Causing harm to a person who has committed a criminally punishable act during their apprehension is not considered a criminal offense
Article 32 of the Criminal Code of the Republic of Kazakhstan (CC RK) regulates the institution of necessary defense, granting citizens the right to protect themselves against socially dangerous encroachments. Below is a detailed legal commentary with analysis, practical examples, and references to related articles of other codes and regulatory resolutions.
📘 General Provisions
Necessary defense is the lawful protection of the individual and the rights of the defender or other persons, as well as legally protected interests of society and the state, from a socially dangerous encroachment, including by inflicting harm on the encroaching person. The right to necessary defense is equally granted to all individuals, regardless of their professional training, official position, or the possibility to avoid the attack or seek help from others or the state authorities.
⚖️ Conditions of Legality for Necessary Defense
- Presence of Encroachment: Defense is permitted only in the presence of a real and immediate socially dangerous encroachment.
- Protected Interests: Defense may be aimed at protecting the person, home, property, land plot, and other rights of the defender or other individuals, as well as the interests of society or the state.
- Proportionality of Defense: Causing harm to the encroaching person is not considered a criminal offense if the limits of necessary defense are not exceeded.
🚫 Exceeding the Limits of Necessary Defense
Exceeding the limits of necessary defense is recognized as a clear disproportion between the means of defense and the nature and degree of social danger of the encroachment, resulting in excessive harm that is not justified by the situation. Such excess entails criminal liability only in cases of intentional harm.
However, it is not considered exceeding the limits of necessary defense to cause harm to a person who is encroaching on a person’s life, or when repelling another encroachment associated with armed assault or violence dangerous to the life of the defender or others, or with an immediate threat of such violence, or with violent intrusion into a home or premises, or with arson of a home or premises. Also, if the defender, due to the suddenness of the encroachment, could not objectively assess the degree and nature of the danger, their actions are not considered excessive.
🧾 Judicial Practice
Example 1: In a case considered by Court No. 2 of Ust-Kamenogorsk, citizen P. was found guilty of exceeding the limits of necessary defense. During a quarrel with her cohabitant, she stabbed him with a knife, resulting in his death. The court determined that her actions did not correspond to the nature and degree of the social danger of the encroachment and qualified them as exceeding the limits of necessary defense.
Example 2: In Taraz, a mother of three children was convicted of killing her ex-husband, who attacked her in a state of intoxication. Although an independent examination confirmed it was self-defense, the court initially sentenced her to 8 years of imprisonment. Later, the appellate court reclassified the case under Article 112 of the CC RK — exceeding the limits of permissible defense — and ordered her release from custody.
📚 Related Regulatory Acts
· Article 66 of the CC RK: Provides the possibility of exemption from criminal liability for exceeding the limits of necessary defense if it was caused by fear, fright, or confusion due to the socially dangerous encroachment.
· Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 2: On the application of legislation on necessary defense.
🧠 Conclusion
The institution of necessary defense is an important element of criminal law, granting citizens the right to protect themselves from socially dangerous encroachments. However, when exercising this right, it is necessary to observe the legal limits to avoid criminal liability for exceeding the necessary defense. Judicial practice shows that assessing the actions of a defender requires a thorough analysis of all circumstances, including the nature and degree of danger of the encroachment, as well as the behavior of the defender themselves.
Attention!
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