What is considered an excess of self-defense?
Necessary self-defense is considered to be actions aimed at protecting one’s life, health and property, as well as protecting family and friends.
Self-defense is permissible if:
- the actions of criminals are dangerous to society;
- an attacker encroaches on your health or property;
- there was a real attack;
- during defense, the victim harms only the attacker and not anyone else.
Note!
The law does not prohibit defending yourself if someone attacks. But the victim’s actions in this case should not exceed acceptable standards. A victim may be considered a criminal if, through self-defense, she caused more harm to her attacker than was necessary.
In the Criminal Code, cases of excess of self-defense are dealt with in Article 114 and Article 108 if the attacker was killed.
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Self-defense will be exceeded when:
- caused more harm to the criminal than he did;
- the citizen was intentionally harmed;
- the victim provoked the attacker.
To avoid punishment, it is necessary to prove in court that the citizen defended himself. In addition, if the criminal is wounded, you cannot abandon him and run away. Leaving someone in danger is also a crime.
Note!
A person will not be punished if, during self-defense, he could not be responsible for his actions and adequately assess the situation, since he was in a state of passion.
Prosecution
In order for the accused to be prosecuted under the above-mentioned articles, it must be proven that he is aware of the fact that the defense exceeds the degree of threat posed by the attacker. When examining the fact of self-defense for signs of its excess, law enforcement officers do not have the right to accuse a person of not trying to resolve the issue peacefully without the use of force.
Self-defense is acceptable for various types of crimes; you should report the harm caused if your actions caused significant harm to a person, and his health is now in danger. It is very important to proceed to first aid, and if you lack the ability and skills to do this, you need to call doctors.
Ignoring the need for such actions when considering a case will be called an aggravating circumstance by the court.
Defense is a right granted to a person, so there is no need to report it to the police or other government agency; this can only be done for the subsequent correct opening of a criminal case, which can be initiated as a result of an attack or excess of self-defense.
Excess of self-defense - Article 114 of the Criminal Code of the Russian Federation
The extent of liability for exceeding self-defense depends on the consequences. Article 114 of the Criminal Code of the Russian Federation considers cases of causing serious harm to the health of an attacker or harm of moderate severity. The sentence under this article does not exceed 1 year.
The following is acceptable as punishment:
- imprisonment for a maximum of one year;
- corrective or forced labor for a period of up to one year.
Correctional labor takes place at the place of employment of the accused, and forced labor is considered a substitute for imprisonment. For forced labor, a person is sent to a correctional center. Such a center may be located in another region.
According to Article 50 of the Criminal Code of the Russian Federation, during correctional work, the state withholds from 5 to 20% of the convict’s salary.
Jobs cannot be assigned:
- pregnant women;
- women who have children under 3 years of age;
- military personnel;
- disabled people of group 1.
If a convicted person deliberately evades correctional labor, the court has the right to sentence him to forced labor or imprisonment. When it turns out that the harm to health was caused intentionally, the sentence can be up to two years.
Acceptable actions of self-defense under Article 114 of the Criminal Code of the Russian Federation are those that do not entail serious bodily harm to the attacker. There will also be no punishment if slight harm to the offender’s health is caused.
Arbitrage practice
- In March 2021, a 29-year-old resident of Yelets was accused of intentionally causing grievous harm to well-being by exceeding the limits of sufficient self-defense. The accused stabbed her partner in the chest with a knife after he beat her while intoxicated. After this, the woman called an ambulance. At the meeting, she admitted guilt, repented of her actions, and described in detail the circumstances of that evening. The court imposed a sentence of imprisonment for 1 year.
- In August 2021, a resident of Krasnokamsk was convicted of exceeding the limits of sufficient self-defense. At night, a stranger entered the victim’s private house, broke gas appliances, opened the stove burners, and then told the awakened owners that he was armed. The owner of the house hit the man hard, after which the family called an ambulance. In the hospital, the stranger died 7 hours later. Doctors found out that the attacker had been registered at a drug dispensary for a year. When he came out of the binge, he developed delirium tremens. In an insane state, he made his way into a private house. The punishment for exceeding self-defense is 8 months of restriction of freedom and 500 thousand rubles in favor of the relatives of the attacker. The owner of the house was unable to appeal the verdict.
- In January 2010, a woman from Nizhny Tagil killed a man who unexpectedly broke into her house at night with an acquaintance and shot her sister with a traumatic pistol. The pre-investigation investigation established that the actions taken were necessary self-defense, since, being in a state of fright, the woman was not able to assess the degree of the threat.
Excess of self-defense resulting in death - Article 108 of the Criminal Code of the Russian Federation
If an attacker is killed during self-defense, liability is provided under Article 108 of the Criminal Code of the Russian Federation.
Excess of self-defense resulting in death is punishable by imprisonment, as well as correctional or forced labor. The sentence in this case can reach two years.
For murder that occurred during the arrest of a criminal, the same penalties are provided, but for up to three years.
A murderer will not be punished under Article 108 of the Criminal Code of the Russian Federation if:
- a real attack was made on a citizen and he was forced to defend himself;
- the murder was committed in a state of passion.
If the crime is recognized as murder by negligence, then punishment may be avoided depending on the decision of the court.
What is taken into account in court
If self-defense resulted in the death of the attacker or injury to health, the court will consider the following circumstances:
- the relationship between the possible or inflicted harm of the offender and the response of the victim;
- nature of the danger: attack with a knife, attempted rape;
- physical characteristics of the victim and the offender;
- other circumstances: number of attackers, age, presence of weapons.
An important factor in the case will be the mental state of the victim at the time of the crime. The court takes into account the fact that a person responded in a state of passion. In fact, he could not adequately assess the situation.
In judicial practice there are cases when:
- the criminal stopped threats and other attacks, but was still killed;
- the person was provoked into attack;
- the victim had the weapon, not the perpetrator. In this case, it will not be defense, but an attack on an unarmed person;
- the criminal was killed after he was apprehended or neutralized.
Note!
Defense must be equivalent to attack. It is prohibited to use a pistol or knife against an unarmed criminal.
The concept of necessary defense and exceeding its limits
The concept of “necessary defense” is given in Article 37 of the Criminal Code of the Russian Federation. This is the protection of oneself, one’s rights, personality and the rights of other persons, as well as the legitimate interests of society and the state from encroachment associated with life-threatening violence or the threat of such violence. Any actions falling under this definition are considered lawful regardless of the consequences.
If the defense against assault did not take place against the background of life-threatening violence or the threat of such violence, then a mandatory condition for the absence of criminal liability is that the limits of necessary defense are not exceeded.
The limits of necessary self-defense according to Part. 2 and 2.1 art. 37 of the Criminal Code of the Russian Federation:
- The actions of the defender corresponded to the nature and danger of the attack.
- The attack was so unexpected (sudden) that the defender could not objectively assess the degree of danger and the nature of the attack.
If one of these conditions exists, then the defense must be recognized as lawful regardless of the consequences that occur, including killing or harming the attacker.
Recognition of a defense as lawful does not depend on:
- special or professional skills of the defenders, for example, mastery of self-defense techniques or martial arts;
- the ability to call someone for help, report an attack to the authorities, and avoid an attack.
All of the above are formal definitions and interpretations. Unfortunately, in life very often everything goes beyond these formal boundaries, and each situation requires its own individual analysis. There is one more aspect: what may be perceived by society or subjectively as fair is often not legal according to the Criminal Code of the Russian Federation.
Judicial practice has its influence on the assessment of the necessary defense and exceeding its limits. A lot depends on how professionally the investigation was carried out, all the circumstances of the incident were studied and they were given the correct assessment and qualification. In turn, investigative and judicial assessments of what happened very seriously depend on what the person defending himself will say, as well as possible eyewitnesses of the incident. In this situation, in no case should qualified legal assistance be neglected, and it is better not to give any official testimony without a lawyer.
Is it possible to protect another person?
The concept of “self-defense” is not limited only to protecting one’s life and health. The law states that self-defense also includes protecting other people if they are in real danger.
In this case, it is important to prove in court that the attacker was harmed while the victim was protecting others. The victims themselves can act as witnesses.
Note!
According to the law, it is only allowed to defend oneself, but to carry out lynching of a criminal is not.
Conditions for exemption from liability
To prove your innocence you need to find witnesses to the incident. Evidence may also include:
- recordings from CCTV cameras or car DVRs;
- recordings from a voice recorder;
- physical evidence - a weapon with the fingerprints of the attacker.
The court takes into account that during actual self-defense there was no motive to intentionally harm a person. An important indicator will be the mental state of the victim at the time of the crime. If an attack on a person occurs suddenly, this leads to an increase in the instinct of self-preservation.
Article 66 of the Criminal Code of the Russian Federation provides for circumstances under which a citizen is exempt from liability for exceeding self-defense. There will be no punishment if the victim defended himself in a state of passion or the actions of the offender were socially dangerous.
During the trial, the circumstances of the case are taken into account: location, number of attackers, age of the participants in the crime, physical characteristics. Only the court has the right to exempt from criminal liability.
Additional features and nuances
If a person intentionally provokes another person to attack himself in order to use force and commit illegal acts, then these circumstances do not constitute necessary self-defense. They qualify on a general basis.
If the attack was unexpected, then the defender had no opportunity to assess the degree of danger. In such a situation, regardless of the victim’s actions, they will not exceed the necessary defense. The court will determine whether the attack was truly unexpected. To do this, he will find out all the circumstances and the emotional state of the victim at that time.
Experts have compiled a short reminder on what a person should do if he is attacked:
- if possible, you need to run away and hide, try to attract the attention of witnesses;
- if there is nowhere to run, you need to defend yourself, and for an attack it is recommended to use objects that the court will not be able to classify as weapons in the future (green paint, flour, pepper spray);
- if the attacker has a weapon, the victim has the right to use all possible methods of self-defense;
- if damage to life and health is caused by law enforcement officers, then the court may classify self-defense as resistance to these persons, so it will be necessary to find witnesses who will prove the unlawfulness of the attackers’ actions.
The person defending himself has the right to use “self-defense weapons” that do not require a license: pepper spray, weapons with traumatic or flash cartridges, gas sprayers, stun guns. But these types of weapons cannot be used against women, children, disabled people (and attackers if they have signs of disability), with the exception of protection from a group of attackers or if the criminals are armed.
After this, you need to immediately call an ambulance - this action will prove that the defender did not plan to harm the person. Then you should call the police, but it is advisable not to provide any evidence until the lawyer arrives.
