Commentary on Article 102. Murder Committed in Excess of the Limits of Necessary Defence of the Criminal Code of the Republic of Kazakhstan
1. Murder committed in excess of the limits of necessary defence shall be punishable by restriction of liberty for a term of up to two years or deprivation of liberty for the same term.
The public danger of this crime is expressed in the violation of the absolute human right to life, which belongs to every person from birth.
Necessary defence is an inalienable constitutional right of everyone to protection against socially dangerous attacks on life, regardless of their professional or other activities. Pursuant to paragraph 1 of Article 13 of the Constitution, everyone has the right to recognition of their legal personality and is entitled to protect their rights and freedoms by all means not contrary to the law, including necessary defence. As a result of exceeding the limits of necessary defence, harm is caused to the socially significant values of the defending person and, first and foremost, to their life.
The object of the crime is the life of the person committing the attack.
The objective element is characterised by murder committed in excess of the limits of necessary defence.
All persons equally have the right to necessary defence, regardless of their professional or other special training and official position, sex, age, or other circumstances. A person has the right to necessary defence regardless of which legally protected object the socially dangerous attack is directed against, whether that object belongs personally to the defending person or to other persons, and also regardless of the possibility of avoiding the socially dangerous attack or seeking assistance from other persons or state authorities.
In order to recognise a person as having been in a state of necessary defence, it must be established that a socially dangerous attack took place and that this attack served as the basis for the person's actions involving the infliction of death or bodily harm upon the attacker, for the purpose of preventing or repelling that attack.
According to paragraph 2 of clause 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 11 May 2007, “On the Application of Legislation on Necessary Defence”, a socially dangerous attack is recognised as an attack directed at causing harm to the socially significant values of the defending person or other persons, or to the interests of society and the State protected by law. Accordingly, the objects of protection in necessary defence may include human rights, namely life, health, sexual inviolability, honour and dignity, property, housing, land plots and other rights belonging both to the defending person and to other persons, as well as the interests of society and the State.
Necessary defence is permissible not only when harm has already been caused by the attacker's intentional or negligent actions, but also when the infliction of harm has not yet begun, but a real threat of its infliction has been created (for example, preparatory actions have been taken to carry out the attack, etc.), or when the person committing the attack has not yet completed the unlawful actions (continues beating the victim, has not yet managed to remove stolen property from the apartment), as well as when the defence follows immediately after an act of attack that has actually been completed, but, in the circumstances of the case, the moment of its completion was not clear to the defending person. When assessing these situations, it is necessary to proceed from how obvious the moments of the beginning and completion of the attack were to the accused and whether, in the specific circumstances that had developed, they could correctly assess the situation.
A person who causes harm to another person in connection with the latter's commission of actions that formally contain the elements of a criminal offence but, due to their insignificance, do not constitute a public danger cannot be recognised as having been in a state of necessary defence. Nor can a person who, through their own behaviour, deliberately provoked an attack in order subsequently to use that situation as a pretext for committing unlawful actions (for example, starting a fight, carrying out a reprisal, committing an act of revenge, etc.) be recognised as having been in a state of necessary defence.
Taking the life of an attacker while protecting the person, the rights of the defending person or other persons, or the legally protected interests of society or the State against a socially dangerous attack, that is, when committed in a state of necessary defence, is not a crime by virtue of Article 32 of the Criminal Code, provided that the limits of necessary defence have not been exceeded.
According to Part 3 of Article 32 of the Criminal Code, exceeding the limits of necessary defence is recognised as an obvious discrepancy between the defence and the nature and degree of public danger of the attack, as a result of which the attacker is caused harm that is clearly excessive and not necessitated by the circumstances. Such excess entails criminal liability only in cases of intentional infliction of harm.
In order to correctly establish the limits of necessary defence and determine whether the attack and the defence against it correspond (or do not correspond) to each other, it is necessary to establish and assess in each case: the nature of the attack, its public danger, the intensity of the attack, the correspondence (or lack thereof) between the degree of defence and the degree of the attack, the nature of the harm caused to the attacker, the obviousness (evident nature) of the excessive harm caused, the circumstances giving rise (or not giving rise) to the necessity of causing such harm, and other relevant factors.
Murder committed in excess of the limits of necessary defence does not exclude criminal liability but mitigates it on the grounds that, in committing this crime, the person seeks to protect themselves or other persons, or the legally protected interests of society or the State, against a criminal attack. The perpetrator often acts in a state of extreme nervous tension and intense emotional agitation and sometimes is in a state of fright, as a result of which they are deprived of the ability to adequately perceive the situation that has developed and to fully control their actions.
Exceeding the limits of necessary defence is possible only within the time frame during which the right to necessary defence exists: from the moment the attack actually begins (or a real threat of its beginning arises) until the moment the attack ends (or for a certain period immediately after the attack has ended, if, based on the circumstances of the case, the moment of its completion is unclear to the defending person). Taking the victim's life outside these time limits cannot be classified under Article 102 of the Criminal Code. Taking the victim's life for the purpose of preventing a possible attack on their part may be classified under Article 102 of the Criminal Code only if there is a real threat of an attack by the victim.
An analysis of judicial and investigative practice unfortunately leads to the conclusion that, when legally assessing murders committed in excess of the limits of necessary defence, these circumstances are not always given proper consideration, which results in persons being convicted of murder (Article 99 of the Criminal Code).
When deciding whether the harm caused to the attacker was lawful, it is necessary to proceed from the value of the protected interest or benefit to which harm was caused, the proportionality between the methods and means of defence and the methods and means of attack, and the intensity of the means of defence and the means of attack. However, when deciding whether there are signs of exceeding the limits of necessary defence, it is not permissible to proceed mechanically from the requirement that the means and methods of defence must correspond to the means and methods of attack. Such correspondence is hardly possible, since successfully repelling an attack requires overcoming it by applying more intensive methods. It is necessary to take into account the nature of the threatened danger and the strength and capabilities of the defending person to repel the attack (the number of attackers and defenders, their age, physical condition, whether they are armed, the place and time of the attack, etc.). All these circumstances must be assessed together. In particular, there are no grounds for limiting the possibility of taking the attacker's life exclusively to situations in which the attack involved violence dangerous to the life of the defending person or another person. There is no excess of the limits of necessary defence if a woman, defending herself against a group of rapists, uses a weapon and causes the death of one of the attackers. The actions of the defending person cannot be regarded as having been committed in excess of the limits of necessary defence even where the harm caused was greater than the harm prevented and the harm that would have been sufficient to prevent the attack, provided that there was no obvious discrepancy between the defence and the nature and danger of the attack.
The practice whereby causing the death of an attacker is classified as murder committed in excess of the limits of necessary defence without specifying what constituted the excess cannot be considered correct.
Murder committed in excess of the limits of necessary defence, where the elements specified in subparagraphs 1), 5), 6), and 9) of Part 2 of Article 99 of the Criminal Code are present, must be classified not as murder under aggravating circumstances, but under Article 102 of the Criminal Code.
The corpus delicti is material in its construction. The crime is considered completed from the moment the attacker dies.
From the subjective perspective, murder committed in excess of the limits of necessary defence is characterised exclusively by intentional actions in the form of intent (direct or indirect). Causing death through negligence while exceeding the limits of necessary defence excludes criminal liability. At the same time, the provisions of Article 66 of the Criminal Code must be borne in mind, which provide for the possibility of exemption from criminal liability if a person exceeded the limits of necessary defence as a result of fear, fright or confusion caused by a socially dangerous attack.
The perpetrator must be aware both of the fact of depriving the victim of life and of the circumstances associated with the defence. By virtue of this, murder in the context of imaginary defence (when there is no actual socially dangerous attack and the person merely mistakenly assumes that such an attack exists) may be classified as having been committed in excess of the limits of necessary defence if the defending person was not aware, and should not have been aware, that their assumption regarding the existence of the attack was mistaken. If the circumstances provided grounds for believing that an actual socially dangerous attack was taking place, and the person who applied defensive measures was not aware and could not have been aware of the absence of such an attack, their actions should be regarded as having been committed in a state of necessary defence. At the same time, a person who exceeded the limits of defence permissible under the conditions of the corresponding actual attack, which was not accompanied by violence dangerous to the life of the defending person or another person, or by an immediate threat of the use of such violence, is subject to liability for exceeding the limits of necessary defence.
In cases where a person was not aware, but, in the circumstances of the case, should and could have been aware of the absence of an actual socially dangerous attack, their actions are subject to classification under the Articles of the Criminal Code providing for liability for crimes committed through negligence.
If, however, no socially dangerous attack actually existed and the surrounding circumstances did not provide the person with grounds to believe that such an attack was taking place, the person's actions are subject to classification on general grounds.
The subject is a sane natural person who has reached the age of 16. An official who commits murder in excess of the limits of necessary defence is liable under Article 102 of the Criminal Code. Additional classification under Article 362 of the Criminal Code is not required in this case, even if that person was subjected to an attack in connection with the performance of their official duties. Military personnel who commit murder in excess of the limits of necessary defence while defending themselves against attacks during the performance of their military duties are also liable under this Article.
It is necessary to distinguish murder committed in excess of the limits of necessary defence from similar actions committed in a state of affect. In this regard, it should be borne in mind that, in a state of necessary defence, including when exceeding its limits, the perpetrator is guided by the desire to ensure protection against a socially dangerous attack, whereas in a state of affect they act with the intent to cause harm to the person who committed the act that caused the affect. In order to determine a person's psychological state at the moment of committing the specified acts, a forensic psychological and psychiatric examination must be conducted, and its conclusion must be assessed together with the other evidence.
If the perpetrator exceeded the limits of necessary defence and was simultaneously in a state of intense emotional agitation caused by the unlawful actions of the victim, the act should be recognised as having been committed in excess of the limits of necessary defence and, depending on the consequences, classified under Articles 102 or 112 of the Criminal Code. This approach to resolving the issue is обусловлено by the fact that, in the event of competition between criminal offences containing privileged circumstances, preference is given to the offence whose elements reduce the penalty to a greater extent.
Murder committed in excess of the limits of necessary defence should be distinguished from ordinary murder (Part 1 of Article 99 of the Criminal Code) in cases where it may be assumed that the latter was committed out of revenge. Thus, when repelling a socially dangerous attack, a person who exceeds the limits of necessary defence is guided by the necessity of protection against the socially dangerous attack. As long as the person is guided by this motive, causing the death of the attacker in such a situation is classified under Article 102 of the Criminal Code. Once the need for protection against the socially dangerous attack has ceased to exist, but the person who was subjected to the attack nevertheless causes the victim's death, these actions constitute an act of revenge — an unauthorised reprisal. In the absence of aggravating circumstances, such actions should be classified under Part 1 of Article 99 of the Criminal Code.
The act provided for in Article 102 of the Criminal Code belongs to the category of minor offences.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on the reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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