In an extreme situation, when there is a direct threat to your life, it is very difficult to control yourself. People sometimes really lose their heads out of fear, and the only thing they think about at such moments is how to escape. Therefore, deaths, unfortunately, cannot be excluded.
But murder in self-defense, even if a person was simply defending himself, will not go unpunished. In this article we will talk in detail about self-defense, or more precisely about its unintended consequences.
If you killed a person in self-defense
In the Criminal Code of the Russian Federation there is such an article as 108, about exceeding the limits of necessary defense. It is quite small, with only two points, which, frankly, are not nearly as informative as we would like.
They concern murders committed when measures aimed at self-defense were exceeded, as well as murders committed during the detention of a person. The punishment for them will be correctional labor or imprisonment for up to 2 or 3 years, respectively. Punishment with forced labor for the same period is possible.
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Where is the line between lawful actions and complete atrocity?
Please keep the following in mind:
- The legislation provides only general principles, since it is simply unthinkable to describe all specific situations that arise or may arise in life.
- Judges have their own position on these issues - the same Supreme Court and the Russian Federation, and the RSFSR has more than once expressed various interpretations related both to the general features of necessary defense and to specific situations (when criminal cases reached the Supreme Court on appeal, considered by lower courts).
- In addition, law enforcement agencies also have a position when deciding whether to initiate a criminal case or whether to issue a decision to refuse to initiate one.
As a result, only one thing can be said: it is necessary to accurately determine the line separating lawful actions from a crime individually. The law only speaks of disproportionality - but what exactly it will be expressed in will be decided in each specific case first by the investigator and then by the court.
It is hardly possible in principle to give accurate and suitable indicators for any situation of what is considered necessary defense and what is exceeding its limits.
Corpus delicti
As already mentioned, a crime under Article 108 of the Criminal Code of the Russian Federation will be committed when a person commits actions that will be considered an excess of necessary self-defense. For a clearer understanding of such a concept as necessary self-defense, it is worth referring to Resolution of the RF Armed Forces No. 19.
- Firstly, the means of self-defense must be consistent with those used by the attacker . For example, using a bladed weapon against a person who used only his physical strength will be regarded as violating the boundaries of what is permitted for self-defense (and this is at best).
- Secondly, the threat to health and life must be quite significant , taking into account the fact that the Resolution separately stipulates this nuance: it does not matter what skills and what physical training the victim has. An attack with a knife is a significant threat both to an ordinary person and to someone who has taken special self-defense courses.
- Thirdly, a violation of the norms of self-defense is also when the attacker no longer poses any threat (stunned, immobilized, or simply calmed down), and the victim continues to “defend” himself, causing additional damage to the person.
- Fourthly, self-defense is not such if a person was the first to go into conflict, provoking the attacker .
- Fifthly, the law allows the deprivation of the life of an aggressor only if it was the last resort to save one’s own life . Otherwise, the court will consider it not as an excess of self-defense, but as murder.
These were the most basic provisions of permissible self-defense measures and, therefore, possible violations of it. Of course, every case is individual, and it is impossible to take everything into account at once. Let's talk in more detail about murder in self-defense, or more precisely about what comes after it.
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What is considered an excess of defense?
When there is no direct threat to life, a person still has the right to defend himself from attack. However, in this case it is very important not to exceed the limits of necessary defense.
Deliberate actions that clearly do not correspond to the nature and danger of the encroachment (attack) may be regarded by law as a deliberate excess of necessary defense. This is the case when the defender realizes that he is causing harm to the attacker, which could be avoided in a particular situation.
As an example of excess of self-defense, we can consider, for example, murder for beating or insult. Such actions will be considered murder, not self-defense, and the punishment will be appropriate.
What are the difficulties of proving self-defense?
It is quite difficult for a court in our country to prove that the murder committed was only self-defense, and nothing more. The whole point is that it is difficult to convince a judge of the very fact of self-defense , because it is possible that the injured party (the person defending himself) did not provoke the attacker into the conflict. And, as we have already mentioned, in this case, the person’s subsequent actions cannot be regarded as self-defense.
In addition, murder as a means of self-defense is permissible only if there was a real threat to a person’s life . It is almost impossible to prove your actions are at least consistent with those used by the aggressor without witnesses or other significant evidence.
Human rights activists spoke about the prejudices of judges in cases of women's self-defense
About a third of those convicted of murder by exceeding the limits of necessary self-defense (Part 1 of Article 108 of the Criminal Code) in the last year and a half are women, according to data from the Judicial Department at the Supreme Court. In 2019 and the first half of 2021, 323 people were convicted under this offense, 122 of them were women. Of the 8.3 thousand convicted of intentional murder (Article 105 of the Criminal Code) in 2019 and the first half of 2020, about 13% were women (1.1 thousand). There is no official data on what proportion of all these cases involve domestic violence. But according to a study by Novaya Gazeta and Mediazona published last year, 79% of women convicted of premeditated murder and 83% of women convicted of murder in excess of self-defense defended themselves against partner violence.
In her report, the Law Zone lawyer focused on a qualitative analysis of court decisions related to the self-defense of women in situations of domestic violence. Gryaznova’s sample included 20 convictions against women in cases of murder (Part 1 of Article 105 of the Criminal Code), 20 verdicts in cases of women exceeding the limits of necessary self-defense (Part 1 of Article 108 of the Criminal Code), 15 verdicts of causing grievous harm health, resulting in death through negligence (Part 4 of Article 111 of the Criminal Code) and a total of ten acquittals for all these offenses. Convictions date from 2016–2019, acquittals have occurred since 2010.
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The Myth of the Ideal Victim
“In a number of verdicts, courts operate with stereotypes about the “ideal victims” of domestic violence,” states the author of the report. These stereotypes are associated with false ideas that the defendant could easily leave the family and bring the offender to justice by contacting the police. It is believed that at the moment of repelling an attack, the victim must behave in a certain way: run away, defend himself with bare hands without using improvised objects, clearly understand the moments of the beginning and end of a criminal attack, and in general act “in proportion to the threat”, which must be adequately assessed.
Thus, in the Arkhangelsk region, the court found that a local resident committed the premeditated murder of her husband using a metal pipe at a time when he “was lying in bed and did not pose a threat.” Although the verdict reveals that the woman had previously been subjected to domestic violence for more than 20 years, and immediately before that the man threatened her with an ax and used sexual violence.
In almost all the cases studied by Zona Law, “the defendant alleged long-term and often serious domestic violence by her partner, the fact of which was confirmed by other evidence in the case.” The Supreme Court explained that the right of self-defense always exists for a person in a situation of “continuing” criminal attack, for example when he is taken hostage.
But the courts that sentenced women who killed their partners, as a rule, did not regard domestic violence as a special systemic violation of human rights and a long-term psychologically traumatic situation, and did not take into account the gender specificity of such cases; Instead, they used clichés about “personal animosity,” and the events leading up to the attacker’s death were called a “quarrel” or a “fight,” Gryaznova points out.
Often, convictions contain a reference to the fact that beatings and violence from a partner were common, habitual and predictable for the defendant. This is how the courts justified the guilt of the women and the fact that their retaliatory use of force was not justified. “She could not perceive the circumstances of the crime as exceptional <...> which would give her the right to the necessary defense,” says one of the verdicts of the court in the city of Novokuznetsk, Kemerovo region. The verdict of the Chita City Court in Transbaikalia states that the relationship between the domestic rapist and the victim who killed him “was satisfactory for both parties.” Another court verdict in Tambov stated that the defendant could not perceive another death threat from her partner as real, since she had previously stayed with him after he broke her ribs.
Instability of practice
Judicial practice in cases of domestic violence is characterized by a lack of uniformity: “Based on almost identical facts of the case (as they are set out in the verdicts), the courts make diametrically opposed decisions,” the “Zone of Law” points out. According to Gryaznova, Russian legislation (including Article 37 of the Criminal Code “Necessary Defense” and the resolution of the plenum of the Supreme Court) fully allows Russian courts to make balanced verdicts that are not based on prejudices.
She notes several court decisions where courts have taken a “progressive” approach to gender-based violence. “The legislator recognized defense as an active, offensive activity. For this purpose, a person can defend himself even if he has the opportunity to avoid an attack, or seek help from other persons or government officials. No one can accuse the defender of causing harm to the attacker, although he could have avoided physical contact with him by running away,” says one of the verdicts of the Angarsk City Court, Irkutsk Region.
In a number of cases, the courts were understanding that the woman did not try to leave her partner or go to the police, that she committed an act of self-defense after stopping the assault by her partner, and that the defendant’s testimony during the investigation and in court differed from each other. In some cases, the courts did not use the fact that she may have been drunk at the time of the attack against the woman. All such sentences and rulings “are not revolutionary,” and the judges in these cases only used existing legal structures, Gryaznova emphasizes.
There are no official figures on the ratio of those convicted and acquitted in this category of cases, although there is “a hypothesis that women are acquitted more often than men,” the author of the report told RBC.
RBC sent inquiries to the Supreme Court and the Prosecutor General's Office.
“Stereotypes regarding women victims of domestic violence influence both judges and investigators. It seems to them that the violence that a woman experiences is in the order of things for her. And then myths begin to play: it’s her own fault / she could have left / she provoked it. Therefore, the courts do not believe in the danger of the situation in which the defending woman was, but perceive her as the culprit of the situation of domestic violence, and the fact that she was defending herself. This can only be corrected through training and advanced training programs for judges and investigators, in which they would study the specifics of domestic violence in order to better understand this phenomenon,” State Duma deputy Oksana Pushkina told RBC. In her opinion, the courts actually ignore the provisions of Art. 37 of the Criminal Code of the Russian Federation (necessary defense), according to which it is not a crime to protect the person of the defender.
Responsibility by article
It also makes sense to mention the articles under which the court case will be held. If a person, while defending himself, deprived another of his life, then the most loyal article, the punishment under which he will ultimately serve, is the previously mentioned Article 108. The court, unfortunately, resorts to it quite rarely.
If self-defense and excess of its measures have not been proven, then the accused can be convicted under Article 105 of the Criminal Code of the Russian Federation “Murder”, the punishment for which is imprisonment from 6 to 15 years. There have been precedents when the accused was punished under Article 111 of the Criminal Code of the Russian Federation - intentional infliction of grievous harm, which is punishable by imprisonment for up to 8 years.
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Cases of victim blaming
The defender is assigned the status of an accused in the event that he exceeds the limits established for self-defense. When the victim had the opportunity to avoid a retaliatory attack, but he did not do so, the norms of criminal law are applied to him. Also, the victim will be called to account in the case where the attacker decided to stop the attack, but was still deprived of his life.
If the attacker was provoked into committing illegal actions by the defender himself, such a situation is not considered as self-defense. Violence is considered dangerous as long as the perpetrator is holding a weapon; after he is disarmed, the defender must not use any type of weapon against him.
How to prove the fact of self-defense
Any evidence in your favor will be useful in court proceedings. The most valuable will be such as confirmation of physical damage caused to the accused, testimony of witnesses, recordings from video cameras or recorders. It may even be possible to provide the weapon used by the attacker (if any). Polygraph tests are also possible.
All this can help in proving innocence. But, to be honest, the court will not always consider them sufficient in the end.
It is quite possible that a person will ultimately be convicted under another article, different from 108. Then it is worth filing an appeal, trying to find additional evidence. And the best option is actually to hire a lawyer who is more knowledgeable in such matters.
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