Commentary to article 34. The extreme necessity 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 the interests protected by this Code in a state of extreme necessity, that is, to eliminate a danger that directly threatens the life, health, rights and legitimate interests of this person or other persons, the interests of society or the state, if this danger could not be eliminated by other means and the limits of extreme necessity were not exceeded.
2. Exceeding the limits of extreme necessity is considered to be causing harm that clearly does not correspond to the nature and degree of the threatened danger and the environment in which the danger was eliminated when harm equal to or greater than that prevented was inflicted on law enforcement interests. Such an excess entails liability only in cases of intentional harm.
According to Article 34 of the Criminal Code of the Republic of Kazakhstan, it is not a crime to harm interests protected by criminal law in a state of extreme necessity, that is, to eliminate a danger that directly threatens the life, health, rights and legitimate interests of this person or others, the interests of society or the state, if this danger could not be eliminated by other means and at the same time exceeding the limits of extreme necessity.
Theoretically, extreme necessity should be understood as a situation in which the elimination of a danger threatening the legally protected interests of an individual, society and the state is possible only by causing less harm to other legally protected public relations, if it has not been allowed to exceed its limits.
In legal terms, an action committed in a state of extreme necessity is inviolable.
If absolutely necessary, two legally protected relationships collide. Of these, preference is given to the greater good at the expense of harming the lesser good. In other words, if absolutely necessary, "the lesser of two evils is chosen." Thus, actions when absolutely necessary are considered preferable and socially expedient.
For the legality of actions committed in a state of extreme necessity, the criminal law establishes a number of conditions, some of which characterize the imminent danger, others - ways to eliminate it.
The following signs can be attributed to the conditions of legality of extreme necessity, related to the imminent danger. First, danger, if absolutely necessary, can threaten any law-enforcement interests. These can be the interests of a particular individual, as well as the interests of society or the state.
Secondly, a wide variety of events and phenomena can be a source of danger. Among them should be mentioned:
- natural and social disasters: earthquakes, floods, explosions, hurricanes, storms, droughts, etc.;
- aggressive actions of domestic and wild animals;
- malfunction of the mechanisms;
- physiological processes (hunger, thirst) or biological processes (disease);
- socially dangerous actions of people.
Speaking about socially dangerous behavior of people as a source of danger, it should be noted that legally it should consist only of a criminally punishable act. If the danger is created by an administrative offense, then its elimination cannot be assessed on the grounds of art. 34 of the Criminal Code of the Republic of Kazakhstan. Because the harm caused will always be greater than the harm prevented. However, if an administrative offense is committed in a state of extreme necessity, it is in accordance with art. 40 of the Code of the Republic of Kazakhstan on Administrative Offences does not entail administrative responsibility.
A crime as a source of danger, creating a state of extreme necessity, can be committed with both intentional and careless forms of guilt.
Thirdly, the danger, if absolutely necessary, must be real, real, and not imaginary, i.e. it must exist in reality, and not in the imagination of the person. A person's erroneous assumption about the presence of danger and its reality cannot create a state of extreme necessity, but they have an impact on the subjective side of what they have done. For example, if the subject believed that there was a danger, although, according to the circumstances of the case, he could and should have been aware of the error of his assumption, then he should be responsible for the negligent harm caused in eliminating the imaginary danger. If he had every reason to believe that the danger really existed, and could not, due to the circumstances of the case, realize the error of his assumption, then causing harm while eliminating such an imaginary danger would be accidental, not criminally responsible.
Fourthly, the danger must be present, i.e. it must directly threaten the life, health, rights and legitimate interests of this person or others, the interests of society or the state. Therefore, both past and future danger do not form a state of extreme necessity.
The conditions of legality related to protection are:
1) interests protected by Criminal Law are protected. These interests are directly indicated in the criminal law norm itself. These are the life, health, rights and legitimate interests of this person or others, the interests of society or the state.;
2) harm is caused not to the source of the danger, but to third parties. For example, someone else's car was used to take a patient to the hospital. The harm in this case is caused to the car owner.;
3) the threat to public relations could not be eliminated except by harming other law-enforcement interests. If it is possible to eliminate the danger without causing such harm, then the state of extreme necessity is excluded.;
4) the harm caused was smaller in size than the harm prevented. It is not difficult to resolve the issue of the discrepancy between the prevented and caused harm when they relate to the same social relations. The situation is more complicated when the damage prevented was, for example, physical, and the damage caused was property or other, but in such cases their comparison is quite possible. The initial basis for judging the extent of the discrepancy between the harm caused and prevented can be the value, social significance of the threatened interest and the violated interest.;
5) it is not allowed to exceed the limits of necessity of the damage caused.
According to Part 2 of Article 34 of the Criminal Code of the Republic of Kazakhstan, exceeding the limits of extreme necessity is recognized as causing harm that clearly does not correspond to the nature and degree of the threatened danger and the environment in which the danger was eliminated when harm equal to or more significant than prevented was inflicted on law enforcement interests.
The following objective signs follow from the definition of exceeding the limits of extreme necessity:
a) the circumstances of harm prevention clearly, that is, obviously for everyone, did not correspond to the danger that threatened. For example, when harm was not the only way to eliminate danger.
b) the harm caused may be equal to the harm prevented; c) the harm caused must be greater than the harm prevented.
The subjective sign of exceeding the limits of extreme necessity is that exceeding the limits of extreme necessity entails liability only in cases of intentional harm (Part 2 of Article 34 of the Criminal Code of the Republic of Kazakhstan). Consequently, negligent infliction of equal or greater harm than the harm prevented does not entail criminal liability.
53 of the Criminal Code of the Republic of Kazakhstan, such excess of the limits of extreme necessity is a circumstance mitigating criminal liability and punishment.
When deciding on the presence of guilt, it should be borne in mind that in some cases, and especially when the relevant events develop quickly and in a difficult situation, for example, in traffic accidents, a person who has exceeded emergency measures due to the transience of events and involuntary attention disorders is not always able to choose the right decision. In such cases, we can talk about reckless excess of extreme necessity, which should not entail the responsibility of the person.
There is also the question of the responsibility of a person who sought to prevent greater harm by causing less, but in the end both greater and lesser harm was caused. One should agree with S.A. Domakhin, who believed that in this case liability for the harm caused should be excluded if it was not possible to prevent the harm, despite all the efforts of the subject, and when he had sufficient grounds to believe that the chosen way of prevention was the only and necessary one.
In such a situation, great attention should be paid to the motivation of the subject's actions and the direction of his intent to prevent the impending danger.
So, in order to save a drowning person, a person takes someone else's boat, throws bags of sugar out of it to lighten it and reach the drowning person faster, but the victim drowns before the rescuer has time to help him. The harm that the subject was trying to prevent occurred regardless of his actions, and he did everything in his power to help. A state of extreme necessity should be distinguished from a necessary defense.
So, in order to save a drowning person, a person takes someone else's boat, throws bags of sugar out of it to lighten it and reach the drowning person faster, but the victim drowns before the rescuer has time to help him. The harm that the subject was trying to prevent occurred regardless of his actions, and he did everything in his power to help. A state of extreme necessity should be distinguished from a necessary defense.
With the necessary defense, the goal is to protect a certain interest from criminal encroachment, as well as to neutralize the criminal until his physical destruction in certain cases. If absolutely necessary, the goal is to eliminate the danger and prevent harm. With the necessary defense, the actions of the defender are directed against the person who is carrying out a socially dangerous encroachment, and it is he who is being harmed. If absolutely necessary, harm is caused to third parties who are not a source of danger.
With the necessary defense, the damage caused to the attacker may be even greater than the damage prevented. If absolutely necessary, the harm caused must necessarily be less than the harm prevented. With the necessary defense, the defender has the right to use violence against the attacker and harm him, regardless of the possibility of avoiding danger without resorting to violence. If absolutely necessary, harming third parties should be the only way to avoid the impending danger.
The state of extreme necessity differs from harm caused during the detention of a person who has committed an encroachment in that detention serves the purposes of administering justice and preventing the commission of new crimes. In these cases, the immediate danger has already passed.
If absolutely necessary, the goal - to prevent the occurrence of greater harm, to eliminate the impending danger at the cost of causing less harm - is realized at the moment of danger.
Detention is always directed against the offender, and if absolutely necessary, harm is caused to third parties who are not a source of danger.
Thus, the conditions for the legality of actions committed in a state of extreme necessity differ significantly from the conditions for the legality of an act in a state of necessary defense. If absolutely necessary, the law imposes higher demands on a person than with necessary defense. This is explained by the fact that in this case the harm is caused not to the encroaching person, but to the interests of institutions, organizations and persons not involved in the danger.
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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