Extreme necessity - Article 39 of the Criminal Code of the Russian Federation

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Extreme necessity is a situation in which harm caused to legally protected interests is inevitable when eliminating the danger that threatens the individual, his rights, other persons, state and public interests, which is due to the impossibility of eliminating the danger by other means. The main feature of this definition is the absence of the fact that the limits of extreme necessity were exceeded, as specified in Art. 39 of the Criminal Code of the Russian Federation.

An urgent need. Concept

This definition is reflected in the General Part of the Criminal Code and allows us to establish the range of actions of persons that can be assessed as those committed in the presence of a state of extreme necessity.

Actions committed in such conditions exclude criminality. This means that harm caused under conditions of extreme necessity cannot be considered a crime. An exception to this rule are circumstances that are characterized as exceeding boundaries.

A state of extreme necessity is characterized by the elimination of such a danger that is directed towards the individual, his rights, public and state interests, which is carried out in the process of causing harmful consequences to various interests protected by criminal law, in the event that there was no other way to eliminate such a danger .

Who has the right to use extreme measures?

Absolutely any citizen can become the subject of the law, regardless of age, gender, or profession. Participation in eliminating a public danger is not an obligation. Representatives of some professions not only have the right to use the law, but also must take action that causes harm while preventing a greater danger.

For example, history knows a case when a train driver had to crash into a car crossing the railway tracks in order to save public transport passengers. In the event of emergency braking, the locomotive would overturn, which could lead to a crash. The court recognized that the driver’s actions were an extreme necessity. The Russian Federation supports its citizens in such situations, ensuring safety and compliance with laws in relation to them.

The action of extreme necessity in space, time and in a circle of persons

The legislation on extreme necessity applies:

in time - along with other actions defined by legislative acts and the Criminal Code, which is associated with the regulation of this concept as an integral part of the scope of criminal law;
in space - on a par with the procedure for applying the legislation of the criminal branch to other actions, which indicates the recognition as actions committed as a result of extreme necessity, those committed within the borders of the Russian Federation and corresponding to the characteristics of this definition;
by a range of persons - as actions committed in a state of extreme necessity are understood not only those acts that are committed by sane individuals of a certain age criterion, but also by insane persons, as well as persons who have not reached a certain number of years.

Degree of harm caused

The concept of “extreme necessity” is accompanied by the inevitable harm to third parties, which usually have nothing to do with the situation. The damage caused by the offender must be less than the consequences of the danger being prevented. When comparing the degree of harm caused, two factors are taken into account:

quantitative nature (size and cost of damage);
qualitative indicator (property damage, health damage).

There is no such thing in law as least necessary. An extreme measure is taken by a person in emergency conditions, when it is necessary to make an immediate decision. Often the course of action is formed in a stressful situation, when there is a lack of time or necessary information. Therefore, choosing the best option is subjective and is not assessed in sentencing.

The exception is situations in which the violator deliberately or knowingly made a decision to cause harm or damage to third parties.

Qualification of extreme necessity

The category of corpus delicti includes four signs that are also characteristic of actions that take place in cases of extreme necessity.

The object of the act cannot be material grounds, which means that there is no encroachment on them. Thus, persons whose actions are related to extreme necessity, although they encroach on the objects of crimes, do not carry a criminal nature in them.

From the point of view of the objective side, acts can manifest themselves both in the active phase and in inaction, have consequences that are characterized by social danger and causality.

The onset of consequences is typical for active actions performed within the concept of extreme necessity. Inaction is unlikely to cause negative consequences.

Actions, although they cause damage to property, prevent a number of dangerous consequences that are more significant. So we can identify a sign of extreme necessity, which consists in preventing greater consequences than were caused.

On the subjective side, there must be: guilt, which can manifest itself both in intent and in negligence; a motive that does not have criminal intentions to prevent harm and more dangerous consequences.

Extreme necessity is a condition, the subject of which can be any individual who has no self-interest or public danger in his actions, aimed at preventing much greater consequences than those that he himself can cause.

State

Harm to other legitimate interests means that harm is caused to the interests of others.

That is why the requirements imposed by law to qualify a state of emergency are much stricter in comparison with assessing the state of necessary defense.

To feel this line, one must understand that harm caused in a state of extreme necessity is inflicted only when a person has no other way to escape from danger.

An important condition for the legal qualification of a state of emergency is the amount of harm caused . This value cannot be equal to or greater than the amount of harm prevented.

Signs of emergency

The reasons that may be the basis for the emergence of extreme necessity may include the following signs that characterize the institution of extreme necessity:

acts (behavior) of persons associated with the creation of a state in which the actions of other persons will be carried out within the framework of extreme necessity;
the physiology of the body of the person who is in extraordinary conditions, which can be justified by the influence of the surrounding world, other persons or one’s own actions that led to this condition;
aggression on the part of representatives of the animal world, expressed in attacks on children or other persons;
malfunction of machines and mechanisms, creating a threat to life, health, property interests and causing large material damage (emergency situations);
extraordinary events that have a natural, man-made or other origin, which is associated with the influence of natural forces independent of humans.

Types of threats

Causes of harm may arise from various circumstances. An emergency may arise in several cases.

Technogenic danger. Problems with mechanisms, equipment or vehicles.
Natural threat. Avalanches, fires, floods, earthquakes and other natural phenomena that pose a danger to the life and health of people, property or public activities.
Human physiological processes. This category includes illness and childbirth. For example, in the case of a complicated birth of a child, the doctor has to make a choice between the life of the mother and the baby.
A threat to innocent citizens posed by a person committing illegal acts.
Provocation of necessary measures caused by negligence. If the goal was to deliberately cause harm to the public, criminal or administrative liability is provided in accordance with the law.
Set of circumstances.

The social nature of extreme necessity

There are two opinions regarding the basis of extreme necessity and its social nature.

According to the first, the actions do not pose a public danger. According to the second, their cause is a person’s collision with social relations that are protected by law and cause the least harm, protecting a larger volume of interests.

Ordinary persons are entitled to carry out actions in this state. Rescuers, firefighters and other officials have the responsibility to use the full range of necessary actions in cases of emergency. Such persons are obliged to take all measures to eliminate the existing danger. Failure to perform these functions may result in punishment.

Harm caused in this state is considered lawful, unless there is an excess of extreme necessity.

It is important that the danger that is prevented by such actions is real, and that the actions themselves are timely. The inability to qualify as extreme necessity actions that are aimed at preventing danger in the future or in the past.

In the process of legal assessment of the actions taken, it will be determined whether it is possible to eliminate the danger in other, less harmful ways. The decision to establish liability for exceeding the limits of possible actions in a given state is made exclusively by the court, after carrying out investigative measures.

What does judicial practice show under this article?

The concept in criminal law is very subtle, so there are various examinations to determine it. To establish the limits of extreme necessity, the court takes into account all possible circumstances - from the person’s behavior to the participation of other parties in the crime.

Examples of cases:

Citizen K. was driving on an icy road, observing traffic rules. There were also 2 passengers in his car. At a sharp turn, he almost collided with a car that was going too fast, K. skidded, and, trying not to collide, he drove into a local store. The passengers survived but were injured. K. was released from criminal liability for causing damage to property and compensation for damage. It was not his fault, the traffic violator was forced to pay for the damage - the car was driving too fast and caused the accident.
Citizen E. was driving along a country road at night when a motorcyclist crashed into her. Both cars were damaged, the motorcyclist had broken legs and was bleeding. E. tried to call an ambulance, but there was no connection. She stopped the car and asked the driver to go to the hospital, but he didn't want to. Then she pushed him out of the car, put the motorcyclist in and took him to the rescue. Her actions were justified and she avoided criminal liability.
Citizen U. decided to dry his laundry over a gas stove. It caught fire and threatened to go onto the wallpaper, then he grabbed it and threw it out the window into the snow. Unfortunately, there was a vehicle standing in the place where the laundry fell. It caught fire and exploded. U. was found guilty of careless handling of fire. His actions were not regarded as an emergency, since the fire could have been extinguished in another way.

What decisions are most often made under Article 39?

The article is a mitigating circumstance in criminal practice, therefore decisions on it are often acquittal. But accusatory options also occur, since sometimes citizens mistakenly believe that they are acting lawfully, but in fact such actions could have been avoided.

Features of application

Article 39 is included in the Special Part of the Criminal Code, so its interpretation can be understood in different ways. To determine the exact motive or purpose of the crime, the court must take into account all the circumstances. For example, if a person’s child is sick, and he stole a neighbor’s car so as not to wait for an ambulance, and got into an accident due to running a red light, then his actions are not considered an emergency. It was easier and safer to wait for specialized help than to expose yourself and the victim to greater risk.

Conditions for the use of emergency

Actions that are committed in a state of extreme necessity have the characteristics of individual crimes. However, the absence of a person’s goal to commit a crime and the presence of a desire to save the greatest benefits makes these actions lawful, excluding the sign of criminality in them.

It is impossible to attribute to the source of danger: one’s own unintentional illegal actions; attack by other persons, entailing the use of necessary defensive measures; coercion of a physical or mental nature.

The danger that requires elimination must be aimed at the individual, his rights, public and state interests. When protecting the interests of other citizens, a person does not require their prior consent.

Those actions that are carried out to eliminate the danger must be the only available method of rescue, which is decided depending on the specific circumstances existing at the time of the threat.

Provisions of Art. 1067 of the Civil Code, oblige persons who caused harm in a state of extreme necessity to compensate it. An exception may be that the court imposes this obligation on third parties or releases the causer from compensation.

Author of the article

You can't blame, you can't pardon.

Circumstances excluding the criminal liability of a doctor. Justified risk and extreme necessity.

The peculiarities of medical activity rightfully include its manipulations; the life or health of the patient can be harmed. At the same time, there is no mention in medical legislation of the professional risks of doctors. This leads to patients making claims against doctors, and cases of medical workers being brought to criminal liability are multiplying.

Under certain circumstances, criminal law can protect a physician. When a doctor acts in circumstances of extreme necessity or reasonable risk, the medical professional does not become liable, even if his actions caused harm to the patient’s health or led to his death. However, in order for the Criminal Code to “stand” on the side of the doctor, it is necessary that a number of important conditions be met, which are useful to know about in order to understand which actions will not be considered by the court as criminally punishable. Antonina Chuprova , professor of the Department of Criminal Law and Criminology of the All-Russian State University of Justice, expert of the National Medical Chamber, Doctor of Law, Professor, talks about the circumstances under which a medical worker does not face criminal liability

Main signs of justified risk.

Article 41 of the Criminal Code of the Russian Federation “Reasonable risk” states that causing harm at a reasonable risk is not a crime.

But the risk must have signs of validity. A medical worker will not be liable for harm caused only if all the requirements and conditions for the validity of the risk and risky actions have been met. And these requirements are very extensive.

The first sign that a risk is justified is the socially beneficial goal that the medical worker strives for. This goal may be related to both the interests of a particular patient and the interests of the entire society. For example, a socially beneficial goal can be both the development of a new vaccine and the doctor’s desire to improve the patient’s condition. The law does not require that the goal be achieved; the main thing is that all the doctor’s actions must be aimed specifically at achieving it.

The most important requirement for the validity of risk is that a socially beneficial goal cannot be achieved by actions not related to risk. If the doctor could achieve his goal without taking risks, then if negative consequences for the patient occur, the doctor’s risk will not be considered justified.

A risk is considered reasonable only if the physician has taken sufficient measures to prevent harm to the patient. A special examination will assess whether these measures were justified. It is important for doctors to remember that it is necessary to take all available precautions to prevent negative consequences.

Another sign is sufficient qualifications of the medical worker , i.e. criminal law says that only a specialist who has the necessary experience and qualifications for such actions can take justified risky actions.

Any actions of a doctor with a reasonable risk must comply with all regulatory requirements , both international acts ratified in Russia and Russian laws.

A situation of justified risk is also possible only if the medical organization meets certain requirements for equipment, qualified personnel, etc. Those. it must have conditions for achieving the goals set by the doctor for the treatment of a particular patient.

The ethical factor is also important. The doctor must be guided solely by considerations for the benefit of the patient, and not by personal or selfish interests. For example, no donations should be accepted for enrolling a patient in promising studies aimed at treating serious diseases or for the use of promising drugs or treatments. Risk also cannot be caused by adventurous or career considerations.

is also an important feature . With a justified risk, the moment of decision-making and specific actions are separated in time, since before implementing the decisions made, the doctor needs to take measures to prevent harm.

To avoid accusations that the risk is unreasonable, voluntary informed consent should be obtained from the patient. Voluntary informed consent can play a decisive role in a difficult situation for a doctor if the patient is thoroughly and clearly informed about the main aspects of the treatment being carried out. Judicial practice always follows the path of giving voluntary informed consent the status of a basic document when making decisions regarding the correctness or incorrectness of the behavior of physicians.

At the same time, it is important to remember the situation when the risk cannot initially be recognized as justified. This situation involves creating a threat to the lives of many people and, according to law enforcement practice, most often we are talking about more than two victims.

Very often, healthcare workers take risky actions without sufficient justification . Thus, in one of the Russian ophthalmological centers, when treating macular degeneration, doctors injected patients with the drug Avastin into the vitreous cavity of the eye. This drug is intended for the treatment of cancer and its use has led to temporary loss of vision in patients. The desire of doctors to take risky actions to help patients overcome a serious illness is understandable, and this circumstance allowed them to take risks. But in this case, the risk was not considered justified, since there were alternative treatments for a specific condition -. This is contrary to the principles of reasonable risk. Doctors were unable to convincingly justify this method of treatment - there was no data in the scientific literature, except for a single dissertation study, which cannot be considered sufficient. A typical mistake is that informed voluntary consent from patients to this type of treatment was not obtained. Of course, in this case we can hardly talk about a justified risk, and moreover, the actions of doctors contain signs of such a crime as the provision of services that do not meet safety requirements (Article 238 of the Criminal Code of the Russian Federation), which implies serious criminal liability.

Doctors often take unnecessary risks without having sufficient qualifications to do so. For example, a resident doctor in the dental department of an oncology dispensary admitted to his department a seriously ill patient with cancer of the intermediate bronchus with metastases to the lymph nodes of the mediastinum. He performed a tracheotomy and catheterization of the subclavian vein on the patient, and a day later he also performed a gastrostomy. The doctor refused the help of specialists of the relevant profile who were in this center. Subsequently, it turned out that there were no clinical indications for tracheotomy, that gastrostomy was also not clinically justified, moreover, it could not be performed due to complications from catheterization of the subclavian vein. As a result, the patient's health was seriously harmed. Of course, there can be no question of a justified risk; in addition to the fact that the doctor did not have sufficient qualifications (he did not specialize in abdominal surgery and resuscitation therapy), and sufficient qualifications are a prerequisite for a justified risk, he also acted with ethical violations, not in the interests of the patient. In this case, the patient's benefit did not exceed the risk to which he was exposed.

So, for a risk to be considered justified, it must meet an extensive list of requirements, deviation from any of them may entail legal liability. Justified risk as an independent circumstance excluding the criminality of an act is rarely encountered in judicial practice.

Much more often, doctors are found not guilty of committing a crime, according to another article of the Criminal Code of the Russian Federation “Extreme necessity”.

An urgent need. Differences from justified risk.

Medical workers often find themselves in a state of emergency. According to Article 39 of the Criminal Code of the Russian Federation, causing harm is not a crime in a state of extreme necessity, that is, to eliminate a danger that directly threatens a person, if this danger could not be eliminated by other means and the limits of extreme necessity were not exceeded.

This definition already contains a significant difference from justified risk. Justified risk is taken to achieve a socially useful result; if absolutely necessary, the main goal is to eliminate the threat to human life or health .

Another significant difference is that the time gap between the decision and its implementation is minimal or completely absent . In medicine, this means that the necessary assistance must be provided immediately . The doctor does not have the opportunity to contact other specialists in other medical organizations if they are not in close proximity.

If, with a justified risk, harm is only possible, then if absolutely necessary to eliminate the impending danger, harm is always caused . This may be harm to health, or harm may manifest itself in violation of procedures or standards of medical care or job descriptions. Therefore, for example, the use of an unregistered medicine or a new method of treatment in a life-threatening situation is not considered a violation of the law. But there is an important caveat - the harm caused must always be less than the harm prevented. If the harm is greater or equal, then we are talking about exceeding the limits of extreme necessity. In this case, criminal liability arises if the doctor acts intentionally; careless causing of harm in this case is not criminally punishable.

If a reasonable risk requires a certain qualification of a physician, then in case of emergency there are no special requirements for that doctor, which reflects a threat to life and health. The same applies to the requirements for a medical organization - there are no special requirements for providing emergency care in case of a threat to life, i.e. it may be at a different level than the one that allows for specific types of medical interventions.

Very often, such situations of extreme necessity arise when, in order to save the patient’s life, his health must nevertheless be harmed. For example, a patient had her uterus removed. The forensic medical examination came to the conclusion that all surgical interventions were carried out with the aim of preserving the life of the patient according to emergency indications, that is, removal of the uterus, causing serious harm to her health, was less harm than death, which would inevitably have occurred if the doctor had not carried out this operation. The court decision established that the doctor acted in a situation of extreme necessity, his actions were lawful and met all the requirements of extreme necessity.

But cases of exceeding the limits of extreme necessity are also very common. For example, while transporting an injured child to a district hospital, a doctor noticed that his condition was deteriorating. The doctor, deciding that the patient was dying, catheterized the subclavian artery and began infusion therapy right in the car. The child was taken to the hospital alive, but in serious condition. On the second day he died. An autopsy revealed signs of a closed chest injury with rib fractures, heart contusion, and hemorrhage into the tissue of the left lung. Signs of therapy pathology were identified. Experts pointed out that catheterization was performed incorrectly. And although the examination noted that catheterization was necessary in this situation, in an effort to save the child’s life, the doctor was unable to do it properly. Moreover, errors in therapy were precisely the cause of the child’s death, so she was prosecuted because the limits of extreme necessity were exceeded.

We can conclude that although in a situation of extreme necessity, to save the patient’s life, much fewer demands are placed on the doctor and medical organization than in the case of a justified risk, Article 39 of the Criminal Code of the Russian Federation is not an indulgence for any action, which must be taken into account in your practice.

Illegal orders. What to do?

There is another interesting aspect of criminal law - Article 42 of the Criminal Code of the Russian Federation says that it is not a crime to cause harm while executing an order or instruction that is mandatory for a subordinate. The orders given by management in the healthcare sector are not always legal. However, the execution of an illegal order will relieve the doctor from liability only under certain conditions .

Firstly, such an order must be given by the immediate supervisor to his subordinate

The one who executes the order must obey this manager in accordance with his functional responsibilities

Secondly, the person who gives the order, according to the job description, must have the right to give such orders. A physician is not obliged to obey the orders of a supervisor if the orders he gives are beyond the scope of his competence.

The order must be given in proper written form and contain all the necessary details. In this case, the document can be either paper or electronic. The exception is military formations - in military formations there is also an oral form of order.

The contractor must be familiar with this order and confirm this circumstance in writing.

And the last very important condition is that the order must not be obviously illegal. If a doctor realizes the illegality of an order or instruction, but nevertheless complied with it, he is responsible for his actions on a general basis, without being able to refer to the execution of a mandatory order.

Sometimes “informal” illegal orders of senior managers, to which ordinary doctors obey, bring doctors to the dock. For example, a sensational case when a young woman suffering from diabetes died in one of the Volga cities. The doctors at the clinic did not prescribe subsidized medications for her for five months. Later it turned out that the local Ministry of Health, which did not hold a procurement tender on time, sent unspoken instructions to district clinics not to write prescriptions for subsidized drugs. The officials of the Ministry of Health protected themselves, and the doctors who carried out this illegal order were brought to justice, since they could not help but realize the illegality of this order.

It is often difficult for doctors to come into conflict with management, they are afraid of the consequences, but a doctor must understand that by carrying out an obviously illegal order, he exposes himself to the risk of criminal liability. If a medical worker has any doubts about the legality of an order or instruction from a superior manager, he must request written confirmation. Managers are also responsible for issuing an illegal order or instruction.

As we can see, in law enforcement practice there are many circumstances and conditions under which the liability of a medical worker does not arise. Their knowledge will help doctors act correctly and minimize the risks of criminal liability.

The material was prepared within the framework of a grant from the President of the Russian Federation provided by the Presidential Grants Foundation (in accordance with Decree of the President of the Russian Federation dated January 30, 2019 No. 30 “On grants of the President of the Russian Federation provided for the development of civil society”)

What is the difference

Outwardly, behavior delineated by the boundaries of the state of necessary defense and the state of extreme necessity look, at first glance, nothing less than an offense.

In fact, these actions are socially beneficial .

Let's consider the difference between necessary defense and extreme necessity.

In a state of necessary defense, harm is caused to a specific person - the source of the threat of attack or the one committing the attack itself. The harm caused to him in this case should be minimal.

Behavior in a state of necessary defense, as a rule, retains the ability to choose means to repel an attack. In a state of extreme necessity, harm is caused to other (third) persons. Those. innocent persons. These are not only individuals, but also legal entities. The amount of harm caused to another person should not be equal to or greater than the harm prevented.

So, the difference between necessary defense and extreme necessity is that behavior in a state of extreme necessity involves choosing only those means to eliminate danger that cause the least harm. And with the necessary defense, comparison of the harm caused with the harm prevented is excluded.