NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of May 11, 2007 No. 2

About application of the legislation on justifiable defense

Due to the change of the penal legislation of the Republic of Kazakhstan, for the purpose of ensuring uniformity in application of the penal legislation about justifiable defense, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

1. Justifiable defense is the inherent constitutional right of everyone on protection against socially dangerous infringement of life, health, property, the dwelling, property and other rights and interests of the person protected by the law. In this regard, in case of production on cases on causing death or harm to health it is necessary to consider provisions of article 32 of the Criminal Code of Kazakhstan (далееУК) about justifiable defense and its limits and to carefully find out the purpose, motive, the fault form, method of crime execution and other circumstances important for the correct qualification of act.

2. All persons, irrespective of their professional or other special training and official position, sex, age and other circumstances have the right to justifiable defense equally. Person has rights to justifiable defense irrespective of on what the object protected by the law socially dangerous encroachment is made whether this object personally defending or to other persons belongs, and also irrespective of opportunity to avoid socially dangerous encroachment or to ask for the help other persons or state bodies.

3. For recognition of person being in condition of justifiable defense it is necessary to determine that making of socially dangerous encroachment took place and that this encroachment formed the basis of committing by person of the actions integrated to causing death or harm to health to the attacker for prevention or reflection of this encroachment.

Such encroachment which is directed to damnification to socially important values of the defending person or other persons, the interests of society and state protected by the law is recognized socially dangerous. Respectively, and human rights, i.e. his life, health, sexual integrity, honor and advantage, property, the dwelling, the parcel of land and other rights belonging as most defending, and to other persons, and also interests of society and state can be subjects to protection in case of justifiable defense.

4. Encroachment from which the person has the right to be protected can be intentional and careless, it may contain actus reus or not to be criminal, however these circumstances do not influence the right defending to be protected as defending equally has the right to be protected from the intentional or careless encroachment which is proceeding from the face, subject to criminal liability and is direct from deranged or from the face, not reached age from which there comes criminal liability.

Damnification can be acknowledged committed in condition of justifiable defense if it is caused to that person who made socially dangerous encroachment (including in cases of use of the equipment by it, animal, deranged, juvenile).

5. Justifiable defense is admissible not only when intentional or reckless acts of the attacker already do harm, but also when damnification is not begun yet, but the real threat of its causing (for example, preparatory actions for encroachment implementation, etc. are made) or when encroaching did not finish making of illegal actions yet (continues to beat, did not manage to take out stolen property from the apartment) is created as well as when protection followed directly the act of encroachment which was actually finished, but based on the circumstances of a matter the moment of its termination was not clear for defending. In case of assessment of the specified situations it is necessary to proceed from this how explicit were for the beginning charged the moments and the ends of encroachment whether it could in specifically developed situation correctly to assess situation.

6. Person which did harm to other person in connection with the making by the last of the actions which are formally containing essential elements of offense, but owing to insignificance not constituting public danger being in condition of justifiable defense cannot be recognized and also person who the behavior specially caused was (provoked) by attack that then to use this situation as reason for making of illegal actions (for example, to sweep unleashing of fight, uchineny punishments, making of the act, etc.).

If person who made provocation really did not do harm, then the bases to regard response actions of the provoked person as made in condition of justifiable defense is not available. Such actions attract responsibility in accordance with general practice.

Also cannot be considered as justifiable defense of action of person, directed to counteraction to the one who was in condition of justifiable defense or acts legally in other cases (for example, during detention of the criminal).

7. It is necessary to distinguish justifiable defense from imaginary defense. In case of imaginary defense socially dangerous encroachment actually in reality is absent, but the situation of incident gives the grounds defending to consider that it is made, and he with respect thereto mistakenly believes that he acts against such encroachment.

For the harm done in case of imaginary defense, criminal liability comes only in the presence of the following circumstances:

1) when the causer of harm in connection with the developed situation reasonably believed that he acts in condition of justifiable defense, but at the same time exceeded its limits;

2) when in case of due attentiveness the causer of harm could estimate correctly situation and draw conclusion on lack of socially dangerous encroachment (for example, saw the stranger leaving the apartment of neighbors with bag and, having thought that theft is committed, did harm, and the victim was the relative of neighbors).

In such cases person bears responsibility by rules about the actual mistake, i.e. for damnification to the right protected objects of the corresponding persons on imprudence.

8. Damnification to person who in reality did not make, but, according to defending could make ever socially dangerous encroachment, does not form justifiable defense as act is directed to damnification to the uncertain group of people, but not to reflection of the specific socially dangerous encroachment proceeding from certain person (for example, damnification to the person who accidentally was near as a result of explosion of the device established by the owner of garden for prevention of plunder of fruit).

9. According to part one of article 32 UK causing in condition of justifiable defense of harm to person who made socially dangerous encroachment does not form actus reus and does not attract criminal liability if at the same time exceeding of limits of justifiable defense was not allowed.

It is necessary to understand the intentional actions which obviously are not corresponding to nature and degree of public danger of encroachment as exceeding of limits of justifiable defense. Obligatory consequence of such actions for reflection or suppression of encroachment is causing to the attacker of obviously excessive, not caused by situation harm.

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