of December 20, 1996 No. 39
About application by courts of the legislation providing the right to justifiable defense from socially dangerous encroachments
The right to justifiable defense affirmed in article 37 UK of the Republic of Uzbekistan is the important sales warranty of the constitutional regulations on integrity of human beings, the dwelling and property of citizens, provides conditions for accomplishment by citizens of their constitutional and public concerns. It obliges courts to observe strictly the legislation on justifiable defense when implementing justice.
Showed studying of court practice that courts generally correctly apply the legislation on justifiable defense. At the same time by consideration of specific criminal cases many mistakes are still made. Sometimes courts incorrectly consider that citizens have the right to perform justifiable defense only in case of infringement of them whereas the legislation on justifiable defense extends also to cases of protection of interests of state-owned property, public order, life, honor and advantage of other citizens.
Some courts mistakenly recognize that the person which was attacked, having no right to be protected actively if has opportunity to escape, ask for the help citizens, to public agents or to choose any different ways which do not have character of active counteraction to encroaching.
Estimating actions of the citizens reflecting socially dangerous encroachments separate courts do not take into account nature and danger of encroachment, its suddenness, intensity, possibilities of the attack defending on reflection, and proceed only from weight of damage suffered that leads to the wrong condemnation of persons acting in condition of justifiable defense.
Courts not always fulfill requirements of the law on punishment individualization, pronouncing unreasonably deterrent sentences concerning persons found guilty of making of crimes in case of exceeding of limits of justifiable defense without the defendants this about the personality and other facts of the case.
For the purpose of elimination of noted shortcomings and in connection with the questions which arose in court practice, the Plenum of the Supreme Court of the Republic of Uzbekistan decides:
1. Explain to courts that under socially dangerous encroachment, protection against which is admissible within article 37 UK, it is necessary to understand the act provided by the Special part of the Criminal code irrespective of whether person who made it is involved in criminal liability or it is exempted from it in connection with diminished responsibility, not achievement of return of criminal prosecution or on other bases.
2. Explain that the condition of justifiable defense arises not only at the moment of socially dangerous encroachment, but also in the presence of real threat of attack. The condition of justifiable defense can take place and when protection followed directly the act at least and the ended encroachment, but based on the circumstances of a matter the moment of its termination was not clear for defending. Transition of weapon or other objects used during attack from encroached to defending in itself cannot demonstrate the end of encroachment.
The action defending, which did harm to encroaching cannot be considered committed in condition of justifiable defense if harm is done after encroachment was prevented or ended and in application of remedies need obviously disappeared.
In these cases responsibility comes in accordance with general practice.
For the purpose of the correct legal evaluation of such actions of the defendant courts taking into account all situation of incident shall find out whether these actions in condition of suddenly arisen heat passion caused by socially dangerous encroachment are made by it.
3. Courts shall mean what cannot be acknowledged being in condition of justifiable defense person who provoked attack to use it as occasion for the purpose of damnification (unleashing of fight, uchineny punishments, making of the act to sweep, etc.). The deeds in such cases shall be qualified in accordance with general practice.
4. In law sense exceeding of limits of justifiable defense only explicit, obvious discrepancy of protection to nature and danger of encroachment when encroaching needlessly intentionally the harm specified in articles 100 and 107 UK is done is recognized. Causing encroaching in case of reflection of socially dangerous encroachment of harm on imprudence cannot attract criminal liability.
5. Resolving issue of availability or lack of signs of exceeding of limits of justifiable defense, courts shall consider not only compliance or discrepancy of remedies and attack, but also nature of the danger threatening defending, its forces and opportunity for encroachment reflection, and also all other circumstances which could affect real ratio of forces encroaching and protected, (quantities the encroaching and defending, their age, physical development, weapon availability, the place and time of encroachment, etc.). When making encroachment by group of persons defending having the right to apply to any of forwards of measure of protection which are determined by danger and nature of actions of all group.
6. Courts should mean that in condition of the sincere nervousness caused by encroachment, defending not always nature of danger can precisely weigh and choose proportional remedies. The action defending cannot be considered as made with exceeding of limits of justifiable defense and in that case when the harm done to them was big, than the harm prevented and that which was sufficient for prevention of attack if at the same time explicit discrepancy of protection to nature and danger of encroachment was not allowed.
7. The intentional heavy bodily harm caused in case of exceeding of limits of justifiable defense and which entailed death encroaching in relation to which the wine defending was careless should be qualified under article 107 UK.
8. Courts shall delimit murder, causing heavy or average weight of bodily harm in case of exceeding of limits of justifiable defense from premeditated murder, intentional causing heavy or average weight of bodily harm in condition of suddenly arisen heat passion, meaning that damnification to the victim not for the purpose of protection and, therefore, not in condition of justifiable defense is characteristic of the crimes committed in condition of heat passion. Besides, obligatory sign of the crimes committed in condition of suddenly arisen heat passion caused by actions of the victim (Article 98, 106 UK), is damnification under the influence of such nervousness whereas for the crimes committed in case of exceeding of limits of justifiable defense, this sign is optional.
If defending exceeded limits of justifiable defense in condition of suddenly arisen heat passion, actions of the guilty person should be qualified under articles 100 or 107 UK.
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