Commentary to article 32. Necessary defense of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. It is not a crime to harm an encroaching person in a state of necessary defense, that is, while protecting the person, home, property, land plot and other rights of the defender or other persons protected by law from the interests of society or the state from socially dangerous encroachment by causing harm to the encroaching person, provided that the limits of necessary defense have not been exceeded.
2. All persons have the right to the necessary defense equally, 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 other persons or government agencies.
3. Exceeding the limits of necessary defense is considered to be a clear discrepancy between the protection and the nature and degree of public danger of the encroachment, as a result of which the encroaching person suffers clearly excessive harm that is not caused by the situation. Such an excess entails criminal liability only in cases of intentional harm.
It is not considered exceeding the limits of necessary defense to harm a person who is encroaching on human life, or when repelling another encroachment connected with the use or attempt to use weapons.
Article 13 of the Constitution of the Republic of Kazakhstan defines that "Everyone has the right to have his legal personality recognized and has the right to defend his rights and freedoms in all ways that do not contradict the law, including necessary defense." Thus, the institution of necessary defense originates its legal regulation in the Basic Law of the State and finds its continuation in the branches of law. Thus, in the Criminal Code of the Republic of Kazakhstan, the necessary defense is fixed in art. 32 of the Criminal Code. It states that: "1. It is not a crime to harm an encroaching person in a state of necessary defense, that is, while protecting the person, home, property, land plot and other rights of the defender or other persons protected by law from the interests of society or the state from socially dangerous encroachment by causing harm to the encroaching person, provided that the limits of necessary defense have not been exceeded.
2. All persons have the right to the necessary defense equally, regardless of their professional or other special training and official position, gender, age and other circumstances. A person has the right to the necessary defense, regardless of which object protected by law has been subjected to a socially dangerous encroachment, whether this object belongs personally to the defender or another person, and regardless of the possibility of avoiding a socially dangerous encroachment or seeking help from other persons or government agencies."
Criminal law allows for the necessary defense because it is directed against socially dangerous actions and thus is not a socially dangerous action, but, on the contrary, a socially useful one.
The institution of necessary defense in criminal law is designed to help strengthen the rule of law. It helps to prevent the possibility of committing crimes, helps to deter persons intending to commit a crime from carrying out this criminal intent. Necessary defense is one of the means of protecting the rights and interests of the individual, as well as public and State interests. The necessary defense is in law, there is a subjective right of a citizen. Any person has the right to protect personal interests, property, power and other interests from criminal encroachments by means of an act of necessary defense. The exercise of this right by a person in this regard is his public duty, a moral obligation. Every citizen of society has the right to protect himself and others from criminal attacks by offenders and thereby prevent criminal acts. In the criminal law system, necessary defense is an independent right of a citizen, generated by the presence of a criminal encroachment.
The necessary defense, as a general rule, is the subjective right of a citizen in certain conditions to repel a socially dangerous encroachment. Citizens are not required to carry out an act of national defense. The law cannot require citizens, under threat of punishment, to exercise their right to necessary defense without fail. A person may, without resorting to the necessary defense, evade an upcoming attack, resort to the help of other persons, and the like. However, in a certain situation, for example, when there is an attack on the interests of the state or public interests, or on the life or health of others, the necessary defense may be a moral obligation of citizens.
A certain category of people has not only a moral, but also a legal obligation to defend themselves from attack. For example, a sentry is required to defend an object entrusted to him from attack, etc. Refusal to defend oneself in these cases may contain elements of a specific crime - Article 377 of the Criminal Code of the Republic of Kazakhstan "Violation of the statutory rules of guard duty" or disciplinary misconduct.
Certain categories of citizens have the right to the necessary defense within the framework of their professional activities. Thus, Article 12 of the Law of the Republic of Kazakhstan "On Internal Affairs Bodies of the Republic of Kazakhstan" dated December 21, 1995 (as amended and supplemented) states that "firearms, special means and physical force are used to stop socially dangerous acts, as well as to detain and bring to the internal affairs bodies persons who those who committed them." Military personnel of national security agencies have the same right on the basis of art. 12 Decree of the President of the Republic of Kazakhstan, which has the force of Law, "On National Security Agencies of the Republic of Kazakhstan", dated December 21, 1995 (as amended and supplemented).
Thus, the legislator allows harm to be inflicted on an encroaching person, up to and including causing death. The fight against crime can be effective only if it is conducted by active means. One of these active means is the necessary defense.
For example, four unidentified men snatched a bag from a man and tried to escape. At that moment, the police officers of the Department of Internal Affairs of the Karaganda region, E. and K., were nearby. They tried to detain the robbers, but they resisted and beat up one policeman. The second policeman used his service weapon, firing three shots into the air and one to kill. One of the attackers was taken to a regional hospital with a gunshot wound to his right shin and bone damage. The second of the robbers was also arrested. The use of weapons in this case was recognized as legitimate.
The necessary defense eliminates the public danger of the action being performed if it meets certain conditions related to both attack and defense. Only in the presence of these conditions is the committed act lawful, it does not contain any signs of a crime and may entail criminal liability. An action committed in the exercise of the right to necessary defense is not only not punishable, but also lawful. The conditions for the legality of an act of necessary defense must be determined in accordance with the requirements of the law. Thus, the necessary defense is recognized as legitimate in the presence of a number of conditions, which are divided into two groups: the first relates to encroachment, the second to protection.
The conditions for the legality of the necessary defense related to the encroachment should be as follows:
1) the encroachment must be socially dangerous;
2) the encroachment must be in cash;
3) the encroachment must be valid.
The social danger of an encroachment is determined by the fact that it is such in its objective features. In legal terms, encroachment most often manifests itself in a crime. The crime may consist of attempted murder, injury to health, rape, robbery, robbery.
According to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application of legislation on necessary defense" dated April 27, 2007: Such an encroachment is considered socially dangerous, which is aimed at harming socially significant values of the defender or other persons, the interests of society and the state, protected by law. Accordingly, the objects of protection for the necessary defense may be human rights, i.e. his life, health, sexual integrity, honor and dignity, property, housing, land, etc. the rights belonging to both the defender himself and others, as well as the interests of society and the interests of the state.
An encroachment from which a person has the right to defend himself may be intentional and careless, it may contain elements of a crime or not be criminal, however, these circumstances do not affect the defender's right to defend himself, since the defender equally has the right to defend himself from intentional or careless encroachment coming from a person subject to criminal responsibility and directly from an insane or from a person who has not reached the age from which criminal liability begins.
It should be noted that not every intentional crime can serve as the right to use the necessary defense. They cannot commit an intentional crime that cannot immediately and inevitably cause harm to public relations. For example, when committing economic smuggling (Article 209 of the Criminal Code of the Republic of Kazakhstan), giving deliberately false testimony (Article 352 of the Criminal Code of the Republic of Kazakhstan), deceiving consumers (Article 223 of the Criminal Code of the Republic of Kazakhstan), etc.
In the legal literature, the question is sometimes raised that is it possible to defend oneself against the actions of persons with authority? The general rule is that defense is unacceptable against the lawful actions of persons with authority within their competence. For example, during the arrest of a criminal. Responsibility for resisting a representative of authority occurs if it occurs during the performance of duties assigned to him by a person with authority. This provision of the law is essential. It follows that it is the legitimate activities of government officials that are subject to criminal law protection.
When deciding on the possibility of necessary defense against illegal actions of persons with authority, there are certain disagreements. Thus, Professor A. A. Piontkovsky wrote that "it should be recognized that it is nevertheless necessary to limit the possibilities of defense against illegal actions of officials. They should be recognized as legitimate against the actions of officials related to encroachment on the identity of the victim. Other illegal actions of officials can be appealed in accordance with the established procedure, and it would hardly be justified in these cases to justify the use of violence against an official with reference to the state of necessary defense."
Thus, he believes that the necessary defense is possible against illegal actions of persons with authority, only in cases of encroachments on the identity of the victim. In other cases, the necessary defense against illegal actions of persons with authority is unacceptable. In my opinion, this position is not entirely correct, as it does not take into account all the requirements of the law on necessary defense. The necessary defense is possible against any illegal actions of officials. This, first of all, follows from the law itself, which allows for the necessary defense against socially dangerous criminal attacks without any reservations about the identity of the attacker. Consequently, the necessary defense is permissible against the actions of persons with authority, illegal in essence, aimed at the application of significant, immediate and imminent harm to a legal object, and does not differ in any way from the defense against encroachment carried out by any other person.
For example, a traffic police officer, while drunk, stopped a GAZ-24 car at gunpoint, dropped the driver off, took the keys, and wanted to use the car to visit a friend. The driver did not lose his head, applied self-defense techniques and delivered the traffic police officer to the duty station.
The driver's actions were lawful and relate to the necessary defense. In the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application of legislation on necessary defense" dated April 27, 2007 It says that "A person who has caused harm to another person in connection with the commission of actions by the latter that formally contain signs of a crime, but because of their insignificance do not pose a public danger, as well as a person who, by his behavior, specifically caused (provoked) an attack in order to then use this situation as an excuse, cannot be recognized as being in a state of necessary defense." to commit illegal acts (for example, starting a fight, committing violence, committing an act of revenge, etc.).
If the person who committed the provocation did not actually cause harm, then there is no reason to regard the response of the provoked person as committed in a state of necessary defense. Such actions entail liability on general grounds.
Also, actions of a person aimed at countering someone who was in a state of necessary defense or acting lawfully in other cases (for example, when detaining a criminal) cannot be considered as necessary defense. As required by the highest court of our state, responsibility for what has been done in such cases comes on a general basis.
In the theory of criminal law and judicial practice, the necessary defense against administrative offenses is allowed. This provision is also enshrined in the Code of Administrative Offences of the Republic of Kazakhstan (art. 38 Necessary Defense), adopted on January 30, 2001.
For example, on the street, a drunk G. began to molest the spouses of D. going to the theater. The spouses crossed to the other side of the road. G. followed them, grabbing the woman by the hand. Then her husband pushed G. hard in the chest. He lost his balance and fell, breaking an arm bone in the fall. The court found that D. had acted in a state of legitimate and necessary defense against a person who had committed minor hooliganism.
When applying the necessary defense against administrative offenses, it must be borne in mind that an administrative offense is less dangerous than a criminal offense, and therefore the intensity of the application of a measure of protection against an administrative offense should be much lower than when protecting against criminal offenses. Some administrative offenses have a minor degree of public danger, therefore, when protecting against them, the legality of harming the encroaching person is generally excluded.
One more thing to pay attention to.
This provision of the Code of Administrative Offences states that a person is not subject to administrative responsibility for necessary defense. But when protecting against encroachments, the responsibility for which is provided by the Code of Administrative Offenses of the Republic of Kazakhstan, it is easy to exceed the limits of necessary defense. In such cases, it is possible to incur liability based on the norms of criminal law. Therefore, extreme caution is required when using the right to the necessary defense against encroachments that are in the nature of administrative offenses.
The presence of an encroachment determines the limits of the necessary defense in time.
The cash encroachment exists:
- at the very moment of a socially dangerous encroachment; - when there is a real threat of attack; - when the defense followed immediately after the act of at least completed encroachment, but due to the circumstances of the case, the moment of its completion was not clear to the defender.
In order to recognize a person as being in a state of necessary defense, it is necessary to establish that a socially dangerous encroachment has taken place and that this encroachment served as the basis for the person to commit acts involving death or injury to the attacker in order to prevent or repel this encroachment.
The necessary defense is permissible even when there is a real threat of harm to interests protected by criminal law.
For example, in the evening, in a deserted place, several people silently approached Citizen K.. In such a situation, K. mistook the actions of the unidentified men for a threat and struck one of the approaching unidentified men in the head first. In this case, the attack had not yet begun, but the situation in which the events took place gave K. reason to believe that there was a real threat of attack.
Harming a person who has not actually committed, but, in the opinion of the defender, could have ever committed a socially dangerous encroachment does not constitute a necessary defense, since the act is aimed at harming an indefinite circle of people, and not at reflecting a specific socially dangerous encroachment emanating from a certain person (for example, harming accidentally, who happens to be a person was killed nearby as a result of an explosion of a device installed by the owner of the garden to prevent fruit theft).
A person will not be recognized as being in a state of necessary defense in the event that defensive actions were directed against an already completed attack. An attack that has clearly stopped without being completed, or an attack that has already been fully carried out, is considered to be an ended attack. Therefore, it would not be a necessary defense to harm the health of the person who committed the insult.
However, the state of necessary defense cannot be considered eliminated when the act of defense followed immediately after the act of at least completed encroachment, but due to the circumstances of the case, the moment of the end of the encroachment was not clear to the defender.
As mentioned above, the next condition for the legality of the necessary defense related to the encroachment is the validity of the encroachment. The validity of the encroachment is determined by the fact that the encroachment must be objective, existing in reality, and not in the imagination of the subject. The necessary defense is excluded against an apparent, that is, a non-existent encroachment, when there was no threat of its commission. Therefore, it cannot be considered as a necessary defense in the actions of a person "defending himself" against an imaginary non-existent encroachment.
However, when carrying out an act of necessary defense, the legislator does not require that as a result of the defense, harm be caused directly to the attacker's personality. In my opinion, his property interests may also be harmed.
Protection from encroachment during the implementation of an act of necessary defense can be expressed in various forms of harm to the attacker: in deprivation of life; causing serious, light harm to health, as well as moderate harm to health; striking; deprivation of liberty; in the destruction, damage, seizure of property with which a criminal attack on the victim occurs; in damage property (for example, clothing) that was associated with harming the attacker's personality and other consequences.
For example, a drunken P. began beating his wife, S., then pinned her to the porch railing and began strangling her by squeezing her neck. Defending herself, S. inflicted a fatal wound on her husband with a kitchen knife, which she used to peel potatoes. The court recognized her actions as committed within the limits of necessary defense.
Usually, the implementation of the necessary defense is directly related to the infliction of some kind of harm to the attacker's personality. In this case, the degree of harm is determined on a case-by-case basis, in accordance with the nature and degree of danger of encroachment. Protection, as indicated by the law, must correspond to the nature and degree of danger of encroachment.
The basic rule for necessary defense is that harm should not be directed against third parties. Protecting any interests by harming third parties rather than the attacker is not an act of necessary defense. In this case, taking into account the circumstances of the case, the rules of extreme necessity may apply.
However, harming a third party as a result of an error in the encroaching person does not exclude the criminality of the defense. Responsibility for such "defense" comes on a general basis, i.e., depending on the presence of guilt.
The conditions of necessary defense also include that protection should not exceed the limits of necessary defense.
Exceeding the limits of necessary defense is recognized by criminal law as "a clear discrepancy between protection and the nature and degree of public danger of an encroachment, as a result of which the encroaching person suffers clearly excessive harm that is not caused by the situation. Such excess entails criminal liability only in the case of intentional harm" (Part 3 of Article 32 of the Criminal Code of the Republic of Kazakhstan).
An obvious discrepancy is an obvious, undeniable sharp discrepancy between protection and the nature and degree of encroachment, when serious harm is inflicted unnecessarily, unnecessarily, necessary to prevent or suppress encroachment.
Necessary defense is the protection of legitimate interests by harming the intruder. But with the necessary defense, it is allowed not to cause any harm, but only such as was caused by the need to prevent or suppress encroachment.
In the case when the defender resorted to protection by such means and measures, the use of which was not caused by either the nature or the degree of danger of the encroachment, or the actual situation, and unnecessarily caused serious harm to the encroaching person, clearly not caused by the need to prevent or suppress the encroachment, then there is an excess of the limits of necessary defense.
In order to correctly establish the limits of the necessary defense and establish the conformity (inconsistency) of the encroachment and protection against it, it is necessary to establish and evaluate in each case: the nature of the encroachment, its social danger, the intensity of the encroachment, compliance (inconsistency) the degree of protection to the attack, the nature of the harm caused to the aggressor, the evidence (evidence) of the excess of the harm caused, the situation causing (not causing) causing such harm, etc.
When assessing the nature of an encroachment, one should take into account the direction of the attacker's actions, the content of the harm caused by him, which may be physical, property or moral.
The degree of a socially dangerous assault is determined by its nature, as well as the activity of the attackers, their numbers, age characteristics, the presence of weapons and other specific circumstances. The correspondence of the defense to the nature and degree of public danger of the encroachment presupposes that the defender must take into account the real balance of his forces and those of the attacker and, taking into account all the circumstances, must not allow harm to be inflicted more than is necessary to prevent the encroachment. At the same time, the discrepancy between the harm that was intentionally caused to the defender, the size and nature of the harm caused to the attacker, or the harm that could have been caused, entails criminal liability only if there is an obvious, obvious absence of the need to cause such harm in order to exercise the right to defense (paragraphs 9, 10, 11 of the Regulatory Resolution). When an encroachment is committed by a group of persons, the defender has the right to apply to any of them such protective measures that are conditioned by the danger and nature of the actions of the entire group.
Exceeding the limits of necessary defense cannot be reduced to a clear discrepancy between weapons, means of defense and weapons, means of encroachment. The main thing is not what tools and means the defender uses, but what harm they are used for, and how sufficient they are to repel an encroachment.
When clarifying the issue of exceeding the limits of necessary defense, it is necessary to take into account the well-known proportionality between the harm caused by the encroaching and the nature of the danger of encroachment.
For example, a drunk B. came to K.'s house and started a quarrel with him. However, K. They managed to get B. out, who, calling on his brother for help, came back to K.'s house and began to call him outside. Fearing reprisals against her husband, the wife and their friend Z. demanded that the brothers leave the house. However, B. used violence against K.'s wife, grabbed her by the neck and hit her on the head. In response to this, K. He took a gun and shot the brothers twice. One of them was killed, the other was seriously injured.
The Court of First instance concluded that K. He was not in a state of necessary defense and qualified his actions as attempted murder. The Judicial Board pointed out that the court had not taken into account that K. He legitimately defended his family from attack, but at the same time exceeded the limits of necessary defense. Thus, K.'s actions were qualified under Article 99 of the Criminal Code of the Republic of Kazakhstan.
Exceeding the limits of necessary defense is a socially dangerous act and therefore constitutes a crime under Articles 99, 109 of the Criminal Code of the Republic of Kazakhstan. However, committing a crime in excess of the necessary defense is an act relatively less dangerous than causing the same harm in the absence of these conditions. 53 of the Criminal Code of the Republic of Kazakhstan indicates as mitigating circumstances that the crime was committed in violation of the conditions for the legality of the necessary defense.
Revenge on a criminal for an attack should be distinguished from exceeding the limits of necessary defense due to its untimely nature.
For example, S. was in the courtyard of the house. Two guys jumped off a passing cart and caused harm to their health. Then they got into the cart and drove away. S. called his older brother, took a gun, and the two of them caught up with those who were leaving to take revenge. At the same time, one was killed. At the trial, S. stated that they were defending themselves.
In this example, the encroachment by the two guys has ended, and, therefore, defense in such cases is unacceptable. In fact, S. and his brother killed the victim out of revenge, rather than in a state of necessary defense. Thus, S.'s actions fall under the signs of a crime under Article 96 of the Criminal Code of the Republic of Kazakhstan.
Exceeding the limits of necessary defense, caused by the disproportionality of the means of defense used compared to the nature of the attack that took place, is the most common case of exceeding the limits of necessary defense.
The establishment of a clear discrepancy between protection and the nature and danger of encroachment, as required by Article 32 of the Criminal Code of the Republic of Kazakhstan, is associated with a careful study of all the specific conditions in which the act of necessary defense is carried out. At the same time, it is necessary to take into account the degree of danger of the attack, the proximity of its implementation, the strength and speed, the nature of the means chosen by the attacker, and the like. When determining the degree of danger of an attack, the object of the attack itself is essential.
To determine the degree of intensity of an attack, the means of attack and the manner in which the attack is carried out are essential. For example, a robbery combined with violence dangerous to the life and health of the victim is more intense than an open theft of property without violence against a person. However, under certain conditions, an unarmed attack (when the attacker strangles the victim) can also occur It can be as intense as an armed attack.
It should be borne in mind that in a state of mental agitation caused by an encroachment, the defender cannot always accurately weigh the nature of the danger and choose proportionate means of defense, therefore, the transfer of weapons or other objects used in the attack from the encroaching to the defender, causing the encroaching greater harm than the harm prevented or sufficient to repel the attack, by themselves They cannot indicate that the limits of the necessary defense have been exceeded, unless there has been a clear discrepancy between the nature of the defense and the danger of encroachment.
When assessing the conformity of attack and defense, Part 3 of Article 32 of the Criminal Code should be taken into account, which provides for cases of necessary defense in which harm to an encroaching person does not entail criminal liability. The legislator provides for the direction of an encroachment against human life, as well as the armament of a person when encroaching on other objects protected by law, as circumstances in which the harm inflicted on the intruder is always recognized as appropriate to the nature and degree of public danger of the encroachment, regardless of the nature of the harm inflicted on the attacker. Such acts are considered to have been committed within the limits of necessary defense, and they do not entail criminal liability.
Under the weapon, the presence of which in the attacker is a circumstance that precludes exceeding the limits of necessary defense, it is necessary to recognize items classified by the Law of the Republic of Kazakhstan dated December 30, 1998 "On State control over the turnover of certain types of weapons" to firearms or cold weapons, ammunition, which can cause death to a person.
If the attacker is armed with other objects, for example, household or other items (a hammer, an axe, a kitchen knife, sprayers with tear or other irritating substances, stones, sticks, bricks, etc.), liability for the damage caused is excluded, provided that the limits of necessary defense have not been exceeded.
If the perpetrator encroached on a person's life with the marked objects, then any retaliatory actions of the defender, up to and including taking the life of the intruder, should be considered as committed in a state of necessary defense.
The criminal legislation of the Republic of Kazakhstan establishes responsibility for causing, with necessary defense, not any harm, but only that caused by intentional actions. In this regard, crimes committed while exceeding the limits of necessary defense are subjectively characterized only by intentional guilt. If the harm to the intruder was caused as a result of negligence, then the criminality and punishability of such an act committed while exceeding the limits of necessary defense is excluded.
Responsibility for causing harm during necessary defense occurs only when the act of the defender contains signs of crimes provided for in articles 99 (murder committed while exceeding the limits of necessary defense), 109 (causing serious harm while exceeding the limits of necessary defense). It follows from this that causing minor or moderate harm to the attacker's health when exceeding the limits of necessary defense is not considered a crime and does not entail criminal liability.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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