The Human Rights Ombudsman in the Donetsk People’s Republic explains the legal features of justifiable defence as an act that excludes the onset of criminal responsibility.
Thus, part 1 of Art. 36 of the DPR Criminal Code states that it is not a crime to harm a person that is encroaching in a state of justifiable defence, that is, while protecting the personality and rights of the defender or other persons, the interests of society or the state protected by law, from socially dangerous encroachment, if this encroachment was associated with dangerous violence for the life of a defender or another person, or with an imminent threat of such violence.
Despite the fundamental nature of the provisions of this part of the article, the enforcement of “justifiable defence” includes a lot of nuances, which are expressed in establishing the circumstances of causing harm to the intruder by the defending person (that is, infringing on legal rights). At the same time, an inalienable task of the investigation, the court is also the clarification of events that reflect the presence/absence of corpus delicti on the part of the person that is encroaching.
Often there are situations when the “retaliatory measures” on the part of the defending person exceed the damage initially inflicted by the invader in terms of the degree of public danger. This is due to various factors, ranging from legal ignorance to the deliberate illegal actions of the defender.
Part 2 of Art. 36 of the Criminal Code of the DPR establishes that the actions of the defender do not exceed the limits of necessary defense if this person, due to the unexpectedness of the encroachment, could not objectively assess the degree and nature of the danger of the attack.
Meanwhile, it should be noted that with the necessary defense, the encroachment must be real, that is, it must actually take place. In addition, for defense purposes, harm in the form of physical impact is inflicted on the infringer, and not on third parties. You should also focus on the feature that after the end of the unlawful act on the part of the infringer, the subsequent actions of the attacked person will not be a necessary defense.
Let’s consider some examples. Thus, the citizen was injured, as a result of which the person fell to the ground and could not recover. However, after a certain period of time, the above citizen found his “offenders” and already inflicted injuries on them, believing that criminal law measures would not be applied to him.
Another example of the lack of justifiable defence is the following situation. A person expecting that violence may be used against him by other persons, having prepared a hunting rifle in advance, at the sight of “potential intruders” who came to visit him for the purpose of a conversation, opened fire with all the ensuing consequences.
A citizen subjected to the use of physical violence, taking a knife in his hand, struck his abuser with it several times, thereby depriving him of his life. In this case, the actions of the defender can be qualified as exceeding the limits of justifiable defence, due to the fact that the attacker was not “armed with a knife” and, based on the events and nature of the incident, his/her actions did not see any intent to kill the defender.
Among other things, Part 3 of Art. 36 of the Criminal Code of the DPR regulates that the provisions of this article equally apply to all persons, regardless of their professional or other special training and official position, as well as regardless of the possibility to avoid socially dangerous encroachment or seek help from other persons or authorities.
Thus, the events of each crime, including the circumstances of justifiable defence, are individual in nature, requiring a full and comprehensive investigation, since the absence of justifiable defence, exceeding its limits play a key role in determining the presence or absence of signs of corpus delicti in a person’s actions.