On the application of legislation on necessary defense

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 2.

     The footnote. Throughout the text:

numbers "96", "99", "109" replaced by numbers , respectively "99", "102", "112";

the words "crimes", "crimes", "crimes", "crimes" are replaced, respectively, by the words "criminal offenses", "criminal offenses", "criminal offenses", "criminal offenses" in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

      In connection with the amendment of the criminal legislation of the Republic of Kazakhstan, in order to ensure uniformity in the application of criminal legislation on necessary defense, the plenary session of the Supreme Court of the Republic of Kazakhstan

      p o s t a n o v l I e t:

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. In this regard, in cases of causing death or injury to health, it is necessary to take into account the provisions of Article 32 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) on necessary defense and its limits and carefully clarify the purpose, motive, form of guilt, method of committing a criminal offense and other circumstances relevant for the correct qualification of the act.

All persons have the right to the necessary defense equally, regardless of their professional or other special training and official position, gender, age and other circumstances. A person has the right to the necessary defense, regardless of which object protected by law has been subjected to a socially dangerous encroachment, whether this object belongs personally to the defender or to other persons, and regardless of the possibility of avoiding a socially dangerous encroachment or seeking help from other persons or government agencies.

In order to recognize a person as being in a state of necessary defense, it is necessary to establish that a socially dangerous encroachment has taken place and that this encroachment served as the basis for the person to commit acts involving death or injury to the attacker in order to prevent or repel this encroachment.

      Such an encroachment is considered socially dangerous, which is aimed at harming socially significant values, the defending person or other persons, the interests of society and the state, protected by law. Accordingly, the objects of protection during necessary defense may be human rights, i.e. his life, health, sexual integrity, honor and dignity, property, housing, land and other rights belonging to both the defender and others, as well as the interests of society and the state.

An encroachment from which a person has the right to defend himself may be intentional and careless, it may contain elements of a criminal offense or not be criminal, however, these circumstances do not affect the defender's right to defend himself, since the defender equally has the right to defend himself from intentional or careless encroachment coming from a person subject to criminal responsibility and directly from an insane person. or from a person who has not reached the age from which criminal liability begins.

      Harm can be considered committed in a state of necessary defense if it was inflicted on the very person who committed the socially dangerous assault (including in cases where he used equipment, animals, the insane, or minors).

The necessary defense is permissible not only when harm has already been caused by intentional or careless actions of the attacker, but also when harm has not yet begun, but a real threat of harm has been created (for example, preparatory actions have been performed to carry out an encroachment, etc.) or when the encroaching person has not yet finished committing illegal actions (continues to beat, has not had time to take out the stolen from the apartment), as well as when the defense followed immediately after the act of encroachment, which was actually completed., but due to the circumstances of the case, the moment of its end was not clear to the defender. When assessing these situations, it should be based on how obvious the moments of the beginning and end of the assault were for the accused, and whether he could correctly assess the situation in the current situation.

A person who has caused harm to another person in connection with the commission of actions by the latter that formally contain signs of a criminal offense, but because of their insignificance did not pose a public danger, as well as a person who, by his behavior, specifically caused (provoked) an attack in order to then use this situation as a reason for committing illegal acts, cannot be recognized as being in a state of necessary defense. actions (for example, starting a fight, committing violence, committing an act of revenge, etc.).

      If the person who committed the provocation did not actually cause harm, then there is no reason to regard the response of the provoked person as committed in a state of necessary defense. Such actions entail liability on general grounds.

      Also, actions of a person aimed at countering someone who himself was in a state of necessary defense or acts lawfully in other cases (for example, when detaining a criminal) cannot be considered as necessary defense.

It is necessary to distinguish necessary defense from imaginary defense. In an imaginary defense, a socially dangerous encroachment is actually absent in reality, but the situation of the incident gives the defender reason to believe that it is being committed and, therefore, he mistakenly believes that he is acting against such an encroachment.

      For damage caused during imaginary defense, criminal liability occurs only in the presence of the following circumstances: 1) when the harm-doer reasonably believed, in connection with the current situation, that he was acting in a state of necessary defense, but at the same time exceeded its limits; 2) when, with due care, the harm-doer could correctly assess the situation and conclude that there was no socially dangerous encroachment (for example, he saw a stranger leaving the neighbors' apartment with a bag and, thinking that theft had been committed, caused harm, and the victim turned out to be a relative of the neighbors).

      In such cases, the person is responsible according to the rules of factual error, i.e. for causing harm to the law enforcement facilities of the relevant persons through negligence.

Harming a person who has not actually committed, but in the opinion of the defender, could have ever committed a socially dangerous encroachment, does not form the necessary defense, since the act is aimed at harming an indefinite circle of people, and not at reflecting a specific socially dangerous encroachment coming from a certain person (for example, harming someone who happens to be nearby to a person as a result of the explosion of a device installed by the owner of the garden to prevent fruit theft).

In accordance with the first part of Article 32 of the Criminal Code, harming a person who has committed a socially dangerous offense in a state of necessary defense does not constitute a criminal offense and does not entail criminal liability, unless the limits of necessary defense have been exceeded.

      Exceeding the limits of necessary defense should be understood as deliberate actions that clearly do not correspond to the nature and degree of public danger of the encroachment. An obligatory consequence of such actions to repel or suppress an encroachment is the infliction of clearly excessive harm to the attacker, which is not caused by the situation.

      In order to correctly establish the limits of necessary defense and establish the conformity /inconsistency of the encroachment and protection against it, it is necessary to establish and evaluate in each case: the nature of the encroachment, its social danger, the intensity of the encroachment, the correspondence / inconsistency of the degree of protection to the attack, the essence of the harm caused to the encroaching person, the evidence (evidence) of the excess of the harm caused, the situation causing / not causing causing such harm, etc.

When assessing the nature of an encroachment, one should take into account the direction of the attacker's actions, the content of the harm caused by him, which may be physical, property or moral.

      The degree of a socially dangerous assault is determined by its nature, as well as the activity of the attackers, their numbers, age characteristics, the presence of weapons and other specific circumstances.

The correspondence of the defense to the nature and degree of public danger of the encroachment presupposes that the defender must take into account the real balance of his forces and those of the attacker and, taking into account all the circumstances, must not allow harm to be inflicted more than is necessary to prevent the encroachment. At the same time, the discrepancy between the harm that was intentionally caused to the defenders and the size and nature of the harm caused to the attackers, or the harm that could have been caused to them, entails criminal liability only if there is an obvious, obvious absence of the need to cause such harm in order to exercise the right to defense.

When assessing the conformity of attack and defense, parts two and three of Article 32 of the Criminal Code should be taken into account, which provides for cases of necessary defense in which harm to an encroaching person does not entail criminal liability. The legislator provides for the direction of an encroachment against human life, as well as the armament of a person when encroaching on other objects protected by law, as circumstances in which the harm inflicted on the intruder is always recognized as appropriate to the nature and degree of public danger of the encroachment, regardless of the nature of the harm inflicted on the attacker. Such acts are considered to have been committed within the limits of necessary defense, and do not entail criminal liability.

      Under the weapon, the presence of which in the attacker is a circumstance that precludes exceeding the limits of necessary defense, it is necessary to recognize items classified by the Law of the Republic of Kazakhstan dated December 30, 1998 "On State control over the turnover of certain types of weapons" to firearms or cold weapons, ammunition, which can cause death to a person.

     If the attacker is armed with other objects, for example, household and other purposes (hammer, axe, kitchen knife, sprayers with tear or other irritating substance, stones, sticks, bricks, etc.), liability for damage caused is excluded only on condition that the limits of necessary defense have not been exceeded.

     The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

The criminal legislation of the Republic of Kazakhstan establishes responsibility for causing, with necessary defense, not any harm, but only that caused by intentional actions. In this regard, criminal offenses committed while exceeding the limits of necessary defense are subjectively characterized only by an intentional form of guilt. If the harm to the intruder was caused as a result of negligence, then the criminality and punishability of such an act is excluded.

Responsibility for causing harm during necessary defense occurs only when the defender's act contains signs of criminal offenses provided for in Articles 102 of the Criminal Code (murder committed while exceeding the limits of necessary defense), 112 of the Criminal Code (causing serious harm to health while exceeding the limits of necessary defense). It follows from this that causing minor or moderate harm to the attacker's health when exceeding the limits of necessary defense does not entail criminal liability.

In order to resolve the issue of criminal liability for an act committed with the necessary defense, but exceeding its limits, the provision on the exemption of such persons from criminal liability, enshrined in article 66 of the Criminal Code, is important. This provision of the criminal law provides for the possibility of releasing a person from criminal liability on non-rehabilitative grounds if exceeding the limits of necessary defense was caused by fear, fright or confusion that arose in the defender in connection with a socially dangerous encroachment.

      When applying this rule, it should be borne in mind that the legislator provides as a basis for releasing a person from criminal liability his emotional and mental state, which is characterized by fear or fright, as well as the inadequacy of his actions as a result of confusion caused by a socially dangerous encroachment, and connects these circumstances with the circumstances of the case. It follows from this that article 66 of the Criminal Code only allows for the possibility of releasing a person who has exceeded the limits of necessary defense as a result of fear, fright or confusion from criminal liability, but does not provide for these circumstances as an absolute condition entailing the mandatory, indispensable release of a person from criminal liability, i.e. is optional.

The fear of a person who has been attacked and caused harm to an intruder with the 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.

To clarify the question of whether the defender was in a state of fear, fright or confusion, whether such a condition affected his ability to assess his defensive actions and act within the limits of necessary defense, it is necessary to conduct a forensic psychological and psychiatric examination, the conclusion of which should be evaluated in conjunction with other evidence and the specific situation that has developed as a result of the commission socially dangerous encroachment and actions to protect against it.

      In this regard, in each specific case, it is necessary to carefully clarify and establish the circumstances of the commission of a criminal offense (the time and place of the offense, the number of assailants and defenders, the presence of objects used in the attack, age, physical development and mental state of the parties, etc.), bearing in mind that depending on the prevailing situation In some cases, a person who has exceeded the limits of necessary defense as a result of fear, fright, or confusion may be released from criminal liability, while in others - not.

When assessing the situation in which harm has been caused to the attacker, it should be borne in mind that the defender, in a state of agitation caused by the encroachment, cannot always accurately assess the nature of the danger and choose proportionate means of protection. Therefore, the transfer of objects used as weapons in a socially dangerous encroachment from the attacker to the defender may not in all cases indicate that the limits of necessary defense have been exceeded. In such cases, the nature of the subsequent actions of the attacker and the defender and other circumstances should be taken into account.

     The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

It is necessary to distinguish between murder and causing serious harm to health when exceeding the limits of necessary defense against the same actions committed in a state of passion. At the same time, it should be borne in mind that in a state of necessary defense, including when exceeding its limits, the perpetrator is guided by the desire to provide protection from socially dangerous encroachment, and in a state of passion he acts with intent to harm the person who committed the act that caused the passion. To determine the mental state of a person at the time of the commission of these acts, it is necessary to conduct a forensic psychological and psychiatric examination, the conclusion of which must be evaluated in conjunction with other evidence.

      If the perpetrator exceeded the limits of necessary defense and at the same time was in a state of strong mental agitation caused by the unlawful actions of the victim, then the act should be recognized as committed when exceeding the limits of necessary defense and, depending on the consequences, should be qualified under Article 102 of the Criminal Code or Article 112 of the Criminal Code.

The commission of premeditated murder or causing serious harm to health when exceeding the limits of necessary defense, even in the presence of circumstances provided for in paragraphs two of Article 99 of the Criminal Code, should be qualified under Article 102 of the Criminal Code or, accordingly, under Article 112 of the Criminal Code.

Having established that the criminal offense was committed by the defendant in a state of defense, the court in the verdict should not be limited to general formulations, but, taking into account the specific circumstances of the case, indicate by whom and what socially dangerous encroachment was committed, against whom it was directed, its nature and method of commission, what the attacker was armed with, what means and methods the defendant defended himself., etc., what evidence confirms this, as well as indicate how the discrepancy between the means of protection and the nature and danger of the encroachment was expressed., indicating that the limits of necessary defense have been exceeded.

When considering cases of criminal offenses committed while exceeding the limits of necessary defense, the courts in each specific case should discuss the possibility of releasing defendants from criminal liability in the presence of circumstances provided for by the Criminal Code. When passing a guilty verdict with sentencing, the courts need to discuss the issue of imposing a non-custodial sentence, and motivate its non-application in the verdict.

When considering civil claims filed in criminal cases on criminal offenses committed while exceeding the limits of necessary defense, one should be guided by the norms of Chapter 20 of the Criminal Procedure Code of the Republic of Kazakhstan, Chapter 47 of the Special Part of the Civil Code of the Republic of Kazakhstan, and the explanations given in the regulatory resolution.  The Supreme Court of the Republic of Kazakhstan No. 1 dated June 20, 2005 "On consideration of a civil claim in criminal proceedings".

According to  According to Article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.

Chairman of the Supreme Court

Republic of Kazakhstan

Judge of the Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases