Commentary to article 35. Necessary defense The Code of the Republic of Kazakhstan on Administrative Offences
1. It is not an administrative offense to commit an act provided for in this Code 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 unlawful 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 unlawful encroachment or seeking help from other persons or government agencies.
3. Exceeding the limits of necessary defense is recognized as a clear discrepancy between the protection and the nature and degree of danger of encroachment, as a result of which the encroaching person is clearly caused excessive harm that is not caused by the situation. Such an excess entails administrative liability only in cases of intentional harm.
4. A person who has exceeded the limits of necessary defense due to fear, fright or confusion caused by unlawful encroachment is not subject to administrative responsibility.
Necessary defense is an inalienable constitutional right of everyone to protect themselves from socially dangerous attacks on life, health, property, housing, property and other legally protected human rights and interests.
Part 1 establishes the administrative and legal understanding of the institution of necessary defense, which is a circumstance that excludes the illegality of the act. Based on the content of this norm, two groups of constituent elements can be distinguished:
- illegal encroachment;
- protection from encroachment.
For the necessary defense, an encroachment must be illegal and pose a public danger. Encroachment must be covered by at least one of the elements provided for in the Special Part of the Administrative Code.
Illegal encroachment must be real, exist in objective reality, and not be a fiction of the defender. It would not be a necessary defense to harm the defenders if he acted out of fear or apprehension. For example, to harm a dog sitting on a leash, or to attack a person with tattoos and a menacing look.
An unlawful encroachment must be initiated, i.e. the act must enter the execution phase. The necessary defense will not take place when the defense is carried out after a certain time after the encroachment. Protection within the framework of the necessary defense should be carried out during the encroachment or immediately after its completion, as well as when the moment of the end of the encroachment was not clear to the defender.
Cases are acceptable when the necessary defense will be legitimate before the attack begins. For example, a group of people with hooligan motives breaks all the storefronts in a row on the street, and the owner of a store located in the immediate vicinity used force against the hooligans, without waiting for an encroachment on his property. In such cases, it is necessary to assess the inevitability and reality of the threat based on the case file.
The conditions for the legality of protection within the framework of necessary defense include:
- protection of both personal rights and interests of society or the state;
- protection of only legally protected rights and interests;
- protection, by causing harm, aimed only at the encroaching;
- protection should not exceed certain limits.
With the necessary defense, personal rights (for example, health), public interests (obstruction of the activities of a charitable organization), and state interests (for example, violation of the legislation of the Republic of Kazakhstan on public service) can be protected.
The necessary defense is legitimate only in cases where there is a threat to the protected rights and interests. Harming crops on illegally used land will not be a necessary defense.
Within the framework of legitimate and necessary defense, harm should be inflicted specifically on the intruder. Harm should not be inflicted on third parties. If harm is inflicted on third parties, defense may be regarded as an extreme necessity (Article 37 of the Administrative Code).
The limits of necessary defense are limited by the proportionality of the harm caused and the danger of encroachment. When assessing the proportionality of an encroachment and defense, it is necessary to take into account the ratio of one's own forces and capabilities with the strength of the threatening party. Exceeding the limits of necessary defense does not exempt from responsibility.
If the actions comply with the criteria of legality of the necessary defense, an administrative case cannot be initiated, and the initiated case must be terminated in accordance with art. 741 of the Administrative Code.
Part 2 of this article establishes that official position, professional or other special training does not exclude the right to act within the framework of necessary defense.
The legislator focused on the general operation of the institute of necessary defense, on the equality of all participants in administrative and legal relations. This means that acting within the framework of necessary defense is not hindered, for example, by martial arts sports skills, mastery of self-defense techniques, and the presence of authority.
Moreover, this right remains even if there are other ways to influence the encroachment.:
the possibility of escape is flight, concealment of property, etc.
the opportunity to ask for help – by shouting for help, contacting emergency response services, or filing a complaint with an authorized person or body.
The presence of these possibilities does not limit a person to defend himself within the framework of the necessary defense, since the reaction to an unlawful encroachment is justified.
The content of exceeding the limits of necessary defense is disclosed by the legislator in part 3 of the commented norm and consists of:
- inconsistencies of protection and danger;
- excessive harm caused.
The discrepancy between protection and danger implies a lower public danger of encroachment and a greater public danger of protection. For example, when driving through crops is threatened, physical force is used against a person for protection, although damage to vehicle tires could be an appropriate method of protection.
The harm caused must not clearly exceed the harm threatened. For example, there is a threat of material damage in the amount of 10,000 tenge, and damage in the amount of 200,000 tenge was caused for protection purposes.
In this case, the nature and degree of danger is assessed by the situation of the event. During the proceedings, all the circumstances of the event must be established in detail: time, weather, illumination, the presence of other people on the ground, the number of intruders and their characteristics and actions of each, the physiological characteristics of the defender, and much more.
A special sign of exceeding the limits of necessary defense is intent. The onset of administrative responsibility for causing harm if the limits of necessary defense are exceeded is possible only if it is intentionally inflicted, i.e. when a person is aware of and desires the consequences of his actions.
Finally, part 4 of this article contains exceptions and exceeding the limits of necessary defense. The following reasons are fixed as conditions for exemption from administrative responsibility::
- fear;
- fright;
- confusion.
The legislation stipulates that the fear of a person who has been attacked and caused harm to an encroaching person with necessary defense should be understood as a very strong fright, a strong fear of a person in connection with an encroachment committed on him. The emotional state of a person, like fright, in similar cases is characterized by the sudden appearance of a feeling of fear in him. The confusion of the defending person should be understood as his sudden confusion, confusion, and disorder of his actions due to fear, fright caused by a socially dangerous encroachment.
An important condition is that these reasons must be caused precisely by this unlawful encroachment, from which the person is being protected. Therefore, during the proceedings, it is necessary to establish a causal relationship between the conditions of exceeding the limits and unlawful encroachment.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
