1. It is not a crime to cause harm to interests protected by criminal law at a reasonable risk to achieve a socially useful goal.
2. The risk is recognized as justified if the specified goal could not be achieved by actions (inactions) not related to the risk and the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law.
3. A risk is not considered justified if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a social disaster.
Commentary to Art. 41 of the Criminal Code of the Russian Federation
1. Justified risk as a circumstance excluding the criminality of an act occurs when a socially useful goal could not be achieved otherwise than with the risk of causing harm to the interests protected by criminal law, and the person who allowed such a risk had objective reasons to hope for a successful outcome and took sufficient measures to prevent the onset of negative consequences.
Justified risk is possible in any field of professional activity: in science and technology, in medicine, in production, in commerce, in sports and in everyday life.
2. The first condition for the legality of causing harm with a justified risk is that the action associated with the risk must be aimed at achieving a socially useful goal. This means that the expected but not achieved result could be useful not only to the person who took the risk, but also to other people.
The validity of the risk is the second condition for its legitimacy. As follows from Part 2 of the commented article, the risk is considered justified if: a socially useful goal could not be achieved by actions (inaction) not related to risk; the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law.
Thus, if a person has a real opportunity to achieve the same socially useful result, but without committing risky actions, he is obliged to use this opportunity. The degree of sufficiency of measures taken by a person to prevent harm in the event of a risk is determined based on specific circumstances, but in any case such an assessment must be based on objective knowledge and experience accumulated in a particular area.
If all the specified conditions are met, the risk is considered justified, and the occurrence of harmful consequences does not entail any measures of a criminal law nature.
3. Part 3 of the commented article provides for the conditions under which, in any case, the risk is considered unreasonable: if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a social disaster.
Knowing means that a person foresees and consciously allows for the possibility of the occurrence of the specified consequences before committing all planned actions.
A threat to the lives of many people should be understood as a danger for at least two people, an environmental disaster should be understood as the danger of causing large-scale harm to nature (for example, the death of flora, fauna over a wide area), a public disaster should be understood as a danger of negative consequences for a large number of people, unless it is associated with a threat to their life.
4. In case of failure to comply with one or more conditions for the legality of causing harm with a reasonable risk, the person’s actions are subject to criminal legal assessment on a general basis.
A crime committed in violation of the conditions of legality of risk can be either intentional (with indirect intent) or careless.
Committing a crime in violation of the conditions of legality of a justified risk is considered as a circumstance mitigating punishment (clause “g”, Part 1, Article 61 of the Criminal Code of the Russian Federation).
5. Despite the fact that justified risk as a circumstance excluding the criminality of an act is similar to extreme necessity, there are also significant differences between them.
If absolutely necessary, harm is caused to eliminate a danger that directly threatens a person, his rights and other legally protected interests. With a justified risk, such an immediate danger may not exist (for example, when testing new equipment) or it may only be probable. Striving for a socially useful goal that is not achievable through actions (inactions) that do not involve risk, a person himself creates a dangerous situation.
In addition, if absolutely necessary, the harm caused must be less than the harm prevented, whereas with a justified risk, the amount of harm is not decisive for assessing the actions of the risker.
Article 254 of the Criminal Code of the Russian Federation. Damage to the earth.
Commentary on Article 254
1. The social danger of the crime in question lies in the fact that damage is caused to the land - the national heritage of Russia, the main means of production, the place of residence of the peoples inhabiting the country, the basis for the functioning of all sectors of the Russian economy.
The goals of land protection are: a) prevention of degradation, pollution, littering, land disturbance, and other negative (harmful) impacts of economic activity; b) ensuring the improvement and restoration of lands subject to degradation, pollution, littering, disturbance, and other negative (harmful) impacts of economic activities (Article 12 of the Land Code of the Russian Federation).
2. The object of the crime is environmental safety, as well as relations to ensure the protection and rational use of land. The subject of the crime is land as an integral part of the natural environment (lands located in an industrial zone, agricultural land, lands of individual users of land plots: settlements, transport, communications, energy, defense and other purposes; forest and water funds, as well as reserve lands ). To resolve issues of application of the article under consideration, it does not matter whether the land is developed, developed or not developed by man, taken out of circulation; the form of ownership of the land and the nature of its ownership do not affect.
In the sense of Art. 254 earth is understood as a surface soil layer, a mineral-organic formation characterized by fertility and performing environmental, economic, cultural, recreational and other functions.
3. The objective side of the crime is expressed in the poisoning, contamination or other damage of land with harmful products of economic or other activities due to violation of the rules for handling fertilizers, plant growth stimulants, pesticides and other dangerous chemical or biological substances during their storage, use and transportation. The Federal Law “On Environmental Protection” uses a general concept - “pollutant”, i.e. a substance or mixture of substances, the quantity and (or) concentration of which exceeds the standards established for chemical substances, including radioactive substances, other substances and microorganisms and has a negative impact on the environment.
4. Specified in Art. 254 rules are contained in various regulatory legal acts regulating economic, scientific, medical, military and other activities related to the circulation of hazardous substances and products named in the law (for example, the Land Code of the Russian Federation, Federal Law of March 30, 1999 N 52-FZ “On sanitary and epidemiological well-being of the population”, Decree of the Government of the Russian Federation dated November 12, 1992 N 869 “On state registration of potentially hazardous chemical and biological substances”, Decree of the Government of the Russian Federation dated November 15, 2006 N 689 “On state land control”, etc.).
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NW RF. 1999. N 14. Art. 1650.
5. Land poisoning reflects the extreme degree of land pollution and is characterized by the saturation of the soil with pesticides or poisonous (toxic) products of economic activity, bringing it to a state where, as a result of anthropogenic activity, it becomes dangerous to the health of people, animals, insects and other organisms.
Pollution is a physical, chemical or biological change in the composition of the soil that exceeds established maximum standards for harmful effects and poses a threat to human health, the state of flora and fauna.
Other damage to the land is the partial or complete destruction of the fertile layer of soil, resulting in the loss of its fertility, deterioration of its composition, and a decrease in overall natural and economic value as a result of violation of the rules for handling hazardous chemical or biological substances (see letter from Roskomzem dated March 27, 1995 N 3 -15/582 “Methodological recommendations for identifying degraded and contaminated lands”).
6. The norm in question does not provide for liability for damage to land that occurred not as a result of violation of these rules, but as a result of other actions: construction of landfills and landfills, contamination of land with waste and refuse, etc. Unauthorized removal or movement of fertile soil layer in accordance with Art. 8.6 of the Code of Administrative Offenses of the Russian Federation forms an administrative-legal tort.
7. The law lists the consequences of damage to land as causing harm to: a) human health or b) the environment. Their content is, in fact, similar to the same consequences provided for by other norms on environmental crimes. It should only be noted that when determining damage to the natural environment, it is necessary to take into account the provisions of the Procedure for determining the amount of damage from pollution by chemical substances, 1993, and the Scale of civil claims brought against organizations and individuals for compensation of damage caused to the state hunting fund, 1993.
Between violation of the rules of treatment specified in Art. 254 hazardous substances and products and the resulting consequences must be established.
8. The crime has a material composition and is considered completed from the moment at least one of the consequences named in the law occurs.
9. From the subjective side, the crimes provided for in Parts 1 and 2 of Art. 254, can be committed both intentionally and through negligence. There is no reason to limit the subjective side of the crime in question to guilt in the form of indirect intent, as some authors do.
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Criminal law of the Russian Federation. Special part / Ed. B.T. Razgildieva, A.N. Krasikova. Saratov, 1999. P. 440.
10. The subject of the crime is a person who has reached the age of 16, who, by the nature of his professional activity or privately, stores, uses or transports fertilizers, plant growth stimulants, pesticides and other dangerous chemical or biological substances.
11. According to Part 2 of Art. 254 liability arises for damage to land in an area of environmental disaster or environmental emergency (see commentary to Article 247 of the Criminal Code).
12. The commission of acts provided for in Parts 1 and 2 of the article in question, which resulted in the death of a person through negligence, forms a particularly qualified crime (Part 3 of Article 254).
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