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Application of Weapon Shall Be Deemed As Justifiable Defense Only When Protecting Against Assault


Ivan Bozhko, attorney at Ilyashev & Partners Law Firm
Source: Ukrainian News

Article 27 of the Constitution of Ukraine proclaims the right of everyone to protect their own life and health, life and health of others against any offences.

Implementation of the abovementioned right, in other words the justifiable defense, relates to the circumstances excluding administrative liability (article 19 of the Code of Ukraine on Administrative Offences), as well as the delinquency of the corresponding action (article 36 of the Criminal Code of Ukraine).

Criminal Code contains more detailed definition of the relative notion. It envisages that the justifiable defense means actions performed in order to defend the rights and legal interests of the person being protected or of the other person, as well as public or state interests against socially-dangerous infringement by causing reasonable damage to the infringer sufficient for immediate prevention or termination of assault, provided that the justifiable defense limits have not been exceeded.

Therefore, in order to exclude the delinquent nature of self-defense, these actions should correspond to jeopardy of the infringement or defense conditions. In addition, they should not cause a grievous harm to infringer. According to Ukrainian laws the use of weapon may be regarded as justifiable defense only when it was used for the protection against another armed person or a group of persons, and in order to prevent illegal forcible entry into residence or other facility. Therewith, the injuries caused to infringer(s) shall not affect the qualification of actions of the person protecting himself.

At the same time, items intended for business or sport purposes without any special legal (licensing) regime cannot be regarded as weapons. Therefore, in such cases, it is required to designate whether the person protecting himself had a real opportunity to efficiently prevent the socially-dangerous infringement by other measures causing the reasonable damage to the infringer sufficient in a particular case for immediate prevention or termination of assault. When socially-dangerous infringement was absent, and the damages were caused due to improper estimation of the injured activity, such actions shall be qualified as imaginary defense.

Considering the corresponding institute within the legal systems of other countries, one may see that the main criteria for determining the limits of justifiable defense is the relevance of actions of the person protecting oneself to the character of the infringement. The laws of the majority of countries contain just a general provision that the claim of self-defense will fail when its use did not match the level of the threat (Czech Republic, Estonia, Finland, Norway, Turkey, Austria, Switzerland, Italy, etc.).

Certain countries set different limits to the application of justifiable defense. For instance, under Australian laws the self-defense will not be justified if it caused death or serious injuries when protecting the property, preventing the infringement or detention of a criminal. French Criminal Code forbids the intentional murder of the aggressor in order to prevent the capital offence or property offence.

In India (Criminal Code of India, 1861) and the USA (Model Criminal Code of the US, 1962) the justifiable defense includes the right of causing death to the aggressor in the number of capital offences. Thereat, in the US certain states determine the peculiarities and limits when applying the corresponding right.

Therefore, the correspondence of the person’s self-defense actions to the infringement nature is generally an evaluative term. Self-defense is admitted by court (jury) depending on specific circumstances of case leading to the exemption from liability of the person protecting oneself or influencing the qualification of his actions and assignment of penalty.

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