of September 27, 2012 No. 19
About application by courts of the legislation on justifiable defense and damnification during detention of person who committed crime
Ensuring protection of the personality, society and state from socially dangerous encroachments is important function of the state. For its realization the Criminal Code of the Russian Federation not only determines what acts are recognized crimes, but also establishes the bases for recognition lawful damnification to persons encroaching on the social values protected by the penal statute. In particular, justifiable defense (article 37 Criminal Code of the Russian Federation) and detention of person who committed crime (article 38 Criminal Code of the Russian Federation) belong to such bases.
The criminal precept of law about justifiable defense, being one of sales warranties of the constitutional regulations that everyone has the right to protect the rights and freedoms by all methods which are not forbidden by the law (part 2 of article 45 of the Constitution of the Russian Federation) provides protection of the personality and it is right defending, other persons, and also protection of the interests of society or state protected by the law against socially dangerous encroachment.
Detention of person who committed crime for the purpose of its delivery in authorities acts as one of means of ensuring of inevitability of criminal liability and suppression of making of new crimes by it.
Institutes of justifiable defense and damnification during detention of person who committed crime are urged to provide balance of the interests connected with realization of the tasks of the penal legislation provided in part 1 of article 2 Criminal Code of the Russian Federation on protection of social values, on the one hand, and with possibility of lawful causing harm by it - with another. For this purpose in articles 37 and 38 Criminal Code of the Russian Federation conditions in the presence of which the actions which did this or that harm to objects of criminal legal protection do not form crime are established.
The international community, recognizing forced nature of such harm, also aims to minimize it. According to article 2 of the Convention on human rights protection and fundamental freedoms of 1950 deprivation of life is admissible only when it is caused by protection of person against illegal violence, and also for implementation of legal detention or prevention of escape of person taken into custody on legal causes.
Taking into account the importance of provisions of articles 37 and 38 Criminal Code of the Russian Federation for providing guarantees of the rights of persons which are actively protecting the rights or the rights of other persons protected by the law interests of society or state from socially dangerous encroachments for the prevention and control of offenses and also in connection with the questions arising at courts during application of the specified regulations, the Plenum of the Supreme Court of the Russian Federation for the purpose of forming of uniform court practice and being guided by article 126 of the Constitution of the Russian Federation and Articles 9, 14 Federal constitutional Laws of February 7, 2011 No. 1-FKZ "About courts of law in the Russian Federation",
1. Draw the attention of courts that provisions of article 37 Criminal Code of the Russian Federation equally extend to all persons who are in limits of operation of the Criminal Code of the Russian Federation irrespective of professional or other special training and official position, from whether harm in case of protection of the rights or rights of other persons protected by the law of interests of society or state is done by person and also irrespective of opportunity to avoid socially dangerous encroachment or to ask for the help other persons or authorities.
2. Regarding 1 article 37 Criminal Code of the Russian Federation socially dangerous encroachment integrated to violence, life-threatening the defending or other person represents act which at the time of its making created real danger to life of the defending or other person. Can confirm availability of such encroachment, in particular:
damnification to health, the defending or other person creating real threat for life (for example, wounds of vitals);
application of method of the encroachment creating real threat for life of the defending or other person (use of weapons or the objects used as weapon, suffocation, arson, etc.).
The direct threat of use of violence, the life-threatening defending or other person, can be expressed, in particular, in statements about intention to immediately cause to the defending or other person death or harm to health, life-threatening, to demonstration by the forward of weapon or the objects used as weapon, destructive devices if taking into account specific situation there were bases to be afraid of implementation of this threat.
3. It is necessary to understand making of socially dangerous acts integrated to violence, not life-threatening the defending or other person as encroachment, protection against which is admissible in the limits set by part 2 of article 37 Criminal Code of the Russian Federation (for example, beating, causing lung or average weight of harm to health, the robbery made using violence, not life-threatening or health).
Besides, such encroachment is making and other acts (actions or failure to act), including on imprudence, provided by the Special part of the Criminal Code of the Russian Federation which, though are not integrated to violence, however taking into account their content can be prevented or stopped by causing encroaching harm. Intentional or careless destruction or damage of alien property, reduction in worthlessness of critical infrastructure, vehicles or means of communication belong to such encroachments, for example.
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