The Human Rights Ombudsman in the DPR explains the legal peculiarities of absolute necessity as an act that precludes criminal prosecution.
According to Part 1 of Art. 38 of the Criminal Code of the DPR, causing harm to interests protected by criminal law in a state of absolute necessity is not a crime, that is, to eliminate a danger that directly threatens the individual and the rights of this person or other persons, the interests of society or the state protected by law, if this danger could not be eliminated by other means nor did it exceed the limits of extreme necessity.
The Criminal Law provides for the possibility of lawful harm to innocent persons, society, the state, however, in the presence of a combination of factors that will indicate that it was not possible to do otherwise. That is, the circumstances developed in such a way that the infliction of certain harm was justified and prevented the occurrence of other, even more negative consequences. But the legality of the commission of an act falling under the signs of absolute necessity, and, accordingly, excluding the criminality of an act, has its own criminal-legal features.
Thus, if absolutely necessary:
- harm is caused to third parties, society, the state;
- presence of danger (danger exists in reality);
- the degree of harm that was caused should be less than that is prevented;
- elimination of the threat that has arisen is possible only by causing harm to the rights and interests of the individual, society, state that are protected by law, and nothing else.
For example, the driver, having violated the traffic rules, namely, exceeding the permitted speed, lost control of his/her vehicle, which, as a result, overturned and harmed the health of pedestrians standing on the side of the road, at the same time continued uncontrolled movement towards the tanker. Thus, the driver of the tanker, unable to safely manoeuvre, having taken timely measures for emergency braking, taking into account the danger of the cargo being transported, decided to turn from the road, on which the car is moving towards him and thereby entailed the destruction of the state building, which had long ceased to function. As a result of the act of the driver of the tanker truck, significant property damage was caused to the state. However, the driver of the tanker truck deliberately and in a controlled manner pushed his/her vehicle against the building in such a way as to prevent damage to the container filled with a chemical industry substance. Meanwhile, it turned out that the actions of the first driver led to the infliction of grievous bodily harm to one of the pedestrians.
Analyzing the above situation, it is worth noting that the damage caused by the driver of the tanker truck turned out to be less than the possible consequences of the spill of the chemical industry product. In addition, the offender driver who did not collide with the tanker survived and was prosecuted.
In accordance with Part 2 of Art. 38 of the Criminal Code of the DPR, the exceeding of the limits of absolute necessity is recognized as causing harm that clearly does not correspond to the nature and degree of the threatened danger and the circumstances in which the danger was eliminated when harm equal to or more significant than harm prevented was caused to the specified interests. Such excess entails criminal liability only in cases of willful harm.
Often, at the moment of danger, which causes stress, the absence of the necessary period of time to make the only correct decision, cases of incorrect assessment of the current situation are not uncommon.
There are situations when a person, harming rights and interests legally protected in order to prevent the occurrence of an even greater danger, on the contrary, by his/her actions generates more serious harm or is equivalent to that which was supposed to be prevented.
For example, during a forest fire, there was a danger of the fire spreading to nearby residential buildings, through the possible coverage of agricultural buildings with flames. Thus, a citizen destroyed objects with a tractor, at the same time, along the corresponding perimeter, he dug a ditch, which made it possible to prevent the spread of fire to residential buildings. However, it later became clear that it was not necessary to demolish the aforementioned agricultural objects. Destroyed objects were at a significant distance from houses and creating obstacles to fire in the form of a ditch would be quite sufficient. In turn, the person involved in the incident explained that he feared the spread of fire through the demolished buildings downwind to his house, which he built with his own hands and lives in it with his family. Given the absence of deliberate actions on the part of the tractor driver, based on the intentions to secure residential buildings, there was a case of non-objective assessment of the situation.
From the above, we can conclude that cases of absolute necessity are always very ambiguous and require careful research not only for the presence of relevant criminal law criteria but also for the content of the mass of nuances that determine the legality of the actions of each of the participants in the events of the incident.