Commentary to article 99. Murder committed while exceeding the limits of necessary defense of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
Murder committed while exceeding the limits of necessary defense, -
is punishable by restriction of liberty for a term of up to two years or imprisonment for the same term.
The object of the crime is the life of the intruder.
The objective side is characterized by a murder committed while exceeding the limits of necessary defense. Deprivation of the life of an attacker while protecting the person, the rights of the defender or other persons, the legally protected interests of society or the state from a socially dangerous encroachment, i.e. committed in a state of necessary defense, by virtue of art.32 of the Criminal Code is not a crime if it was not allowed to exceed the limits of necessary defense.
According to Part 3 of Article 32 of the Criminal Code, exceeding the limits of necessary defense is recognized 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 is clearly caused excessive harm that does not cause the situation. Such an excess entails criminal liability only in cases of intentional harm.
Murder in excess of the limits of necessary defense does not exclude criminal liability, but mitigates it on the grounds that, by committing this crime, a person seeks to protect himself or others or the legally protected interests of society or the state from criminal encroachment. Often, the perpetrator acts in a state of extreme nervous tension, intense emotional excitement, and sometimes is in a state of fright and experiences feelings of fear, and therefore is unable to adequately perceive the current situation, as well as fully control their actions.
If it is recognized that the person was in a state of passion during the defense process, while exceeding the limits of necessary defense, which resulted in the death of the attacker, then, as a general rule, when competing compositions with privileged circumstances, preference is given to the composition, the signs of which reduce the sanction more and the deed must be qualified under art. 99 of the Criminal Code RK, and when imposing punishment, the court must take into account the affected state of the guilty person as a mitigating circumstance. This rule should also be applied in the case of murder, but in excess of the measures necessary to detain a person.
Unfortunately, an analysis of judicial and investigative practice leads to the conclusion that in the legal assessment of murders committed while exceeding the limits of necessary defense, these circumstances are not always properly assessed, which leads to the conviction of persons for murder (art.96 of the Criminal Code). Numerous examples could be given to support my argument, but the amount of work does not allow this.
When deciding on the legality of harm caused to an attacker, one should proceed from the value of the protected interest or benefit to which harm has been caused, from the proportionality between the methods and means of protection and the methods and means of attack, the intensity of the means of protection and attack. However, when deciding on the presence or absence of signs of exceeding the limits of necessary defense, one cannot mechanically proceed from the requirement of conformity of means and methods of protection against attack. Such a correspondence is hardly possible, because in order to successfully repel an attack, it must be overcome by applying more intensive methods. It is necessary to take into account the nature of the threatened danger, the strength and capabilities of the defender to repel the encroachment (the number of attackers and defenders, their age, physical condition, armament, place and time of the encroachment, etc.). Everything must be evaluated together. In particular, there is no reason to limit the possibility of taking the life of an attacker only to situations where the attack was accompanied by violence dangerous to the life of the defender or another person. There will be no exceeding the limits of necessary defense if a woman, defending herself from a group of rapists, uses a weapon and causes the death of one of the attackers. The actions of the defender cannot be considered as committed in excess of the limits of necessary defense and in the case when the damage caused was greater than the damage prevented and that which was sufficient to prevent the attack, unless there was a clear discrepancy between the nature of the defense and the danger of encroachment.
It is impossible to recognize the correct practice when causing death to an assailant is qualified as murder when exceeding the limits of necessary defense without indicating what the excess consisted in.
A murder committed exceeding the limits of necessary defense in the presence of the signs specified in paragraphs "a", "d", "e", "i" of Part 2 of Article 96 of the Criminal Code should be qualified not as murder under aggravating circumstances, but under Article 99 of the Criminal Code.
The Supreme Court of the Republic of Kazakhstan draws attention to the fact that courts should distinguish murder when exceeding the limits of necessary defense from the same acts committed in a state of sudden intense mental agitation, bearing in mind that when exceeding the limits of necessary defense, the defendant, harming the attacker, is guided by the desire to provide protection from socially dangerous encroachment, whereas for crimes committed in a state of sudden intense emotional excitement, It is typical to harm the victim precisely under the influence of such excitement (physiological effect), and not for the purpose of protection. If the defender exceeded the limits of the necessary defense and at the same time was in a state of sudden intense mental agitation, then his actions should be qualified as murder if he exceeded the limits of the necessary defense. Another feature that distinguishes these crimes from each other is that when a murder exceeds the limits of necessary defense, a state of strong mental excitement may be absent. This crime is considered completed from the moment of the attacker's death, i.e. by design, the composition of art.99 of the Criminal Code is material.
The subjective side of this privileged type is expressed by guilt in the form of intent (direct or indirect). Causing death by negligence while exceeding the limits of necessary defense precludes criminal liability. 66 of the Criminal Code, which provides for the possibility of exemption from criminal liability for causing death or serious harm to health when exceeding the limits of necessary defense due to fear, fright or confusion caused by a socially dangerous encroachment.
The subject is a sane individual who has reached the age of 16. An official who commits a murder exceeding the limits of necessary defense is liable under Article 99 of the Criminal Code. Additional qualifications under Article 308 of the Criminal Code of the Republic of Kazakhstan are not required in this case, although this person was attacked in connection with the performance of his official duties. According to the same article, military personnel who commit murder while exceeding the limits of necessary defense during protection from encroachments at the time of their military duties are liable.
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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