Extreme necessity

NecessityArticle 34 of the Criminal Code of the Republic of Kazakhstan (CC RK)

Article 34 of the Criminal Code of the Republic of Kazakhstan (CC RK) regulates the legal institution of necessity, which permits the infliction of harm on legally protected interests in exceptional circumstances. This refers to cases where such harm is caused to avert an imminent danger and therefore excludes criminal liability. Below is an extended legal commentary on this article, with practical examples and references to related legal acts.

📘 General Provisions

Necessity is a condition in which a person causes harm to legally protected interests in order to avert imminent danger threatening the life, health, rights, and lawful interests of the person or others, as well as the interests of society or the state. Such actions are not considered a criminal offense if the following conditions are met:

1. The danger must be actual and imminent;
2. The danger could not be averted by other means;
3. There was no exceeding the limits of necessity.

Thus, the law recognizes the infliction of harm in a situation of necessity as lawful conduct, provided these conditions are observed.

⚖️ Legal Conditions of Necessity

1. Actual danger – the danger must be real and directly threaten legally protected interests;
2. Impossibility of averting danger by other means – harm is only permissible as a last resort;
3. Proportionality of harm – the harm caused must be less than the harm that was prevented.

🚫 Exceeding the Limits of Necessity

Exceeding the limits of necessity occurs when the harm caused is clearly disproportionate to the nature and degree of the danger and the circumstances under which the danger was averted. If the harm is equal to or greater than the harm prevented and was caused intentionally, it gives rise to criminal liability.

🧾 Judicial Practice

Judicial practice in the Republic of Kazakhstan places great importance on the proper legal qualification of actions committed in a state of necessity. For instance, in a case where a person damaged a neighbor’s property while rescuing their own belongings from a fire, the court assessed whether the harm caused was necessary and proportionate to the harm being prevented.

📚 Related Legal Acts

• Article 32 of the CC RK – Necessary Defense
• Article 33 of the CC RK – Infliction of harm when apprehending a person who committed an offense
• Normative Resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated April 20, 2018 – On the Judgment

🧠 Conclusion

The institution of necessity plays an important role in criminal law. It provides a possibility for exemption from criminal liability in cases where a person, acting to avert imminent danger to themselves or others, causes harm to legally protected interests. However, strict compliance with the conditions established by law is required, as causing excessive harm may result in liability. As demonstrated by judicial practice, the assessment of actions taken in a state of necessity involves careful analysis of the nature of the danger, the ratio between the harm caused and the harm prevented, as well as the motives and circumstances of the person's conduct.

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