Commentary on Article 32. Necessary Defense of the Criminal Code of the Republic of Kazakhstan

1. Necessary defense shall be recognized as the lawful protection of the person and rights of the defending person and other persons, as well as legally protected interests of society and the State, against a socially dangerous encroachment, including by inflicting harm upon the person committing the encroachment.

The right to necessary defense belongs equally to all persons, regardless of their professional or other special training and official position. This right belongs to a person irrespective of the possibility of avoiding the socially dangerous encroachment or seeking assistance from other persons or State bodies.

2. The infliction of harm upon the person committing an encroachment while acting in a state of necessary defense shall not constitute a criminal offense, that is, when protecting the person, dwelling, property, land plot and other rights of the defending person or other persons, as well as legally protected interests of society or the State, against a socially dangerous encroachment by inflicting harm upon the person committing the encroachment, provided that the limits of necessary defense have not been exceeded.

3. Exceeding the limits of necessary defense shall be recognized as an obvious disproportion between the defense and the nature and degree of public danger of the encroachment, as a result of which the person committing the encroachment is inflicted harm that is manifestly excessive and not necessitated by the circumstances. Such excess entails criminal liability only in cases of intentional infliction of harm. The infliction of harm shall not constitute exceeding the limits of necessary defense when a person is encroaching upon human life, or when repelling another encroachment involving an armed attack or violence dangerous to the life of the defending person or other persons, or an immediate threat of such violence, or a violent intrusion into a dwelling or premises, as well as where, due to the suddenness of the encroachment, the defending person was unable to objectively assess the degree and nature of the danger of the attack.

In the Criminal Code of the Republic of Kazakhstan, circumstances excluding the criminality of an act are provided for in the following Articles: Article 32, “Necessary Defense”; Article 33, “Infliction of Harm During the Detention of a Person Who Has Committed an Encroachment”; Article 34, “Extreme Necessity”; Article 35, “Conducting Operational-Search, Counterintelligence Activities or Covert Investigative Actions”; Article 36, “Reasonable Risk”; Article 37, “Physical or Mental Coercion”; and Article 38, “Execution of an Order or Instruction”.

In legal literature, the following are also classified as circumstances excluding the criminality of an act: compliance with the law, consent of the victim, performance of professional functions or duties alongside execution of a binding order, exercise of one's right, and others.

Article 13 of the Constitution of the Republic of Kazakhstan provides as follows: “Everyone shall have the right to recognition of their legal personality and shall have the right to protect their rights and freedoms by all means not contrary to the law, including necessary defense.” Thus, the institution of necessary defense originates in the constitutional regulation of the Fundamental Law of the State and finds its continuation in various branches of law. Accordingly, necessary defense is enshrined in Article 32 of the Criminal Code of the Republic of Kazakhstan.

Pursuant to Part 1 of the Article under commentary, necessary defense shall be recognized as the lawful protection of the person and rights of the defending person and other persons, as well as legally protected interests of society and the State, against a socially dangerous encroachment, including by inflicting harm upon the person committing the encroachment.

The right to necessary defense belongs equally to all persons, regardless of their professional or other special training and official position, sex, age and other circumstances. Consequently, for example, representatives of the authorities not only possess the right to necessary defense, but all the conditions governing the lawfulness of inflicting harm also apply to them without any restrictions. A person has the right to necessary defense regardless of which legally protected interest is subjected to the socially dangerous encroachment, whether that interest belongs personally to the defending person or to other persons, and also regardless of the possibility of avoiding the socially dangerous encroachment or seeking assistance from other persons or State bodies.

Criminal legislation permits necessary defense because it is directed against socially dangerous acts and, therefore, constitutes an act that is not socially dangerous but, on the contrary, socially beneficial.

The institution of necessary defense in criminal law is intended to promote the strengthening of law and order. It contributes to preventing the commission of criminal offenses and helps deter persons intending to commit a criminal offense from carrying out their unlawful intentions. Necessary defense is one of the means of protecting the rights and interests of individuals, as well as public and State interests.

The protection by criminal law of the rights and interests of persons acting in a state of necessary defense while repelling a socially dangerous encroachment constitutes one of the legal guarantees for increasing citizens' active participation in suppressing criminal offenses.

The law encourages every person to actively counter socially dangerous encroachments: the provisions on necessary defense also apply where a person has the opportunity to avoid the encroachment or seek assistance from other persons or public authorities.

It should be noted that the effectiveness of exercising the right to necessary defense largely depends on the State's guarantee of that right and on the absence of any danger of criminal prosecution for a person protecting personal, public and State interests.

However, unfortunately, it must be acknowledged that serious shortcomings and errors still occur in investigative and judicial practice when applying the institution of necessary defense, resulting in unjustified convictions. Law enforcement practice relating to necessary defense and exceeding its limits is inconsistent and contradictory. It is characterized by a prosecutorial bias. If we want the institution of necessary defense to function fully in combating criminal offenses, this practice must be changed without delay.

Necessary defense in law is a subjective right of a citizen. Every person has the right to protect personal interests, property, authority and other interests from criminally unlawful encroachments by means of an act of necessary defense. The exercise of this right by a person constitutes their civic duty and moral obligation. Every citizen of society has the right to protect themselves and other persons from criminally unlawful encroachments by offenders and thereby suppress criminally unlawful acts. In the system of criminal law, necessary defense is an independent right of a citizen by its very nature, arising from the existence of a criminally unlawful encroachment.

Citizens are not under an obligation to carry out an act of necessary defense. The law cannot require citizens, under threat of punishment, to exercise the right to necessary defense that belongs to them. A person may, without resorting to necessary defense, evade an impending attack, seek assistance from other persons, and so forth. However, in certain situations, for example, when an attack is being committed against State or public interests, or against the life or health of other persons, necessary defense may constitute a moral obligation of citizens.

Certain categories of persons have not only a moral but also a legal obligation to defend against an attack. For example, a sentry is obliged to defend the facility entrusted to them against an attack, etc. Refusal to defend in such cases may contain the elements of a specific criminal offense provided for in Article 446 of the Criminal Code, “Violation of Statutory Rules Governing Guard (Watch) Duty”, or constitute a disciplinary offense.

Certain categories of citizens have the right to necessary defense within the scope of their professional activities. Thus, Article 59 of the Law of the Republic of Kazakhstan dated January 6, 2011, “On Law Enforcement Service”, stipulates that “...firearms and other weapons, special means and physical force shall be used for the purpose of stopping socially dangerous acts, detaining and delivering to law enforcement bodies the persons who committed them, taking into account the nature of the offenses and the specific circumstances.” Thus, the legislator permits the infliction of harm upon the person committing the encroachment, up to and including causing death.

Combating criminal offenses can be effective only if it is carried out through active means. Necessary defense is one such active means. For example, four unidentified individuals snatched a bag from a man and attempted to flee. At that moment, police officers E. and K. happened to be nearby. They attempted to detain the robbers, but the latter resisted and beat one of the police officers. The second police officer used his service weapon, firing three warning shots into the air and one shot aimed at the attacker. One of the attackers, who had sustained a gunshot wound to the right lower leg and bone damage, was taken to a regional hospital. The second robber was also arrested. The use of the firearm in this case was recognized as lawful.

Necessary defense eliminates the public danger of an act if it complies with certain conditions relating both to the encroachment and to the defense. Only when these conditions are present is the act lawful; it does not contain the elements of a criminal offense and cannot entail criminal liability. An act committed in the exercise of the right to necessary defense is not merely non-punishable but lawful. The conditions governing the lawfulness of an act of necessary defense must be determined in accordance with the requirements of the law.

Part 2 of the Article under commentary sets out the legally significant features of necessary defense. This provision states that the infliction of harm upon the person committing an encroachment while acting in a state of necessary defense shall not constitute a criminal offense, that is, when protecting the person, dwelling, property, land plot and other rights of the defending person or other persons, as well as legally protected interests of society or the State, against a socially dangerous encroachment by inflicting harm upon the person committing the encroachment, provided that the limits of necessary defense have not been exceeded.

Thus, necessary defense is recognized as lawful when a number of conditions are present, which are divided into two groups: the first relates to the encroachment, and the second to the defense.

The conditions governing the lawfulness of necessary defense relating to the encroachment must be as follows:

• the encroachment must be socially dangerous;
• the encroachment must be imminent;
• the encroachment must be real.

The social danger of an encroachment is determined by the fact that it possesses such characteristics according to its objective features. From a legal standpoint, an encroachment most often takes the form of a criminal offense. A criminal offense may consist of attempted murder, infliction of harm to health, rape, robbery or assault.

Paragraph 2 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007, “On the Application of Legislation on Necessary Defense”, states that an encroachment shall be recognized as socially dangerous if it is directed at causing harm to socially significant values of the defending person or other persons, or to interests of society and the State protected by law. Accordingly, the objects of protection in necessary defense may include human rights, namely life, health, sexual inviolability, honor and dignity, property, dwelling, land plot and other rights belonging both to the defending person and to other persons, as well as the interests of society and the interests of the State.

The encroachment against which a person has the right to defend themselves may be intentional or negligent; it may contain the elements of a criminal offense or may not be criminally unlawful. However, these circumstances do not affect the defending person's right to protect themselves, since the defending person has an equal right to defend themselves against an intentional or negligent encroachment originating from a person subject to criminal liability, as well as directly against an insane person or a person who has not reached the age at which criminal liability arises.

It should be noted that not every intentional criminal offense may serve as a legal basis for the exercise of the right to necessary defense. The right to necessary defense does not arise in the case of an intentional criminal offense that cannot immediately and inevitably cause harm to public relations. This is characteristic, for example, of the commission of economic smuggling (Article 234 of the Criminal Code), giving knowingly false testimony or knowingly false conclusions by an expert or specialist, or incorrect translation (Article 420 of the Criminal Code), etc.

Socially dangerous omission cannot serve as a basis for necessary defense, since it does not constitute an encroachment. In the case of omission, what takes place is not its suppression but coercion to perform an action, which differs from necessary defense and is possible only where, without the use of force, it is impossible to compel a person to perform their legal duty. In other words, the necessity of inflicting harm upon a person who fails to act may be considered from the standpoint of extreme necessity.

In legal literature, the question is sometimes raised as to whether necessary defense is possible against the actions of persons vested with public authority. The general rule is that defense is inadmissible against lawful actions of persons vested with public authority that fall within their competence, for example, during the detention of an offender. Liability for resisting a representative of authority arises if such resistance occurs while the person vested with public authority is performing the duties assigned to them. This provision of the law is of substantial importance. It follows from it that it is precisely the lawful activities of representatives of authority that are protected by criminal law.

There are certain disagreements regarding the question of whether necessary defense is possible against unlawful actions of persons vested with public authority. There is a position according to which the possibility of defense against unlawful actions of officials should be restricted. Necessary defense should be recognized as lawful against actions of officials involving an encroachment upon the victim's person. Other unlawful actions of officials may be appealed in accordance with the established procedure, and it would hardly be justified in such cases to excuse the use of violence against an official by referring to a state of necessary defense.

Thus, proponents of this position believe that necessary defense against unlawful actions of persons vested with public authority is possible only in cases of encroachment upon the victim's person. In their opinion, necessary defense against other unlawful actions of persons vested with public authority is inadmissible. It appears, however, that this position is not entirely correct, since it fails to take into account all the legal requirements governing necessary defense. Necessary defense is possible against any unlawful actions of officials. This follows, first and foremost, from the law itself, which permits necessary defense against socially dangerous criminally unlawful encroachments without making any reservations concerning the identity of the attacker. Consequently, necessary defense is permissible against actions of persons vested with public authority that are unlawful in their essence and directed at causing substantial, immediate and imminent harm to a protected interest, and it does not differ in any way from defense against an encroachment committed by any other person. For example, a traffic police officer, while intoxicated, stopped a vehicle, threatened the driver with a pistol, ordered him out of the car, took the keys and intended to drive the vehicle to visit a friend. The driver did not lose his composure, used self-defense techniques and took the traffic police officer to the duty station. The driver's actions were lawful and constitute necessary defense.

A person who inflicts harm upon another person in connection with the latter's commission of actions that formally contain the elements of a criminal offense but, due to their insignificance, do not pose a public danger cannot be recognized as having acted in a state of necessary defense.

There is also no real socially dangerous encroachment in the case of provocation of defense, which constitutes the artificial creation of a situation that a person uses as a pretext for retaliating against another person. According to the provocateur's intention, such retaliation must externally appear to be necessary defense. Therefore, the provocateur initially, secretly from those around them, commits certain immoral or unlawful acts that provoke a response from another person, and then, referring to an allegedly committed socially dangerous encroachment, uses that response to inflict harm. In such situations, not only is there no objective basis for defense, but its purpose is also absent: the person pursues the goal of revenge or retaliation rather than the protection of the interests of the individual, society or the State.

Paragraph 6 of the above-mentioned Normative Resolution of the Supreme Court of the Republic of Kazakhstan also states that a person who, by their conduct, deliberately provoked an attack in order to subsequently use that situation as a pretext for committing unlawful acts (for example, starting a fight, carrying out a reprisal, committing an act of revenge, etc.) cannot be recognized as having acted in a state of necessary defense.

If the person who committed the provocation did not actually cause harm, there are no grounds for treating the response of the provoked person as having been committed in a state of necessary defense. Such actions entail liability on general grounds.

Nor can actions of a person directed against someone who was themselves acting in a state of necessary defense or acting lawfully in other circumstances (for example, when detaining an offender) be regarded as necessary defense. As required by the highest judicial authority of our State, liability for the acts committed in such cases arises on general grounds.

An encroachment may occur in several episodes; in this case, each subsequent episode, possessing the characteristics of a socially dangerous, imminent and real encroachment, may serve as a basis for necessary defense, for example, repeated instances of extortion involving the use of violence against the same person.

An important issue is the legal characterization of the use of means and mechanisms installed in advance to protect legally protected interests and activated in the absence of the person who installed them. The difficulty in assessing such a situation arises from the fact that, although these protective devices are installed in advance, they are supposed to be activated during a socially dangerous encroachment, meaning that necessary defense is carried out with their assistance in such cases. However, the device may cause harm to a person who has not committed a socially dangerous encroachment. Therefore, the legally significant issues are when and against whom such devices are activated and what harm they cause.

It seems that such devices, which are activated autonomously at the moment an encroachment is committed and inflict harm upon the person committing it, are intended to suppress the encroachment. All the conditions governing the lawfulness of necessary defense are met if the harm caused is not manifestly disproportionate to the nature and degree of danger of the encroachment. If, however, the harm caused is manifestly excessive, the actions of the person may be recognized as exceeding the limits of necessary defense.

Article 35 of the Code of Administrative Offenses of the Republic of Kazakhstan permits necessary defense against administrative offenses. For example, on the street, a drunk man named G. began harassing spouses D., who were on their way to the theater. The spouses crossed to the other side of the road. G. followed them, grabbing the woman by the arm. Her husband then pushed G. hard in the chest. G. lost his balance and fell, breaking a bone in his arm as a result of the fall. The court recognized that D. had acted in a state of lawful necessary defense against a person who had committed petty hooliganism.

When applying necessary defense against administrative offenses, it should be borne in mind that an administrative offense is less dangerous than a criminally unlawful encroachment, and therefore the intensity of the protective measures used against an administrative offense must be considerably lower than when defending against criminally unlawful encroachments. Certain administrative offenses have an insignificant degree of public danger, and therefore the lawfulness of inflicting harm upon the offender is entirely excluded when defending against them.

There is another circumstance that should be noted. The above-mentioned provision of the Code of Administrative Offenses stipulates that a person shall not be subject to administrative liability when acting in a state of necessary defense. However, when defending against encroachments for which liability is provided for by the Code of Administrative Offenses, it is easy to exceed the limits of necessary defense. In such cases, liability may arise under the provisions of criminal legislation. Therefore, extreme caution is required when exercising the right to necessary defense against encroachments that constitute administrative offenses.

The imminence of an encroachment determines the temporal limits of necessary defense.

An encroachment is considered imminent:

• at the very moment of the socially dangerous encroachment;
• when there is a real threat of an attack;
• when the defense immediately follows an act of encroachment that has already ended, but, due to the circumstances of the case, the moment of its termination was not clear to the defending person.

An encroachment must be imminent, that is, it must have begun and not yet ended. It must be capable of inevitably and immediately causing socially dangerous harm. An encroachment shall be recognized as imminent if it has already begun or if the immediate threat of its commencement was so obvious that it was clear that the encroachment could occur at any moment. For the proper assessment of the imminence of an encroachment, it is important to evaluate the conduct of the person committing it, the nature and intensity of their actions, which provide grounds for the defending person to perceive the threat as real. Failure to take preventive measures in such cases places the person in obvious danger. The Military Articles of Peter I stated: “One should not wait for the adversary to strike the first blow, for by that first blow something may happen that will make it entirely impossible to resist.”

In order to recognize a person as having acted in a state of necessary defense, it must be established that a socially dangerous encroachment took place and that this encroachment served as the basis for the person's actions involving the infliction of death or harm to the health of the attacker, for the purpose of preventing or repelling that encroachment.

Necessary defense is permissible not only when the attacker has already caused harm through intentional or negligent actions, but also when the infliction of harm has not yet begun, provided that a real threat of such harm has been created.

For example, in the evening, in an unpopulated area, several people silently approached citizen K. In this situation, K. perceived the actions of the unknown individuals as a threat and struck one of those approaching in the head first. In this case, the encroachment had not yet begun, but the circumstances in which the events occurred gave K. grounds to believe that a real threat of attack had arisen.

The infliction of harm upon a person who has not actually committed a socially dangerous encroachment but who, in the opinion of the defending person, might commit one at some point in the future does not constitute necessary defense, since the act is directed at causing harm to an indefinite group of persons rather than repelling a specific socially dangerous encroachment originating from a particular person (for example, causing harm to a person who happened to be nearby as a result of the explosion of a device installed by the owner of an orchard to prevent the theft of fruit).

A person shall not be recognized as having acted in a state of necessary defense where the defensive actions were directed against an attack that had already ended. An attack shall be considered completed if it has clearly ceased without having been brought to completion, or if the attack has already been fully carried out.

However, the state of necessary defense cannot be considered to have ceased where the act of defense immediately followed an act of encroachment that had already ended, but, due to the circumstances of the case, the moment of termination of the encroachment was not clear to the defending person. When assessing this situation, it is necessary to determine how obvious the moments when the encroachment began and ended were to the accused and whether, under the specific circumstances, they could correctly assess the situation.

The cessation of an encroachment must be distinguished from its brief suspension for the purpose of subsequently continuing it with even greater intensity. In such situations, the real threat to legally protected interests has not been eliminated, which gives the right to continue necessary defense. The mere mechanical cessation of socially dangerous actions by the person committing the encroachment (cessation of the infliction of blows) is not sufficient in itself. A legal assessment will be correct and consistent with the spirit and letter of the law only if it takes into account the prevailing circumstances and the defending person's perception of the situation. Without such consideration, this may lead, and sometimes does lead, in practice to an unjustified narrowing of the institution of necessary defense, which, in turn, results in the unlawful prosecution of persons who acted in a state of necessary defense.

As stated above, the next condition governing the lawfulness of necessary defense relating to the encroachment is the reality of the encroachment. The reality of an encroachment means that it must be objective and exist in actual reality rather than in the imagination of the person concerned. Necessary defense is excluded against an imaginary encroachment, that is, one that does not actually exist and where there was no threat of its commission. Therefore, the actions of a person “defending” themselves against an imaginary, non-existent encroachment cannot be regarded as necessary defense.

In this case, there is imaginary defense, since no real encroachment took place. Imaginary defense is a type of factual mistake, and the question of a person's liability in cases of imaginary defense must be resolved according to the rules governing such mistakes with regard to the form of guilt. Necessary defense must be distinguished from imaginary defense. In the case of imaginary defense, the socially dangerous encroachment is actually absent, but the circumstances of the incident provide grounds for the defending person to believe that it is taking place, and they therefore mistakenly believe that they are acting against such an encroachment. In this case, the use of protective measures by a person who neither realized nor could have realized that their assumption was erroneous should be treated as an act committed in a state of necessary defense. Criminal liability for harm caused during imaginary defense arises only when the following circumstances are present simultaneously:

• when, due to the prevailing circumstances, the person causing the harm reasonably believed that they were acting in a state of necessary defense but nevertheless exceeded its limits;
• when, exercising due diligence, the person causing the harm could have correctly assessed the circumstances and concluded that no socially dangerous encroachment existed (for example, a person saw an unfamiliar individual leaving the neighbors' apartment with a bag, assumed that the individual had committed a theft, inflicted harm upon them, but it turned out that the individual was a relative of the neighbors). In such cases, the person is liable for causing harm through negligence (Paragraph 7 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007).

While intoxicated, D., at approximately 12 o'clock at night, mistakenly climbed through the window into S.'s house, believing it to be the house of his acquaintance Sh. The homeowner, S., who was also intoxicated, mistook D. for a thief and began beating him, inflicting several blows with a wooden flower stand. He continued striking him even when the victim was lying on the floor and no longer posed any physical threat; the victim was not even able to resist. The court reasonably found that S.'s actions constituted murder committed by exceeding the limits of necessary defense, as provided for in Article 102 of the Criminal Code.

The conditions governing the lawfulness of necessary defense relating to the defense itself are as follows:

• defense is permissible when repelling an attack against both one's own personal interests and public or State interests;
• defense must be carried out by inflicting harm only upon the person committing the encroachment;
• defense must not exceed the limits of necessary defense.

In accordance with Paragraph 2 of Part 1 of Article 32 of the Criminal Code, all persons, regardless of whether they have the opportunity to flee or use other methods to avoid an attack, have the right to take active protective measures against a socially dangerous encroachment by inflicting harm upon the person committing the encroachment. The choice of the method of defense in necessary defense is made at the discretion of the defending person.

According to S. I. Ozhegov's Dictionary of the Russian Language, protection is understood as the desire “to safeguard, shield against encroachments, hostile actions and danger”. Defense must be active; defense through inaction is considered impossible.

Necessary defense, as an active form of suppressing and repelling an encroachment, cannot be reduced to simple resistance by pushing the attacker away or parrying their blows. It may also take the form of a counterattack against the person committing the encroachment.

At the same time, defense cannot serve as grounds for inflicting excessively severe harm upon the attacker where the need for such harm is not dictated by the requirements of protection.

The limits of defense are determined from the perspective of the person exercising the right to necessary defense, that is, by the measures and intensity that the person considers necessary to repel the particular socially dangerous encroachment. This is correct, since it is primarily the defending person who risks their life and health, and it is precisely their actions that initiate the defense. The subjective perception of the person acting in a state of necessary defense must necessarily be based on the actual circumstances of the encroachment. However, the legal assessment shall be made by the judicial authority.

For example, in the evening, an unfamiliar person knocked on the door of an apartment belonging to a 75-year-old man who lived alone. K. did not open the door. The knocking became more persistent. For the purpose of self-defense, K. took a hunting rifle, loaded it and went into the hallway. At that moment, the stranger broke down the door with an axe and moved towards the homeowner. K. fired a shot at the attacker's throat. The attacker died from the resulting wound. In this example, K. (the defending person) was inside his own apartment, and the attacker had broken down the door with an axe and forcibly entered. Having assessed the situation as posing a real threat to his life and property, K. used a firearm for self-defense and killed the attacker. The court classified K.'s actions as having been committed in a state of necessary defense and found him not guilty.

The protection of interests in necessary defense means the range of values that may be protected through necessary defense. These include the interests of the individual, dwelling, property, land plot and other rights of the defending person. Moreover, as stated in the law, these may include not only the interests of the defending person but also the interests of other persons, as well as the interests of society or the State.

Criminal law recognizes the right to defense not only for the person who is subjected to an attack but also for any third party who witnesses an immediate criminally unlawful encroachment upon the person or property of individual citizens, or upon the interests of public authority or property. In this regard, judicial authorities frequently make errors and unjustifiably restrict citizens' rights to exercise necessary defense as established by law.

There is no need to obtain the consent of the victim to their protection by third parties in order to carry out an act of defense against an attack upon another person.

The next condition of necessary defense relating to the defense itself is that the defense must be carried out by inflicting harm only upon the person committing the encroachment.

Infliction of harm may be recognized as having been committed in a state of necessary defense, as stated in Paragraph 4 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007, if it was inflicted specifically upon the person who committed the socially dangerous encroachment (including cases where that person used machinery, animals, insane persons or minors). However, when carrying out an act of necessary defense, the legislator does not require that the harm resulting from the defense be inflicted directly upon the person of the attacker. In my opinion, harm may also be inflicted upon the attacker's property interests.

Defense against an encroachment in the course of exercising the right to necessary defense may take various forms of inflicting harm upon the attacker: deprivation of life; infliction of grievous or moderate bodily harm; deprivation of liberty; destruction, damage or taking of property with the aid of which a criminally unlawful encroachment upon the victim is being committed; damage to property (for example, clothing) where this is associated with inflicting harm upon the attacker's person, and other consequences. P., while intoxicated, began beating his wife S. Then he pressed her against the railing of the porch and began strangling her by squeezing her neck. In self-defense, S. used the kitchen knife with which she had been peeling potatoes to inflict a fatal wound upon her husband. The court recognized her actions as having been committed within the limits of necessary defense.

As a rule, the exercise of necessary defense is directly associated with the infliction of some form of harm upon the attacker's person. The degree of harm is determined in each specific case in accordance with the nature and degree of danger of the encroachment. As the law stipulates, defense must correspond to the nature and degree of danger of the encroachment.

The fundamental rule of necessary defense is that the infliction of harm must not be directed against third parties. The protection of any interests by inflicting harm not upon the attacker but upon third parties does not constitute an act of necessary defense. In this case, depending on the circumstances of the matter, the rules governing extreme necessity may apply.

However, inflicting harm upon a third party as a result of a mistake concerning the identity of the person committing the encroachment excludes the lawfulness of the defense. Liability for such “defense” arises on general grounds, that is, depending on the presence of guilt.

Another condition of necessary defense is that the defense must not exceed the limits of necessary defense.

The term “limit” is interpreted as “the boundary of something; that which restricts something; the final or extreme boundary of something”. “Beyond the limits” means outside something, beyond boundaries, outside what is permissible or possible (Ozhegov S. I. and Shvedova N. Yu. Explanatory Dictionary of the Russian Language. Moscow, 1997. p. 580).

The provision on necessary defense not only establishes active resistance to a socially dangerous encroachment but also requires the defending person not to exceed its limits.

Exceeding the limits of necessary defense is defined by criminal legislation as “an obvious disproportion between the defense and the nature and degree of public danger of the encroachment, as a result of which the person committing the encroachment is inflicted harm that is manifestly excessive and not necessitated by the circumstances. Such excess entails criminal liability only in cases of intentional infliction of harm” (Part 3 of Article 32 of the Criminal Code).

An obvious disproportion means a clear and unquestionable, substantial disproportion between the defense and the nature and degree of the encroachment, where the attacker is unnecessarily inflicted with serious harm that is not required to prevent or suppress the encroachment.

Necessary defense is the protection of legally protected interests by inflicting harm upon the person committing the encroachment. However, necessary defense permits not just any harm, but only such harm as is necessitated by the need to prevent or suppress the encroachment.

Where the defending person resorts to means and measures of defense whose use was not necessitated by either the nature or degree of danger of the encroachment or the actual circumstances, and unnecessarily inflicts serious harm upon the attacker that is manifestly not required to prevent or suppress the encroachment, this constitutes exceeding the limits of necessary defense.

For the proper determination of the limits of necessary defense and the establishment of whether the encroachment and the defense against it correspond or fail to correspond, it is necessary in each case to establish and assess: the nature of the encroachment, its public danger, the intensity of the encroachment, the correspondence or lack of correspondence between the degree of defense and the attack, the nature of the harm inflicted upon the person committing the encroachment, the obviousness of the excessive nature of the harm caused, the circumstances that did or did not necessitate the infliction of such harm, and other relevant factors.

The harm inflicted upon the person committing the encroachment must be relatively proportionate not only to the nature and danger of the encroachment but also to the circumstances of the defense.

The circumstances of the defense are determined by the actual capabilities and means available to the defending person to repel the encroachment without resorting to inflicting serious harm upon the attacker. The nature of such circumstances depends on the actual balance of forces, capabilities and means available to the defending person and the person committing the encroachment.

There are cases where the circumstances of the defense are such that the defending person has an obvious advantage in strength over the attacker and is aware of this circumstance. In such a situation, there is no need to inflict serious harm upon the attacker to ensure effective defense. It is sufficient, for example, to strike blows, inflict beatings or cause minor bodily harm to the attacker.

When assessing the nature of the encroachment, Paragraph 10 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007, states that it is necessary to take into account the direction of the attacker's actions and the nature of the harm caused by them, which may be physical, property-related or moral.

The degree of public danger of a socially dangerous encroachment is determined by its nature, as well as by the activity of the attackers, their number, age characteristics, the presence of weapons and other specific circumstances.

The correspondence of the defense to the nature and degree of public danger of the encroachment presupposes that the defending person must take into account the actual balance between their own forces and those of the attacker and, taking all circumstances into account, must not allow the infliction of harm greater than that necessary to suppress the encroachment. At the same time, a discrepancy between the harm intentionally inflicted upon the attacker and the extent and nature of the harm caused by the attacker, or the harm that could have been caused, entails criminal liability only where there is an obvious and manifest absence of any necessity to inflict such harm in order to exercise the right to defense (Paragraph 11 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan).

In my opinion, the main issue here is nevertheless whether the defending person considered their actions necessary and sufficient to suppress the encroachment. Everything else should derive from the defending person's subjective assessment.

When an encroachment is committed by a group of persons, the defending person has the right to apply against any of them such protective measures as are necessitated by the danger and nature of the actions of the entire group.

Exceeding the limits of necessary defense should not be reduced to an obvious discrepancy between the instruments or means of defense and the instruments or means of the encroachment. The main issue is not which instruments and means are used by the defending person, but what harm they are used to inflict and how necessary they are to repel the encroachment.

When determining whether the limits of necessary defense have been exceeded, a certain degree of proportionality must also be taken into account between the harm inflicted upon the person committing the encroachment and the nature of the danger of the encroachment.

For example, an intoxicated B. came to K.'s home and started an argument with him. However, K. managed to escort B. out. B., having called his brother for assistance, returned to K.'s home and began calling him outside. Fearing that her husband would be assaulted, K.'s wife and their acquaintance Z. demanded that the brothers leave the house. However, B. used violence against K.'s wife, grabbing her by the neck and striking her on the head. In response, K. took a rifle and fired twice at the brothers. One of them was killed, and the other sustained grievous bodily harm.

The court of first instance concluded that K. had not been acting in a state of necessary defense and classified his actions as attempted murder. The Judicial Collegium pointed out that the court had failed to take into account that K. had lawfully defended his family against an attack but had nevertheless exceeded the limits of necessary defense.

Exceeding the limits of necessary defense is a socially dangerous act and therefore contains the elements of a crime provided for in Articles 102 and 112 of the Criminal Code. However, the commission of a crime under circumstances involving the exceeding of the limits of necessary defense is relatively less dangerous than the infliction of the same harm in the absence of such circumstances. Article 53 of the Criminal Code identifies the commission of a criminal offense in violation of the conditions governing the lawfulness of necessary defense as a mitigating circumstance.

Revenge against an offender for an attack that has been committed must be distinguished from exceeding the limits of necessary defense due to the untimeliness of the defense.

S. was in the courtyard of a house. Two young men jumped off a passing horse-drawn cart and inflicted bodily harm upon him. They then got back into the cart and drove away. S. called his elder brother, took a rifle, and together they caught up with the departing men in order to take revenge. In doing so, they killed one of them. At trial, S. stated that they had been defending themselves.

In this example, the attack by the two young men had ended and, consequently, defense was inadmissible in such circumstances. In fact, S. and his brother killed the victim out of revenge rather than while acting in a state of necessary defense. Thus, S.'s actions fall under the elements of the crime provided for in Article 99 of the Criminal Code.

Exceeding the limits of necessary defense due to the disproportion between the means of defense used and the nature of the attack taking place is the most frequently encountered case of exceeding the limits of necessary defense.

Establishing an obvious disproportion between the defense and the nature and danger of the encroachment, as required by Article 32 of the Criminal Code, is associated with a careful examination of all the specific circumstances under which the act of necessary defense is carried out. In doing so, it is necessary to take into account the degree of danger of the attack, the imminence of its execution, its force and speed, the nature of the means chosen by the attacker, and so forth. The object of the encroachment is also of substantial importance when determining the degree of danger of an attack.

It should be noted that causing death while repelling an encroachment involving violence that is not dangerous to human life does not always constitute exceeding the limits of necessary defense. Thus, if death is caused while repelling an attempted rape or a threat to inflict grievous bodily harm, it cannot be unequivocally concluded that the limits of necessary defense have been exceeded. If no obvious disproportion between the defense and the nature and degree of public danger of the encroachment has been established, the actions of the defending person must be recognized as lawful.

The means of attack and the method by which the attack is carried out are of substantial importance in determining the degree of its intensity. For example, a robbery involving violence dangerous to the life and health of the victim is more intense than the open theft of property without the use of violence against the person. However, under certain circumstances, an unarmed attack (where the attacker is strangling the victim) may be no less intense than an armed attack. Therefore, depending on the specific circumstances, the use of a weapon in defense against an unarmed attack cannot be ruled out. It must be taken into account that people differ in strength, agility and their ability to handle weapons or defend themselves without weapons. Requiring the defending person to use the same weapon as the attacker places the defending person in a less favorable position than the attacker. This is because, firstly, it is not always possible to select proportionate means of defense. Secondly, the defending person has no time to reflect on whether the methods and means of defense being used are proportionate to the methods and means of the encroachment. The means of defense, in my opinion, may also be more effective.

It should be borne in mind that, in a state of emotional disturbance caused by an encroachment, the defending person is not always able to accurately assess the nature of the danger and choose proportionate means of defense. Therefore, the fact that a weapon or other objects used in the attack pass from the attacker to the defending person, or that the defending person causes greater harm to the attacker than the harm prevented or the harm sufficient to repel the attack, cannot in themselves indicate that the limits of necessary defense have been exceeded, provided that no obvious disproportion between the defense and the nature and danger of the encroachment has been committed.

When assessing the correspondence between the attack and the defense, the provisions of Part 3 of Article 32 of the Criminal Code must be taken into account, since the legislator has defined therein the boundaries of exceeding the limits of necessary defense under which a person is subject to criminal prosecution, and has also established the conditions under which the infliction of harm upon the person committing the encroachment does not constitute exceeding the limits of necessary defense.

Part 3 of Article 32 of the Criminal Code establishes criminal liability for exceeding the limits of necessary defense only in cases of intentional infliction of harm upon the person committing the encroachment. In this regard, crimes committed by exceeding the limits of necessary defense are characterized, from the subjective side, solely by intentional guilt. If harm is inflicted upon the attacker as a result of negligence, the criminality and punishability of such an act committed while exceeding the limits of necessary defense are excluded.

When assessing the correspondence between the attack and the defense, it is necessary to take into account cases of necessary defense in which the infliction of harm upon the person committing the encroachment does not entail criminal liability.

In the provision under consideration, the legislator has expanded the list of conditions under which the infliction of harm upon the person committing an encroachment during necessary defense does not constitute exceeding its limits. These include: an encroachment upon human life; an encroachment involving an armed attack; an encroachment involving violence dangerous to the life of the defending person; an encroachment involving violence dangerous to the lives of other persons; an encroachment involving an immediate threat of the use of violence dangerous to life; an encroachment involving violent intrusion into a dwelling or premises; and the suddenness of the encroachment, as a result of which the defending person was unable to objectively assess the degree and nature of the danger of the attack. Such acts are regarded as having been committed within the limits of necessary defense and do not entail criminal liability.

Weapons, the possession of which by an attacker constitutes a circumstance excluding the exceeding of the limits of necessary defense, should be understood as items classified under the Law of the Republic of Kazakhstan dated December 30, 1998, “On State Control over the Circulation of Certain Types of Weapons”, as firearms or cold weapons, or ammunition capable of causing a person's death.

Where the attacker is armed with other objects, for example, household or other items (a hammer, an axe, a kitchen knife, sprays containing tear gas or other irritants, stones, sticks, bricks, etc.), liability for the harm caused is excluded provided that the limits of necessary defense have not been exceeded.

If the offender used the above-mentioned objects to encroach upon human life, any responsive actions taken by the defending person, up to and including depriving the attacker of life, should be regarded as having been committed in a state of necessary defense.

Violence dangerous to life should be understood as the infliction of grievous bodily harm upon the defending person or other persons.

A threat to use violence should be understood as actions expressing an intention to exert coercive psychological influence (a threat to take a person's life or inflict grievous bodily harm). An immediate threat to use violence dangerous to life presupposes that the threat is real and capable of being carried out.

According to Subparagraph 49) of Article 7 of the Criminal Procedure Code, a dwelling is a room or structure intended for temporary or permanent residence of one or more persons, including: privately owned or rented apartments, houses, garden houses, hotel rooms, cabins, compartments; verandas, terraces, galleries, balconies, attic structures, basements and attics directly adjoining them in a residential building, except in an apartment building, as well as river or sea vessels and others.

Premises should be understood as any permanent or temporary, stationary or mobile building or structure intended to accommodate people or material assets. At the same time, a mandatory condition is violent intrusion, that is, the attacker enters a dwelling or premises using any form of violence, whether physical or psychological.

The suddenness of an encroachment should be understood as its unexpected nature, where the attacker uses this circumstance to catch the defending person off guard. In such a case, the defending person is not always able to objectively assess the degree and nature of the danger of the attack and inflict proportionate harm upon the attacker. However, the legislator recognizes such actions of the defending person as having been committed within the limits of necessary defense.

It should be noted that Article 66 of the Criminal Code provides for the conditions under which a person may be released from criminal liability for exceeding the limits of necessary defense. That is, a person who has exceeded the limits of necessary defense as a result of fear, fright or confusion caused by a socially dangerous encroachment may, taking into account the circumstances of the case, be released from criminal liability by the court.

Liability for inflicting harm during necessary defense arises only where the act of the defending person contains the elements of a crime provided for in Article 102, “Murder Committed by Exceeding the Limits of Necessary Defense”, and Article 112, “Infliction of Grievous Bodily Harm by Exceeding the Limits of Necessary Defense”. It follows that the infliction of moderate bodily harm upon an attacker while exceeding the limits of necessary defense is not considered a criminal offense and does not entail criminal liability.

In conclusion, I would like to express a number of my considerations aimed at improving the institution of necessary defense.

An analysis of Paragraph 2 of Part 3 of Article 32 of the Criminal Code shows that the legislator focuses therein only on cases where an encroachment is directed against human life, or where another encroachment involves an armed attack or violence dangerous to the life of the defending person or other persons, or an immediate threat of such violence, or violent intrusion into a dwelling or premises, as well as cases where, due to the suddenness of the encroachment, the defending person was unable to objectively assess the degree and nature of the danger of the attack.

By doing so, has the legislator not significantly weakened the protection of such important values for individuals and society as health security, sexual freedom and inviolability, personal liberty, public order and peace (malicious hooliganism involving the use or attempted use of firearms, gas weapons, knives, knuckle-dusters and other cold weapons, or other objects specially adapted to cause harm to health)? I believe that it has. In such cases, the focus of law enforcement activities is logically shifted towards the exceeding of the limits of necessary defense.

For the sake of fairness, it must be acknowledged that the professional level of law enforcement practitioners today is far from perfect. For objective, and perhaps subjective, reasons, it is constantly declining. And within this professional environment, the provisions of the law are interpreted unequivocally: if an encroachment threatens the life of the defending person, any harm may be inflicted upon the attacker, up to and including death; in other cases, as a rule, the exceeding of the limits of necessary defense is established, or even an ordinary crime against the person. Such is the logic of law enforcement practice. I am convinced that the legislator has much to consider.

Many authors point to the advisability of replacing the term “necessary defense” with the term “necessary protection”, which they consider more precise. The term “defense” suggests a passive (repelling) form of conduct, whereas “protection” includes an active element. In my opinion, there is a rational basis to this approach.

Necessary defense will exist forever because it is based on the law of necessity, and this law, by its very nature, is eternal. Therefore, the concept of necessary defense has existed since ancient times and will never cease to exist (A. F. Koni).

Commentary dated 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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