24.09.2022
Chicago 11, Melborne City, USA
Forex

Necessary defense, questions of the use of weapons

The Russian Federation is traditionally a country with a fairly high level of violent and mercenary crime. Article 45 of the current Constitution of the Russian Federation gives every person the right to independently defend their rights and freedoms using any tool that is not prohibited by law.

Lawyer Dmitry Efremov

Thus, liability is not assumed for causing harm to an infringing person (Article 37 of the Criminal Code of the Russian Federation) and his property (Article 1066 of the Civil Code of the Russian Federation), if the limits of necessary defense were not exceeded – otherwise the defender is found guilty of an offense.

Despite clear legislative regulation and an extensive theoretical base on issues of necessary defense, the state of judicial and investigative practice in this area remains unsatisfactory.

The absence of corpus delicti when committing self-defense, as a rule, is established only at the judicial stages of criminal proceedings, while the person who defended himself and others from unlawful encroachment is forced to himself be in the role of a suspect, accused and defendant, to be subjected to severe measures of procedural coercion, to justify the legitimacy of his own actions.

The norms on necessary defense and issues of the use of weapons under the legislation of the Russian Federation are explained by the managing partner Law office “Defense Solutions” advocate Efremov Dmitry Olegovich.

Lawyer, Dmitry Efremov, lawyer, self-defense, security, Defense Solutions
Lawyer Efremov Dmitry

Conditions for the legitimacy of necessary defense

Necessary defense can only be considered legitimate if certain conditions are met, which may relate to the offense or to the defense.

The obligatory conditions for the legitimacy of necessary defense, related to the encroachment, are:

  • public danger of encroachment (retaliatory actions must correspond to the nature of the attack committed);
  • the presence of an encroachment (the necessary defense is permissible only in the conditions of a criminal act already begun, but not yet completed);
  • the reality of the encroachment (a socially dangerous action must exist in reality, and not only in the imagination of the defending person).

The conditions for the legitimacy of a necessary defense relating to defense are expressed as follows:

  • the timeliness of protection, correlating with the condition of the presence of an encroachment;
  • causing harm to the attacker, but not to other persons;
  • the presence of a specific goal related to the reflection of a criminal encroachment;
  • no signs of exceeding the limits of necessary defense.

These conditions make it possible to differentiate lawful and illegal actions of a person defending himself from a criminal encroachment, as well as to delimit the necessary defense from related offenses – causing harm during the arrest of a person who has committed a crime (Article 38 of the Criminal Code of the Russian Federation) and extreme necessity (Article 39 of the Criminal Code of the Russian Federation).

The legality of the use of weapons in necessary defense

In accordance with Article 24 of the Federal Law of December 13, 1996 No. 150-FZ “On Weapons”, citizens have the right to use their legally available weapons to protect life, health and property as part of necessary defense. Acceptable types of civilian weapons for self-defense include:

  • shotguns (license required, free carry not allowed);
  • traumatic and gas pistols (a license is required, it is allowed to carry outside public places and events);
  • gas cartridges and electroshock devices (no license required, free to carry).

For self-defense, various improvised means that do not belong to the category of weapons can also be used – a kitchen knife, an ax, a crowbar, etc. If they are used, the defender will have to justify the presence of these items with him and the absence of intent associated with causing harm.

Lawyer, Efremov Dmitry, lawyer, self-defense, security, Defense Solutions
Lawyer Dmitry Efremov

Algorithm of actions in case of criminal encroachment

Based on the results of a comprehensive study of the legal framework and judicial practice in the field of necessary defense lawyer Dmitry Efremov recommends the following algorithm of actions in case of criminal encroachment:

1. It is desirable to resolve any conflict situations without the use of physical force, and in the event of an attack by an intruder, it is preferable to simply run away or even give up the wallet than to engage in a fight with an unpredictable result. Following the principle “the best way to defend is an attack” can lead to serious legal consequences associated with the accusation of a crime against human life and health.

2. If it is not possible to avoid a direct collision with the attacker, it is necessary to resort to self-defense, while the means used should be correlated with the level of public danger of the attack. The priority tools of civil self-defense are gas cartridges or aerosol sprays – these tools will stop the attacker, but will not cause serious harm to his health.

3. A firearm may be used to prevent an encroachment on a person’s life and the safety of his home, while the attacker must be warned before using it. The legislation does not regulate the procedure for warning an intruder, but in practice it is enough to shout loudly: “Stop, I will shoot!”.

4. After the end of the conflict, the defender must call the police, and in the case of the use of firearms, notify the National Guard within a day after the incident. If the attacker has received a serious injury, it is necessary to call an ambulance – otherwise the defender may be prosecuted for leaving in danger under Article 125 of the Criminal Code of the Russian Federation. If there is no threat of a second attack, first aid should be provided to the attacker.

5. The legal outcome of self-defense depends not only on the severity of the consequences, but also on the wording of the situation in the protocol – that is why you should use the constitutional right to receive qualified legal assistance and temporarily refuse to testify until the lawyer arrives. Lawyer Efremov Dmitry believes that the main task of the defender at this stage is not to allow the defender to accidentally slander himself during interrogation.

6. When considering situations of attack and defense, investigators often proceed from the simplified principle of guilt of the least injured person. In this situation, a competent lawyer must analyze each action of the parties to the conflict, proving the need for self-defense and compliance with the conditions for its legitimacy. The lawyer must defend the position of the reasonableness of the necessary defense of his client at the pre-trial stages of criminal proceedings and in court.

7. Responsibility for causing harm when the limits of necessary defense are exceeded arises according to the compositions – part 1 of article 108 of the Criminal Code of the Russian Federation (in the event of the death of the attacker) and part 1 of article 114 of the Criminal Code of the Russian Federation (in the event of causing serious bodily harm to the offender). The maximum punishment in the first option is 2 years, and in the second – 1 year of imprisonment, while the presence of extenuating circumstances allows the court to impose milder sentences.

In the event that the client may exceed the limits of necessary defense, lawyers Law office “Defense Solutions” provide effective defense in a timely manner and form the right position on the case.

Lawyer, Efremov Dmitry, lawyer, self-defense, security, Defense Solutions
Lawyer Efremov Dmitry

A photo: Defense Solutions Law Office

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