Exemption from Criminal Liability for Exceeding the Limits of Necessary Defense
🔷 1. General Characteristics of the Norm
Article 66 of the Criminal Code of the Republic of Kazakhstan provides for the possibility of exempting a person from criminal liability if they exceeded the limits of necessary defense while being in a state of fear, fright, or confusion caused by a real threat of a socially dangerous encroachment.
📌 This is an exception to the general rule on the punishability of exceeding the limits of necessary defense (Article 112 of the Criminal Code of the Republic of Kazakhstan) and reflects a humanistic approach to assessing human behavior under conditions of acute stress and danger.
🔷 2. The Concept of Necessary Defense and Its Limits
🔹 According to Article 112 of the Criminal Code of the Republic of Kazakhstan, necessary defense is actions aimed at repelling an encroachment that do not exceed the measures necessary and sufficient to stop it.
🔹 Exceeding the limits of necessary defense means causing harm that is clearly disproportionate to the nature of the attack (for example, inflicting a fatal injury in response to a threat of a punch).
🔷 3. Conditions for the Application of Article 66 of the Criminal Code
Exemption from criminal liability is possible only if three groups of conditions are met simultaneously:
✅ 1. There was a real socially dangerous encroachment
- i.e., the attacker’s actions actually posed a threat to life, health, freedom, or property.
✅ 2. The limits of necessary defense were exceeded
- i.e., the defender caused greater harm than was objectively necessary.
✅ 3. The excess was caused by:
- fear;
- fright;
- confusion directly caused by the encroachment.
📌 These emotional states deprive a person of the ability to adequately assess the situation and make a correct decision. In such cases, the court may exempt the person from liability due to exceptional circumstances, rather than due to the absence of the elements of a crime.
🔷 4. Judicial Practice
🔸 Example 1 (exemption applied):
Citizen A inflicted grievous bodily harm on a robber by stabbing him with a knife during an attempted nighttime burglary of her apartment. The court found the actions disproportionate to the threat but determined they were caused by fear and panic; the case was terminated under Article 66 of the Criminal Code of the Republic of Kazakhstan.
🔸 Example 2 (exemption denied):
Citizen B struck his neighbor with a metal pipe during a verbal altercation. The court found no fact of a socially dangerous encroachment; therefore, necessary defense was absent → punishment was imposed.
🔷 5. Related Legal Provisions
| Provision | Content |
|---|---|
| Article 112 CC RK | Necessary defense |
| Article 113 CC RK | Causing harm during the detention of an offender |
| Article 65 CC RK | Active repentance |
| Article 11 CPC RK | Principle of the presumption of innocence |
| Article 35 CPC RK | Termination of criminal proceedings (including on non-rehabilitating grounds) |
📌 If the court grants exemption under Article 66 of the Criminal Code, this constitutes a non-rehabilitating ground: the person is recognized as having committed a crime but is released from criminal liability.
🔷 6. International Standards
🔹 European Convention on Human Rights (Article 6):→ requires consideration of the defendant’s psycho-emotional state when assessing guilt.
🔹 International Covenant on Civil and Political Rights (ICCPR):→ enshrines the right to the individualization of criminal liability.
🔹 ECtHR case law:→ in cases concerning necessary defense, courts emphasize the importance of the context of the threat and the defender’s reaction under stress(Wasilewska and Kałucka v. Poland).
🔷 7. Conclusion
Article 66 of the Criminal Code of the Republic of Kazakhstan is an important element of the humanization of criminal law, ensuring:
- protection of persons acting under conditions of panic and threat;
- the possibility of exemption from liability even where the elements of a crime are formally present;
- an individualized judicial approach to analyzing the defender’s conduct.
🔹 This provision is particularly relevant in cases involving domestic violence, robbery, and sudden street attacks, where a citizen’s emotional reaction may be excessive but understandable.
Attention!
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