Resolution of the Supreme Court of the Russian Federation dated October 24, 2006 No. 18 “On some issues that arise for courts when applying a special part of the Code of the Russian Federation on Administrative Offences”

The Armed Forces determined the limit of necessary defense

The Supreme Court's Criminal Division stated that strangulation gives the victim the right to self-defense by any means. This follows from the ruling in case No. 16-UD21-14-K4, in which Elena Solovyova* tried to appeal the verdict for exceeding the necessary self-defense.

• A citizen should not react if a freak has shoulder straps on his shoulders
  September 27, 17:04
• “You’ve probably never been robbed”
  July 2, 11:18 p.m.

Solovyova claimed that a drunken Pyotr Rykov* attacked her in front of her young daughter for a far-fetched reason. At that moment, the woman was cutting bread, so she had a knife in her hands. When Rykov began to choke her, Solovyova stabbed the man, fearing for her life. It pierced the attacker's chest and damaged his lung.

The Bykovsky District Court found Solovyova guilty of intentionally causing grievous harm to health with the help of a weapon (clause “h”, part 2 of Article 111 of the Criminal Code) and sentenced her to two years in prison, deferred until her daughter reaches the age of 14 years. The Volgograd Regional Court changed the classification to causing grievous harm to health in excess of necessary self-defense (Part 1 of Article 114 of the Criminal Code). The appeal sentenced Solovyova to six months of correctional labor with a deduction of 5% of her salary, conditionally with a probationary period of another six months. This verdict was confirmed by the cassation court.

In a complaint sent to the Supreme Court, the woman’s lawyer emphasized that at the time of the attack, Solovyova feared for her life. The court found that Rykov actually strangled her. At the same time, the defendant did not have the opportunity to stop the man without causing him harm. The defense lawyer asked to acquit Solovyova and recognize her right to rehabilitation.

The Supreme Court noted that Solovyova’s testimony is consistent with the bodily injuries witnessed after the incident and the confessions of Rykov himself. The appeal took this into account, but still decided that the defendant exceeded the limits of necessary self-defense. According to the Volgograd Regional Court, Rykov’s actions did not threaten the woman’s life, since he was not armed. This interpretation contradicts the meaning of Art. 37 of the Criminal Code, which defines “necessary self-defense,” the Supreme Court indicated.

Human rights activists spoke about stereotypes of judges in cases of domestic violence

Strangulation refers to actions that create a real danger to life, as explained in the resolution of the Plenum of the Supreme Court “On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime.” In such cases, the defender has the right to cause harm of any nature and extent to the person who is encroaching on his or someone else’s life.

Since Solovyova struck Rykov when he squeezed her throat, and she began to choke and realized that she could not escape, there is no corpus delicti in her actions, the Supreme Court pointed out.

The Judicial Collegium of the Supreme Court for Criminal Cases overturned the sentences of lower authorities, terminated criminal proceedings against Solovyova due to the lack of corpus delicti and recognized her right to rehabilitation.

*Names have been changed by the editors.

• Pravo.ru

• Supreme Court of the Russian Federation
• criminal process

Resolution of the Supreme Court of the Russian Federation dated 02/05/2019 N 2-AD19-3

SUPREME COURT OF THE RUSSIAN FEDERATION

RESOLUTION

dated February 5, 2021 N 2-AD19-3

Judge of the Supreme Court of the Russian Federation S.B. Nikiforov, having considered the complaint of defense attorney M.A. Tarakanov, acting in the interests of the minor victim S.S. Kozyreva. and her legal representative A.V. Kozyreva, on the decision of the judge of the Vologda Regional Court dated July 16, 2018 and the acting resolution that entered into legal force. Deputy Chairman of the Vologda Regional Court dated September 6, 2021, issued against Oksana Leonidovna Ignatieva (hereinafter O.L. Ignatieva) in the case of an administrative offense under Article 6.1.1 of the Code of the Russian Federation on Administrative Offences,

installed:

by the decision of the judge of the Cherepovets City Court of the Vologda Region dated June 19, 2021 Ignatiev O.L. found guilty of committing an administrative offense under Article 6.1.1 of the Code of the Russian Federation on Administrative Offences, and was subjected to administrative punishment in the form of an administrative fine in the amount of 10,000 rubles.

By the decision of the judge of the Vologda Regional Court dated July 16, 2018, upheld by the acting decree. Deputy Chairman of the Vologda Regional Court dated September 6, 2021, the said decision of the city court judge was canceled, the proceedings in the case were terminated due to the lack of proof of the circumstances on the basis of which the said judicial act was issued.

In a complaint filed with the Supreme Court of the Russian Federation, defense lawyer M.A. Tarakanov expresses disagreement with the decision of the judge of the Vologda Regional Court dated July 16, 2021 and the decision of the acting. Deputy Chairman of the Vologda Regional Court dated September 6, 2021, arguing about their illegality.

Ignatieva O.L., notified in accordance with the requirements of Part 2 of Article 30.15 of the Code of the Russian Federation on Administrative Offenses about the filing by the defender Tarakanov M.A. complaint to the Supreme Court of the Russian Federation, did not submit an objection to it within the established period.

Studying the materials of the case of an administrative offense and the arguments of the complaint allows us to come to the following conclusions.

In accordance with Article 6.1.1 of the Code of the Russian Federation on Administrative Offenses (all norms cited in this resolution are given in the wording in force at the time of the occurrence of the circumstances that served as the basis for bringing O.L. Ignatieva to administrative responsibility), beating or committing other violent actions that caused physical pain, but did not entail the consequences specified in Article 115 of the Criminal Code of the Russian Federation, if these actions do not contain a criminal offense, shall entail the imposition of an administrative fine in the amount of five thousand to thirty thousand rubles, or administrative arrest for a period of ten to fifteen days, or compulsory work for a period of sixty to one hundred and twenty hours.

As can be seen from the case materials, the basis for attracting the judge of the city court Ignatieva O.L. to administrative liability on the basis of the above-mentioned norm were the conclusions set out in the protocol on an administrative offense that on February 20, 2021 at 12 hours 21 minutes, being near the building of secondary school N <... > located at the address: city <... > , caused bodily harm and physical pain to minor Kozyreva S.S., <...> year of birth.

By the decision of the judge of the Vologda Regional Court dated July 16, 2021, the resolution of the city court judge dated June 19, 2021 to attract Ignatieva O.L. administrative liability was cancelled, the proceedings were terminated due to the lack of proof of the circumstances on the basis of which the judicial act was issued.

Article 24.1 of the Code of the Russian Federation on Administrative Offenses establishes that the objectives of proceedings in cases of administrative offenses are a comprehensive, complete, objective and timely clarification of the circumstances of each case, its resolution in accordance with the law, ensuring the execution of the decision made, as well as identifying the causes and conditions, contributing to the commission of administrative offenses.

In accordance with Article 26.1 of the Code of the Russian Federation on Administrative Offenses, among other circumstances in a case of an administrative offense, the existence of an event of an administrative offense is subject to clarification; a person who has committed unlawful actions (inaction), for which administrative liability is provided for by this Code or the law of a constituent entity of the Russian Federation; guilt of a person in committing an administrative offense; circumstances excluding proceedings in a case of an administrative offense; other circumstances relevant for the correct resolution of the case.

Based on the provisions of Part 1 of Article 1.6 of the Code of the Russian Federation on Administrative Offenses, ensuring legality when applying administrative coercive measures presupposes not only the existence of legal grounds for applying administrative punishment, but also compliance with the procedure established by law for bringing a person to administrative responsibility.

Evidence in a case of an administrative offense in accordance with Article 26.2 of the Code of the Russian Federation on Administrative Offenses is any factual data on the basis of which the presence or absence of an administrative offense event is established, the guilt of the person brought to administrative responsibility, as well as other circumstances that are important for the correct resolution of the case.

These data are established by the protocol on an administrative offense, other protocols provided for by this Code, explanations of the person against whom proceedings are being conducted for an administrative offense, testimony of the victim, witnesses, expert opinions, other documents, as well as testimony of special technical means, material evidence.

When considering a complaint against the decision of a city court judge, the judge of the Vologda Regional Court came to the conclusion that the protocol on an administrative offense does not contain a description of the event of the offense, since it does not indicate what violent actions O.L. Ignatieva committed. and the mechanism of bodily harm caused, in connection with which the court, in its decision dated July 16, 2021, indicated that the protocol had significant shortcomings and was subject to return to the person who compiled it at the stage of preparing the case for consideration. Based on these findings, the regional court judge overturned the decision of the city court judge dated June 19, 2021 and terminated the proceedings.

And about. Deputy Chairman of the Vologda Regional Court agreed with the decision made by the judge of the regional court, leaving it unchanged.

However, we cannot agree with such conclusions.

According to Part 1 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation, a protocol is drawn up on the commission of an administrative offense, except for the cases provided for in Article 28.4, Parts 1, 3 and 4 of Article 28.6 of this Code.

By virtue of Part 2 of Article 28.2 of the said Code, the protocol on an administrative offense shall indicate the date and place of its preparation, position, surname and initials of the person who compiled the protocol, information about the person against whom the case of an administrative offense has been initiated, surnames, first names, patronymics, addresses place of residence of witnesses and victims, if there are witnesses and victims, the place, time of commission and event of the administrative offense, an article of the said Code or the law of a constituent entity of the Russian Federation, providing for administrative liability for this administrative offense, an explanation of the individual or legal representative of the legal entity in relation to which a case has been initiated, other information necessary to resolve the case.

As can be seen from the protocol on administrative offense dated February 2, 2021, 35 AB 124474, it contains all the information listed in Part 2 of Article 28.2 of the Code of the Russian Federation on Administrative Offenses, including a description of the event of the charged administrative offense.

In addition, according to paragraph 4 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 N “On some questions that arise for the courts when applying the Code of the Russian Federation on Administrative Offences”, such shortcomings of the protocol are insignificant as can be corrected when considering the case on the merits .

When considering the case, the city court judge examined all the evidence presented in the case file, including the explanations of the person brought to administrative responsibility, the victim, the legal representative of the victim and other persons.

Based on the available evidence, the court of first instance established the violent actions of O.D. Ignatieva, which caused physical pain to the victim, the mechanism of causing bodily harm and other circumstances relevant to the resolution of this case.

Thus, the conclusions given in the decision of the judge of the regional court are not based on the case materials and are incorrect; there were no grounds for terminating the proceedings on the grounds indicated by the judge of the regional court.

Based on the provisions of Article 46, Part 1 of Article 50, Article 55 of the Constitution of the Russian Federation in conjunction with the provisions of Article 4 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, January 4, 1950), an arbitrary change in the legal regime for a person, in in respect of which a final decision has been made is impossible - a turn for the worse for a convicted person (acquitted) when revising a decision that has entered into legal force is, as a rule, unacceptable.

At the same time, the Convention for the Protection of Human Rights and Fundamental Freedoms establishes in paragraph 2 of Article 4 of Protocol No. 7 (as amended by Protocol No. 11) that the right not to be re-tried or re-punished does not prevent the retrial of the case in accordance with the law of the relevant state, if there is information about new or newly discovered circumstances or if during the previous proceedings there was a fundamental, fundamental violation that affected the outcome of the case.

The requirements of legal certainty and stability are not absolute and do not prevent the resumption of proceedings in connection with the emergence of new or newly discovered circumstances or the discovery of significant violations that were committed at previous stages of the process and led to an incorrect resolution of the case.

The violation of the requirements of the Code of the Russian Federation on Administrative Offenses committed by the judge of the Vologda Regional Court is significant, has a fundamental, principled nature and influenced the conclusions made in this case about an administrative offense, in connection with which the decision of the judge of the Vologda Regional Court dated July 16, 2021 and the resolution and about. Deputy Chairman of the Vologda Regional Court dated September 6, 2021, issued in this case of an administrative offense against O.L. Ignatieva cannot be considered legal and justified, they are subject to cancellation.

The Code of the Russian Federation on Administrative Offenses based on the results of consideration of a complaint, protest against acts that have entered into legal force in a case of an administrative offense also provides for the only case of making a decision to cancel a decision in a case of an administrative offense, a decision based on the results of consideration of a complaint, protest and to return the case to new consideration. In such a case, by virtue of paragraph 3 of part 2 of Article 30.17 of the said Code, there is a significant violation of the procedural requirements provided for by the said Code, if this did not allow a comprehensive, complete and objective consideration of the case.

According to the legal position expressed in the ruling of the Constitutional Court of the Russian Federation dated July 16, 2015 N 1788-O, the institution of review by way of supervision of decisions in cases of administrative offenses, decisions based on the results of consideration of complaints, protests is based on the provisions of the Constitution of the Russian Federation, namely its Article 46, which, in conjunction with its Articles 15 (Part 4) and 17 (Parts 1 and 3), presupposes the possibility, in cases of fundamental errors, to revise judicial acts that have entered into legal force, which is fully consistent with the requirements of paragraph 2 of Article 4 of Protocol No. 7 (as amended by Protocol No. 11) to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Since at the time of consideration in the Supreme Court of the Russian Federation the complaint of the defender Tarakanov M.A. statute of limitations for attracting Ignatieva O.L. administrative liability established by Part 1 of Article 4.5 of the Code of the Russian Federation on Administrative Offenses for this category of cases has not expired, the case is subject to return for a new trial to the judge of the Vologda Regional Court.

Based on the above, guided by Articles 30.13 and 30.17 of the Code of the Russian Federation on Administrative Offences, the judge of the Supreme Court of the Russian Federation

decided:

decision of the judge of the Vologda Regional Court dated July 16, 2021 and the resolution of the acting Deputy Chairman of the Vologda Regional Court dated September 6, 2021, issued against Oksana Leonidovna Ignatieva in the case of an administrative offense under Article 6.1.1 of the Code of the Russian Federation on Administrative Offenses, cancel.

The case will be sent for a new trial to the Vologda Regional Court.

Supreme Court Judge

Russian Federation

S.B.NIKIFOROV

We recommend: “Review of the practice of application by courts of the provisions of Chapter 8 of the Criminal Code of the Russian Federation on circumstances excluding the criminality of an act” (approved by the Presidium of the Supreme Court of the Russian Federation on May 22, 2019)

PLENATURE OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

DECISION of September 27, 2012 N 19

ON THE APPLICATION OF THE LEGISLATION ON NECESSARY DEFENSE AND CAUSE OF HARM BY THE COURTS WHEN DETAILING A PERSON WHO COMMITTED A CRIME

Ensuring the protection of individuals, society and the state from socially dangerous attacks is an important function of the state. To implement it, the Criminal Code of the Russian Federation not only determines what acts are recognized as crimes, but also establishes the grounds for declaring it legitimate to cause harm to persons who encroach on social values ​​protected by criminal law. In particular, such grounds include necessary defense (Article 37 of the Criminal Code of the Russian Federation) and detention of a person who committed a crime (Article 38 of the Criminal Code of the Russian Federation).

The criminal law norm on necessary defense, being one of the guarantees of the implementation of the constitutional provision that everyone has the right to defend their rights and freedoms by all means not prohibited by law (Part 2 of Article 45 of the Constitution of the Russian Federation), ensures the protection of the personality and rights of the defender, others persons, as well as protection of legally protected interests of society or the state from socially dangerous encroachment.

Detaining a person who has committed a crime in order to bring him to the authorities is one of the means of ensuring the inevitability of criminal liability and preventing him from committing new crimes.

The institutions of necessary defense and causing harm during the detention of a person who has committed a crime are designed to ensure a balance of interests related to the implementation of the tasks of criminal legislation provided for in Part 1 of Article 2 of the Criminal Code of the Russian Federation for the protection of social values, on the one hand, and with the possibility of lawfully causing harm to them, on the other hand. another. For these purposes, Articles 37 and 38 of the Criminal Code of the Russian Federation establish conditions under which actions that caused one or another harm to objects of criminal legal protection do not constitute a crime.

The international community, recognizing the forced nature of such harm, also seeks to minimize it. According to Article 2 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, deprivation of life is permissible only when it is necessary to protect a person from unlawful violence and to effect the lawful detention or prevent the escape of a person lawfully detained.

Taking into account the significance of the provisions of Articles 37 and 38 of the Criminal Code of the Russian Federation to ensure guarantees of the rights of persons who actively defend their rights or the rights of other persons, the legally protected interests of society or the state from socially dangerous attacks, to prevent and suppress crimes, as well as in connection with issues arising courts in the course of applying these norms, the Plenum of the Supreme Court of the Russian Federation, in order to form uniform judicial practice and guided by Article 126 of the Constitution of the Russian Federation and Articles 9, 14 of the Federal Constitutional Law of February 7, 2011 N 1-FKZ “On Courts of General Jurisdiction in Russian Federation",

decides:

1. Draw the attention of the courts to the fact that the provisions of Article 37 of the Criminal Code of the Russian Federation apply equally to all persons within the scope of the Criminal Code of the Russian Federation, regardless of professional or other special training and official position, and regardless of whether the person caused harm during protection of their rights or the rights of other persons, legally protected interests of society or the state, as well as regardless of the possibility of avoiding a socially dangerous attack or seeking help from other persons or authorities.

2. In part 1 of Article 37 of the Criminal Code of the Russian Federation, a socially dangerous attack associated with violence dangerous to the life of the defender or another person is an act that, at the time of its commission, created a real danger to the life of the defender or another person. The presence of such an encroachment may be evidenced, in particular, by:

causing harm to health that creates a real threat to the life of the defender or another person (for example, injury to vital organs);

the use of a method of assault that creates a real threat to the life of the defender or another person (use of weapons or objects used as weapons, strangulation, arson, etc.).

An immediate threat of violence that is dangerous to the life of the defender or another person can be expressed, in particular, in statements about the intention to immediately cause death or harm to health to the defender or another person, dangerous to life, demonstrations to the attacker of weapons or objects used as weapons, explosive devices if, taking into account the specific situation, there were grounds to fear that this threat would be carried out.

3. An assault, protection from which is permissible within the limits established by Part 2 of Article 37 of the Criminal Code of the Russian Federation, should be understood as the commission of socially dangerous acts involving violence that is not dangerous to the life of the defender or another person (for example, beatings, causing minor or moderate harm health, robbery committed with the use of violence not dangerous to life or health).

In addition, such an encroachment is the commission of other acts (actions or inaction), including negligence, provided for in the Special Part of the Criminal Code of the Russian Federation, which, although not associated with violence, however, taking into account their content, can be prevented or suppressed by causing harm to the offender. Such attacks include, for example, intentional or careless destruction or damage to someone else’s property, rendering life support facilities, vehicles or communications routes unusable.

Explain that the state of necessary defense arises not only from the moment of the beginning of a socially dangerous encroachment that is not associated with violence dangerous to the life of the defender or another person, but also in the presence of a real threat of such an encroachment, that is, from the moment when the encroaching person is ready to move on committing the relevant act. The court must establish that the defender had grounds for concluding that there was a real threat of attack.

4. When determining whether the actions of the attacker were unexpected for the person defending himself, as a result of which the defender could not objectively assess the degree and nature of the danger of the attack (Part 2.1 of Article 37 of the Criminal Code of the Russian Federation), the court should take into account the time, place, situation and method of the attack, the events preceding the attack, as well as the emotional state of the person defending himself (state of fear, fright, confusion at the time of the attack, etc.). Depending on the specific circumstances of the case, an attack committed, for example, at night with penetration into a home, when the defending person, in a state of fright, was unable to objectively assess the degree and nature of the danger of such an attack, may be considered unexpected.

5. The state of necessary defense can also be caused by a socially dangerous attack that is ongoing or ongoing in nature (for example, illegal imprisonment, hostage-taking, torture, etc.). The right to necessary defense in these cases remains until the end of such an attack.

In the event of the commission of acts provided for by the Special Part of the Criminal Code of the Russian Federation, in which the legal and actual moments of the end of the attack do not coincide, the right to the necessary defense is preserved until the actual end of the attack.

Necessary defense may be recognized as legitimate regardless of whether the person who has encroached has been brought to criminal liability, including in the case of protection from an attack by a person in a state of insanity or a person who has not reached the age at which criminal liability begins.

A person who has caused harm to another person in connection with the latter’s commission of actions, although formally containing signs of any act provided for by the Criminal Code of the Russian Federation, but known to the person who caused the harm, due to its insignificance, cannot be recognized as being in a state of necessary defense. public danger.

6. Lawful actions of officials in the performance of their official duties, even if they are associated with causing harm or the threat of causing it, do not constitute a state of necessary defense (use of force in cases established by law by law enforcement officers when ensuring public safety and public order, etc. .).

7. Actions cannot be recognized as being committed in a state of necessary defense if harm was caused to the attacking person after the attack was prevented, suppressed or completed and the need for the use of protective measures clearly ceased, which was realized by the person defending. In such cases, depending on the specific circumstances of the case, the harm caused to the offender may be assessed according to the rules of Article 38 of the Criminal Code of the Russian Federation, or the person defending himself may be liable on a general basis. For the purpose of a correct legal assessment of such actions, the courts, taking into account all the circumstances of the case, must find out whether they were committed by the person defending himself in a state of sudden strong emotional excitement (affect) caused by a socially dangerous attack.

8. Explain to the courts that a state of necessary defense may also occur in cases where:

the defense followed directly after the act of assault, although it was completed, but based on the circumstances, the moment of its end was not clear to the defending person and the person mistakenly believed that the assault was continuing;

the socially dangerous encroachment did not stop, but, obviously for the person defending himself, was only suspended by the encroaching person in order to create the most favorable environment for the continuation of the encroachment or for other reasons.

The transfer of weapons or other objects used as weapons during an attack from the attacker to the person defending cannot in itself indicate the end of the attack if, taking into account the intensity of the attack, the number of attackers, their age, gender, physical development and other circumstances, the a real threat of continuation of such encroachment.

9. A person who provoked an attack in order to use it as a reason to commit illegal actions (causing harm to health, hooliganism, concealing another crime, etc.) is not recognized as being in a state of necessary defense. What was done in these cases is qualified on a general basis.

10. When defending against a socially dangerous attack involving violence dangerous to the life of the defender or another person, or with an immediate threat of such violence (Part 1 of Article 37 of the Criminal Code of the Russian Federation), as well as in cases provided for in Part 2.1 of Article 37 of the Criminal Code of the Russian Federation, the defending person has the right to cause harm of any nature and extent to the attacking person.

11. Explain to the courts that criminal liability for causing harm occurs for the defender only if the limits of necessary defense are exceeded, that is, when it is established in the case that the defender resorted to protection from the attack specified in Part 2 of Article 37 of the Criminal Code of the Russian Federation, in such ways as means, the use of which was clearly not caused by the nature and danger of the attack, and unnecessarily intentionally caused serious harm to health or death to the offender. At the same time, liability for exceeding the limits of necessary defense occurs only in the case when it is established in the case that the defender was aware that he was causing harm that was not necessary to prevent or suppress a specific socially dangerous attack.

Intentional infliction of grievous bodily harm when exceeding the limits of necessary defense, resulting through negligence in the death of the offender, should be qualified only under Part 1 of Article 114 of the Criminal Code of the Russian Federation.

Intentional infliction of moderate or minor harm to health or beatings, as well as infliction of any harm through negligence, if this was a consequence of the actions of the defending person when repelling a socially dangerous attack, does not entail criminal liability.

12. In the event of an encroachment by several persons, the defending person has the right to apply to any of the encroachers such measures of protection as are determined by the nature and danger of the actions of the entire group.

13. When resolving the issue of the presence or absence of signs of exceeding the limits of necessary defense, the courts must take into account:

object of encroachment;

the method chosen by the encroaching person to achieve the result, the severity of the consequences that could occur if the encroachment was completed, the presence of the need to cause death to the encroaching person or serious harm to his health in order to prevent or suppress the encroachment;

the place and time of the attack, the events preceding the attack, the unexpectedness of the attack, the number of persons who encroached and defended themselves, the presence of weapons or other objects used as weapons;

the ability of the defending person to repel an attack (his age and gender, physical and mental state, etc.);

other circumstances that could affect the real balance of power between the attacker and the defender.

Having recognized in the actions of the defendant signs of exceeding the limits of necessary defense, the court cannot limit itself to a general formulation and must justify its conclusion in the verdict with reference to specific circumstances established in the case, indicating a clear inconsistency of the defense with the nature and danger of the attack.

14. Courts should keep in mind that the person defending himself, due to the emotional disturbance caused by the attack, cannot always correctly assess the nature and danger of the attack and, as a result, choose a proportionate method and means of defense.

The actions of the person defending cannot be considered as committed in excess of the limits of necessary defense if the harm caused, although it turned out to be greater than the harm prevented, but when causing the harm there was no obvious discrepancy between the protective measures and the nature and danger of the attack.

15. It is necessary to distinguish between murder and the intentional infliction of grievous bodily harm when exceeding the limits of necessary defense (Part 1 of Article 108 and Part 1 of Article 114 of the Criminal Code of the Russian Federation) from murder and infliction of grievous bodily harm in a state of sudden strong emotional excitement (affect) (Article 107 and Article 113 of the Criminal Code of the Russian Federation), taking into account that crimes committed in a state of strong emotional excitement are characterized by causing harm to the victim not for the purpose of protection and, therefore, not in a state of necessary defense. In addition, a mandatory sign of crimes committed in a state of sudden strong emotional excitement caused by the actions of the victim is the infliction of harm under the influence of this particular excitement, while for crimes committed when the limits of necessary defense are exceeded, this sign (presence of affect) is not required.

If the person defending himself exceeded the limits of necessary defense in a state of sudden strong emotional excitement (affect), his actions should be qualified under Part 1 of Article 108 or Part 1 of Article 114 of the Criminal Code of the Russian Federation.

16. Courts need to distinguish between the state of necessary defense and the state of imaginary defense, when there is no real socially dangerous attack and the person mistakenly assumes its existence.

In cases where the situation gave reason to believe that a real socially dangerous attack was being committed, and the person who applied protective measures did not and could not realize the absence of such an attack, his actions should be considered as committed in a state of necessary defense. In this case, a person who has exceeded the limits of protection permissible in the conditions of a corresponding real attack that is not associated with violence dangerous to the life of the defender or another person, or with an immediate threat of using such violence, is subject to liability for exceeding the limits of necessary defense.

In cases where a person did not realize, but due to the circumstances of the case should and could have realized the absence of a real socially dangerous attack, his actions are subject to qualification under the articles of the Criminal Code of the Russian Federation, which provide for liability for crimes committed through negligence.

If a socially dangerous attack did not actually exist and the surrounding situation did not give the person any reason to believe that it was occurring, the person’s actions are subject to qualification on a general basis.

17. Clarify that the rules on necessary defense apply to cases of use of automatically triggered or autonomously operating means or devices not prohibited by law to protect interests protected by criminal law from socially dangerous attacks. If in these cases the harm caused to the offender clearly did not correspond to the nature and danger of the attack, the act should be assessed as exceeding the limits of necessary defense. When such means or devices are activated (put into action) in the absence of a socially dangerous attack, the act is subject to qualification on a general basis.

18. Draw the attention of the courts to the signs that delimit the necessary defense (Article 37 of the Criminal Code of the Russian Federation) from causing harm when detaining a person who has committed a crime (Article 38 of the Criminal Code of the Russian Federation).

The detention of a person who has committed a crime can be carried out even if there is no immediate danger of the detained person committing a socially dangerous attack. In this case, the detention of such a person is carried out in order to bring him to the authorities and thereby prevent the possibility of him committing new crimes.

If, during the process of detention, the detained person commits a socially dangerous attack, including one associated with violence dangerous to the life of the person detaining him or other persons, or with an immediate threat of such violence, causing harm to the detained person should be considered according to the rules on necessary defense ( Article 37 of the Criminal Code of the Russian Federation).

19. The right to detain a person who has committed a crime has not only authorized representatives of the authorities, but also other persons, including victims of the crime, or who have become direct eyewitnesses, or persons who have reliably known about its commission. The provisions of Article 38 of the Criminal Code of the Russian Federation can be applied to these persons if they cause harm during the detention of a person who has committed a crime.

20. Persons who have committed a crime should include persons who have committed both completed and unfinished crimes, as well as accomplices of the corresponding crime. At the same time, the presence of a conviction against such persons that has entered into legal force is not a prerequisite for deciding the legality of causing harm to them during detention.

21. When resolving the issue of the legality of causing harm during the detention of a person who has committed a crime, the courts need to ascertain the circumstances indicating the impossibility of detaining such a person by other means.

If a crime is committed by several persons, causing harm is possible only in relation to those accomplices whom it was not possible to detain by other means.

22. The circumstances of detention (detention situation), which must be taken into account when determining the amount of permissible harm, should be understood as all circumstances that could affect the possibility of detention with minimal harm to the detainee (place and time of the crime immediately followed by detention, number, age and the gender of the detainees and detainees, their physical development, armament, the presence of information about the aggressive behavior of the detainees, their membership in a gang, terrorist organization, etc.).

23. Draw the attention of the courts to the fact that exceeding the measures necessary to detain a person who has committed a crime entails criminal liability only in cases of intentional infliction of death, grievous or moderate harm to health.

If the person who committed the crime suffered less harm during detention than is provided for in Part 2 of Article 114 of the Criminal Code of the Russian Federation, the actions of the detaining person do not constitute a crime.

24. Based on the provisions of Article 38 of the Criminal Code of the Russian Federation, the detainee must be sure that he is causing harm to the person who committed the crime (for example, when the detainee is a victim or an eyewitness of the crime, the detainee was directly pointed out by eyewitnesses of the crime as the person who committed it, when obvious traces of a crime were found on the detainee or on his clothes, on him or in his home).

If, during detention, a person was in good faith mistaken about the nature of the unlawful act committed by the detained person, mistaking for a crime an administrative offense or the act of a person under the age of criminal responsibility, or a person in a state of insanity, in cases where the situation gave reason to believe that a crime was being committed, and the person who carried out the detention did not and could not realize the actual nature of the act being committed; his actions should be assessed according to the rules of Article 38 of the Criminal Code of the Russian Federation, including the permissible limits of causing harm.

Similarly, situations should be assessed when, during detention, a person was in good faith mistaken about who exactly committed the crime, and the situation gave him reason to believe that the crime was committed by the person he detained, and at the same time, the person who carried out the arrest did not and could not realize the fallacy of your assumption.

If, upon arrest, the person was not aware, but due to the circumstances of the case he should have and could have been aware of the specified circumstances, about the nature of the unlawful act and who exactly committed the crime, his actions are subject to qualification under the articles of the Criminal Code of the Russian Federation, which provide for liability for crimes committed through negligence .

In the absence of these circumstances, causing harm to a person during his arrest is subject to classification on a general basis.

25. Courts should distinguish between necessary defense and causing harm when detaining a person who has committed a crime from other circumstances precluding the criminality of the act provided for in Chapter 8 of the Criminal Code of the Russian Federation.

When it is necessary to defend or detain a person who has committed a crime, it is unacceptable to cause harm to third parties. In the event that, when defending against a socially dangerous attack or when detaining a person who has committed a crime, harm is caused to the interests of third parties protected by criminal law, the act, depending on the specific circumstances, can be assessed as a lawful infliction of harm on the grounds provided for in Articles 39 or 42 of the Criminal Code of the Russian Federation , as innocent causing of harm or as an intentional or reckless crime.

26. Explain to the courts that murder committed when exceeding the limits of necessary defense, as well as when exceeding the measures necessary to detain the person who committed the crime, is subject to qualification under the relevant part of Article 108 of the Criminal Code of the Russian Federation and in those cases when it is associated with the circumstances provided for in paragraphs “a”, “d”, “e” of Part 2 of Article 105 of the Criminal Code of the Russian Federation. In particular, a murder committed when the limits of necessary defense were exceeded should be qualified only under Article 108 of the Criminal Code of the Russian Federation and when it was committed under circumstances that are usually associated with the idea of ​​special cruelty (for example, murder in the presence of persons close to the victim).

A murder committed when the limits of necessary defense were exceeded by several persons jointly defending themselves from a socially dangerous attack should be qualified under Article 108 of the Criminal Code of the Russian Federation.

27. The provisions of Articles 37 and 38 of the Criminal Code of the Russian Federation apply to law enforcement officers and military personnel who, in connection with the performance of their official duties, may take part in suppressing socially dangerous attacks or in detaining a person who has committed a crime. Moreover, if, as a result of exceeding the limits of necessary defense or measures necessary to detain a person who has committed a crime, these persons commit murder or intentional infliction of grievous or moderate harm to health, what they have done, if there are appropriate signs, is subject to qualification under Article 108 or under Article 114 of the Criminal Code RF.

28. Law enforcement officers, military personnel and other persons who are permitted by law to use weapons, special means, combat and special equipment or physical force to perform the duties assigned to them by federal laws are not subject to criminal liability for harm caused if they acted in accordance with requirements of laws, charters, regulations and other normative legal acts providing for the grounds and procedure for the use of weapons, special means, military and special equipment or physical force.

Causing harm by such a person who used weapons, special means, military and special equipment or physical force in violation of the procedure for their use established by current legislation cannot be recognized as a crime, if, based on the specific situation, the delay in using these items created an immediate danger to people’s lives or could lead to entail other serious consequences (environmental disaster, sabotage, etc.).

29. Draw the attention of the courts to the fact that, in accordance with Article 1066 of the Civil Code of the Russian Federation, damage caused in a state of necessary defense is not subject to compensation, unless its limits were exceeded.

When resolving the issue of compensation for harm caused as a result of the commission of crimes provided for in Article 108 and Article 114 of the Criminal Code of the Russian Federation, courts must take into account that harm in such cases is compensated on a general basis (Article 1064 of the Civil Code of the Russian Federation). In this case, the amount of compensation is determined by the court, taking into account the guilt of both the cause of harm and the victim whose actions caused the harm. The court, taking into account the property status of the person who caused the harm, has the right to reduce the amount to be recovered (Article 1083 of the Civil Code of the Russian Federation).

When determining the amount of compensation for moral damage caused as a result of the commission of these crimes, the requirements of reasonableness and fairness must be taken into account (Article 1101 of the Civil Code of the Russian Federation). Courts should take into account the degree of guilt of the harm-doer, as well as other circumstances worthy of attention (Article 151 of the Civil Code of the Russian Federation), which include the degree of guilt of the victim, whose actions caused the harm.

30. Explain to the courts that in cases of lawful infliction of harm in a state of necessary defense or when detaining a person who has committed a crime, the basis for an acquittal or a decision (ruling) to terminate a criminal case is the absence of corpus delicti in the act.

31. In connection with the adoption of this resolution, the resolution of the Plenum of the Supreme Court of the USSR dated August 16, 1984 No. 14 “On the application by courts of legislation ensuring the right to necessary defense against socially dangerous attacks” shall be considered invalid on the territory of the Russian Federation.

Chairman of the Supreme Court of the Russian Federation V.M. LEBEDEV

Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation V.V. DOROSHKOV

Key changes in the resolution of the Plenum of the Supreme Court on crimes in the sphere of entrepreneurship

On June 11, 2021, changes were made to the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 15, 2021 No. 48 “On the practice of application by courts of legislation regulating the specifics of criminal liability for crimes in the field of business and other economic activities.” Practicing lawyers in the field of criminal law and procedure should pay attention to the following key innovations:

1. Consideration of complaints by the courts against a decision to initiate a criminal case in the field of business activity. The new version of the resolution is supplemented by a requirement for the courts to verify the legality and validity of procedural actions and operational-search measures carried out by these bodies and their officials during the verification of a report of a crime. When considering complaints, special attention should be paid to assessing actions and measures related to the restriction of property and other rights and freedoms of entrepreneurs and (or) persons in labor relations with them (for example, ordering documentary checks and audits, obtaining samples for comparative research, requesting or seizure of documents and objects belonging to an individual entrepreneur or commercial organization, including electronic storage media, inspection of production premises, buildings, structures, areas and vehicles belonging to them).

2. Initiation of criminal cases regarding tax crimes. The new version of paragraph 5 of the resolution is supplemented with clarifications that before receiving a conclusion or information from the tax authority on the presence of signs of a crime, it may be considered sufficient data to initiate a criminal case.

Thus, data indicating signs of crimes provided for in Articles 198–199.1, 199.3, 199.4 of the Criminal Code of the Russian Federation may be contained, in particular, in materials sent by the prosecutor to the investigative body to resolve the issue of criminal prosecution, in an expert’s opinion and other documents.

If, based on the results of the audit, the court determines that the decision to initiate a criminal case on tax crimes was made by the investigator in the absence of sufficient data indicating the signs of these crimes (for example, if the decision of the tax authority to collect arrears was declared illegal in administrative proceedings), then such a decision investigator is recognized by the court as illegal and (or) unfounded.

3. Choosing a preventive measure in the form of detention. The Supreme Court has continued its policy aimed at combating formalism when making decisions to imprison entrepreneurs.

The resolution specifies that if the issue of choosing the specified preventive measure is considered in relation to a person who is an entrepreneur or a member of the management body of a commercial organization who has committed a crime from the list of Part 1.1 of Art. 108 of the Code of Criminal Procedure of the Russian Federation, courts should check whether the resolution to initiate a petition and whether the materials attached to the resolution contain specific information confirming the conclusion that the crime charged to him was not committed in connection with his business activities and (or) management of property owned by him. him with property used for the purposes of entrepreneurial activity, either not in connection with the exercise of his powers to manage this organization or not in connection with the implementation by a commercial organization of entrepreneurial or other economic activities. In the absence of this information, courts should refuse to satisfy investigators’ requests to choose an exceptional measure of restraint.

The presence in the decision to initiate a petition to select a preventive measure in the form of detention and the materials attached to the decision indicating the mercenary motive of the suspect or accused, as well as the method of disposing of the stolen property (for example, appropriated personally or used for business purposes) cannot serve as a basis to recognize an act as committed without connection with the implementation of entrepreneurial activity

4. Involving company employees as accomplices in the crime. The new edition of the resolution of the Plenum of the RF Armed Forces for the first time raised the issue of qualifying the actions of company employees who, along with the manager, committed actions (inactions) that constitute the objective side of the crime.

According to the explanations of the Supreme Court, the labor or personal relationships that have developed between an employee and an individual entrepreneur or a member of the management body of a commercial organization within the framework of the entrepreneur or organization’s economic activities cannot in themselves be considered as evidence of the commission of a crime as part of a group of persons by prior conspiracy, and the execution an employee's orders from a manager related to criminal activity cannot be the only basis for holding the employee accountable for co-perpetration in such a crime.

If the perpetrator of the crime is a person who meets the criteria of a special subject (provided for, for example, in parts 5–7 of Article 159, Articles 159.1, 160, 176, 178, 195–199.4, 201 of the Criminal Code of the Russian Federation), then these acts can be recognized as committed by a group of persons according to preliminary conspiracy only in the case when two or more such entities participated in the commission of the act. Other employees of the organization cannot be recognized as co-perpetrators of these crimes.

5. Circumstances excluding the criminality of the act. In the new paragraphs 18.1-18.3 of the resolution of the Plenum of the RF Armed Forces, an interpretation of Part 2 of Art. 14 of the Criminal Code of the Russian Federation (insignificance), Art. 39 of the Criminal Code of the Russian Federation (extreme necessity) and Art. 41 of the Criminal Code of the Russian Federation (reasonable risk) in relation to crimes in the field of business activity.

Thus, in cases where an act containing signs of a crime in the field of entrepreneurial and other economic activity was committed by a person in order to eliminate or prevent a danger that directly threatens the individual, the legally protected interests of society or the state, and this danger could not be eliminated by other means, then such an act cannot be considered criminal provided that the limits of extreme necessity were not exceeded (Article 39 of the Criminal Code of the Russian Federation).

For example, temporary carrying out business activities without a license (the license is not renewed within the established time frame) does not entail criminal liability if the cessation of this activity may lead to disruption of the work of life support facilities (cessation of water intake, water treatment, heat supply to housing and social facilities of a populated area, the threat of a man-made accident and etc.).

To recognize the actions taken by a person as extremely necessary (not criminal), the presence and actual nature of the danger that has arisen must be established, as well as the impossibility of eliminating it without causing damage to the interests of the individual, society or state and the absence of a clear excess of permissible limits, including in the form of causing harm equal to or greater than that which could have been caused by further development of the danger that has arisen.

Courts should keep in mind that the provisions of Article 41 of the Criminal Code of the Russian Federation also apply to persons who have taken a justified risk in the course of business and other economic activities to achieve a socially useful goal, provided that the risk meets the criteria specified in the law. These include the impossibility of achieving a socially useful goal by committing actions (inaction) that are not associated with risk, and the taking by the person who committed the risk of sufficient measures to prevent harm to the interests protected by criminal law.

If a person, in the course of carrying out entrepreneurial and other economic activities in order to achieve a socially useful goal, commits actions (allows inaction) that are obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or public disaster, then by virtue of Part 3 of Article 41 of the Criminal Code of the Russian Federation the risk cannot be considered justified.

When making a legal assessment of actions related to violation of the procedure for carrying out business and other economic activities, courts must take into account the provisions of Part 2 of Article 14 of the Criminal Code of the Russian Federation, which states that an action (inaction), although formally containing signs of an act, is not a crime, provided for by criminal law, but due to its insignificance, does not pose a public danger.