, according to the law, is extreme necessity; it can be defined as the elimination of a danger that threatens the rights and interests of an individual, society and the state by causing harm to any of the outside individuals or legal entities. Part 1 Art. 39 of the Criminal Code of the Russian Federation states: “It is not a crime to cause harm to interests protected by criminal law in a state of extreme necessity, that is, to eliminate a danger that directly threatens the person and rights of this person or other persons, the legally protected interests of society or the state, if this danger could not be eliminated by other means, without exceeding the limits of emergency". As in the case of necessary defense, to recognize the existence of a state of emergency requires the fulfillment of a number of conditions related to the nature of the danger to be eliminated and to the actions to eliminate it. Schematically, this can be represented as follows (Fig. 5). The conditions for the legitimacy of causing harm in a state of emergency, relating to the creation of danger, are as follows. 1. The danger for which actions are taken in a state of emergency can be caused by human behavior, the manifestation of the elemental forces of nature, the attack of animals and other circumstances (fires, train wrecks, accidents on pipelines, malfunction of mechanisms, etc.), and not only socially dangerous actions of individuals, as is the case with the necessary defense.
So, for example, a state of extreme need for defense occurs in case of a fire near vital facilities, the causes of which may be deliberate arson or careless handling of fire by individuals, a short circuit in the electrical wiring (mechanism malfunction), a lightning strike (the action of the elemental forces of nature) etc. In order to prevent the spread of fire to these objects, firefighters and other people, acting in a state of emergency, dismantle the building located between the fire and these objects. Although intentional damage to or destruction of a building constitutes a crime, persons involved in extinguishing a fire should not be held liable for this if they have complied with the other necessary conditions for the legality of their actions. The destruction of an attacking animal can be committed in a state of emergency, if the attack is a wild animal or a domestic animal acting without human intervention. In those cases when, for example, the dog is set on by the owner, then he acts as the perpetrator of the socially dangerous act, in connection with which the destruction of the animal is carried out in the order of necessary defense, i.e., the person who commits the socially dangerous encroachment suffers property damage by destroying the dog. The same state of necessary defense also occurs when an attacking animal is destroyed, which has broken free due to the negligence of the owner, keeper, zoo administration, etc. Sources of danger in some cases can be pathological physiological processes occurring in the human body, dangerous to his life and health (illness, hunger, extreme need, etc.). In legal practice, there are cases when people who got lost in the tundra or taiga and were left without food were forced to open the warehouses of geological parties or hunters and seize part of the food so as not to die of hunger. Such situations are considered by the court as a state of emergency. A similar state may arise in the process of exercising the right to necessary defense or the detention of a criminal. For example, criminals have taken hostages and are holding them in premises owned by a person or entity. In order to prevent a socially dangerous encroachment, release hostages and detain criminals, law enforcement officers or private security guards enter the premises, damaging windows, doors, walls, floors or ceilings, depending on the situation. Here, property damage is caused not to the encroaching, but to the owner of the premises. This means that such damage cannot be considered as caused in a state of necessary defense. It is subject to the rules relating to infliction of harm in a state of emergency. At the same time, the harm caused in this situation by the perpetrators themselves is fully within the scope of necessary defense. Another example can be given when to stop a vehicle driven by a violator of traffic rules who has not complied with the requirement of a police officer to stop, the traffic police inspector has the right to use firearms or special means. In this case, the vehicle may be damaged, sometimes very significant. The actions of a police officer in relation to the offender are carried out in a state of necessary defense. As a necessary defense, damage to the car should also be assessed if it belongs to the offender himself. However, a different approach is required to assess the damage to a vehicle that does not belong to the offender, but to another legal or natural person. This situation arises if the offender uses someone else's car temporarily, for example, on a rental basis, or works as a driver in a car owned by a state, public or private organization, or stole this vehicle. In such cases, damage to the vehicle is not covered by the concept of "necessary defense", since the damage is not caused to the offender, but to the owner. The damage must be considered taking into account the conditions of the legitimacy of causing harm in a state of emergency. 2. The condition for the legitimacy of causing harm, related to the creation of danger, is that the danger must be immediate, i.e. one that has already been caused or is being caused, if measures are not taken to eliminate it, damage. Actions with causing harm to eliminate a danger that has not arisen or has already passed are unacceptable. In the previously given examples, it is unacceptable to cause harm before the start of a fire or after it ends. 3. The third condition for the legitimacy of this kind of harm is that the danger must be real i.e. really existing, not imaginary. If harm is committed by a person in a state of imaginary extreme danger, the person who caused the harm bears criminal or administrative liability for it, depending on the established form of his guilt. The conditions for the legitimacy of causing harm in a state of emergency, relating to actions to eliminate the hazard, the following appear. 1. The extraordinary nature of the action to eliminate the danger. Unlike cases of necessary defense, in circumstances of extreme necessity, the means to eliminate the danger are very limited. If it is possible to eliminate it by other means, i.e. without causing harm, then there is no emergency and the damage is recognized as unlawful and entails appropriate criminal or administrative liability. Only in cases where causing harm is the only way to prevent danger or avoid it, can we speak of an emergency and forced, i.e. not criminal, lawful infliction of damage that does not entail criminal or administrative liability. 2. Harm is caused to third parties, i.e. third parties (physical or legal), not those who created the danger, since the infliction of damage to the person who created the danger is carried out in a state of necessary defense. In the fire example above, it can be seen that if a structure is demolished between the source of the fire and an important object, the damage is not caused to the fire maker, but to the owner of the building, who may not have anything to do with the incident. The same applies to damage to the property of third parties when releasing hostages, stopping a vehicle with an intruder, etc. It is possible to cause harm to third parties and when attacked by animals, including wild ones. So, for example, hunting for the Ussuri tiger is prohibited, however, protection from its attack is carried out in a state of emergency, therefore, defending itself from such an attack should be relieved of liability for violating the rules of hunting. It should also be borne in mind that when animals attack, the danger is not always eliminated only by destroying them. Sometimes such attacks force people to harm outsiders, such as their property, which is used to repel or prevent an attack, in order to eliminate the danger. 3. No excess of emergency limits. Part 2 Art. 39 of the Criminal Code of the Russian Federation states: “Exceeding the limits of extreme necessity is the infliction of harm that clearly does not correspond to the nature and degree of the threatening danger and the circumstances under which the danger was eliminated, when the damage equal to or more significant was caused to the indicated interests than the averted one. Such an excess entails a criminal liability only in cases of intentional infliction of harm. The harm caused in a state of extreme necessity must necessarily be less significant than the one prevented, and not equal, and even less so. This rule follows from the previous condition, and its essence is that, since harm is caused to unauthorized persons, it is unacceptable that they suffer more damage than that which could be caused by the danger that has arisen, or even equal to this possible damage. The lesser of two evils must be chosen. In the examples previously given, this rule can be seen quite clearly: damage to the building to prevent more damage that would be caused by the further spread of the fire; elimination of an animal or damage to property in order to avoid injury or death of people, etc. Unlike necessary defense, where the harm caused to the offending person is not subject to compensation, in case of emergency, according to the Civil Code of the Russian Federation, it must be compensated either by the person who caused it, or by the person in whose interests they acted to eliminate the danger that threatened him. However, the court has the right, under certain circumstances, to completely or partially exempt these persons from compensation for harm. Thus, acting in extreme situations, a person has the right to self-defense to protect honor, dignity and physical integrity. However, at the same time, he must clearly and clearly know the conditions, procedure and limits of his actions both in a state of necessary defense and emergency, which will help him avoid misunderstandings with the law. At the same time, it must be remembered that knowledge of the laws alone is not enough to protect oneself from possible dangers. Equally important in extreme situations is the knowledge of modern means of protection and the ability to use them correctly and legally.
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