To prison for self-defense: life or freedom?

2024 Author: Seth Attwood | [email protected]. Last modified: 2023-12-16 15:55

The recent history of the Russian Federation is full of cases when a person who was attacked ended up in the dock and received a longer sentence than the offender who attacked him. It makes no sense to list them all, the Internet is replete with incidents of this type, for example:

On the evening of April 7, 2012, in the city of Bogoroditsk, Tula Region, four armed robbers broke into the house where entrepreneur Gegham Sargsyan, his wife, adult daughter and four young children, the youngest of whom were about a year old, live. The criminals beat the family members, but the man was able to grab a kitchen knife and stab the three attackers, from which they died. The fourth robber disappeared. The owner of the house was hospitalized, the rest of the family received medical assistance.

The head of the Investigative Committee of the Tula Region, Sergeeva, announced the possible excess of the necessary self-defense by the businessman. According to her, this is indicated by the nature of the injuries from which the robbers died.

Entrepreneur Gegham Sargsyan and his family

By the way, the opinion of the Investigative Committee of the Tula Region changed to the diametrically opposite after the then Governor of the Tula Region, Gruzdev V. S. We won't give it!"

In this case, fortunately, everything ended well. But there is a huge number of cases of exceeding self-defense, when the victims of the attack were at best charged with Article 108 of the Criminal Code "Murder in excess of the limits of necessary defense", and at worst - the previously mentioned article 111 of the Criminal Code "Intentional infliction of serious harm to health, dangerous to human life … entailed death of the victim by negligence), or Article 105 “Murder”.

A 39-year-old resident of Nakhodka, Galina Katorova, who stabbed her husband, who was beating and strangling her, was arrested in connection with a murder case (part 1 of article 105 of the Criminal Code). Later, the charge was re-qualified for causing grievous bodily harm that led to death (part 4 of article 111 of the Criminal Code). The Nakhodka City Court sentenced her to three years in prison, but later the Primorsky Regional Court overturned this decision and fully acquitted Katorova.

Galina Katorova with her daughter

The question is, how long will an innocent person have to serve in prison before he can get an acquittal?

Laws and law enforcement practice

Russian law quite reasonably describes the permissible self-defense in Article 37. Necessary defense of the Criminal Code of the Russian Federation:

It would seem that everything is clear, if there is a direct threat to life, then there can be no restrictions on self-defense in principle, even if the attacker was stabbed 100 times or riddled with Saiga (Article 1).

Clause 2.1 specifies the limitations of clause 2, if the attack happened suddenly, then there can be no excess either.

And finally, paragraph 3 of this article directly says that the ability to escape or call the police is not a reason for denying the right to self-defense. In other words, if someone is breaking into your house, it is not necessary to barricade and wait for the police to arrive and you can solve the issue yourself.

It would seem that with such a law, as well as with honest, competent and incorruptible judges and police officers, there should be no problems with self-defense. But the law enforcement practice completely refutes this statement. Apparently, the task of imprisoning the defender is almost a matter of honor for law enforcement and judicial authorities.

Yulia Lopatina was accused of murder committed in excess of the limits of necessary defense. According to the verdict passed by the Shpakovsky court of the Stavropol Territory in September 2018, Lopatina was in the apartment with her friend S. D. V., who was intoxicated. The woman announced to him her desire to leave. On this basis, a quarrel arose, the man began to beat her with his palms in the face, tried to strangle her, dragged her legs across the floor, twisted a finger on his hand, tilted her into intercourse and threatened to kill her with a knife brought from the kitchen. Fearing for her life, Yulia Lopatina picked up a knife that had fallen from the floor and hit the man with it several times in the chest and abdomen. He passed away. Yulia Lopatina was sentenced to 1 year and 9 months of restriction of freedom. The verdict specifies that Lopatina exceeded the limits of necessary defense, since "she is a candidate for master of sports in judo, it would be enough to apply the technique of self-defense."

Full text of judgment No. 1-124 / 2018 1-431 / 2017 of September 19, 2018 in case No. 1-124 / 2018.

But what about clause 3 of Art. 37 of the Criminal Code of the Russian Federation: "The provisions of this article equally apply to all persons, regardless of their professional or other special training …"?

Or take, for example, the tragically ended case when a GRU officer Nikita Belyankin was stabbed to death during a fight in the Moscow region. Based on the decision of the Shpakovsky court of the Stavropol Territory, if he used a knife or a pistol, he would definitely get an article for exceeding self-defense, he “worked in the GRU”, should he handle this? Perhaps, if Nikita Belyankin was sure that in case of self-defense he would not go to prison for exceeding, he would have acted more harshly and decisively, would have used improvised objects or weapons than he could have saved his life. This is a clear example of the enormous harm that the criminalization of legitimate self-defense inflicts.

Murdered GRU officer Nikita Belyankin

Since, despite the quite adequate provisions of the Criminal Code of the Russian Federation in terms of self-defense, law enforcement practice clearly shows a one-sided bias in decision-making in self-defense cases, in 2012 the Plenum of the Supreme Court provided explanations that are binding on lower courts. The full text can (and is recommended) read here.

Here are some interesting excerpts:

An immediate threat of the use of violence endangering the life of a defender or another person may be expressed, in particular, in statements about the intention to immediately inflict death or injury to the defender or another person, dangerous to life, demonstration of weapons or objects used as weapons by the attackers, if given the specific situation, there were reasons to fear that this threat would be realized.

When defending against a socially dangerous encroachment involving violence dangerous to the life of a defender or another person, or with an imminent threat of the use of such violence, the defender has the right to inflict any harm in nature and volume on the attacking person.

In the event of an encroachment by several persons, the defender has the right to apply to any of the encroaching persons such protection measures that are determined by the nature and danger of the actions of the entire group.

When clarifying the question whether the attacker's actions were unexpected for the defender, as a result of which the defender could not objectively assess the degree and nature of the danger of the attack, one should take into account the time, place, situation and method of encroachment, for example, at night with penetration into the dwelling.

The state of necessary defense can take place, including in cases when:

- the defense followed immediately after the act of the completed encroachment, but based on the circumstances, the moment of its end was not clear to the defender and the person mistakenly believed that the encroachment was continuing;

- the socially dangerous encroachment did not stop, but, obviously for the defending person, it was only stopped by the encroaching person in order to create the most favorable environment for the continuation of the encroachment or for other reasons.

- the transfer of weapons or other items used as weapons in an encroachment from an encroaching person to a defender by itself cannot indicate the end of the encroachment, if, taking into account the intensity of the attack, the number of encroached persons, their age, sex, physical development and other circumstances there remained a real threat of the continuation of such an encroachment.

The courts should bear in mind that the defender, due to the emotional excitement caused by the encroachment, cannot always correctly assess the nature and danger of the encroachment and, as a consequence, choose a proportionate method and means of protection.

The full text, like all legal documents, is much larger and reads quite boringly, but nevertheless it quite understandably explains the permissible limits for self-defense in the Russian Federation and is worth reading it carefully. Based on the explanations of the plenum of the Supreme Court of the Russian Federation, many cases, which are reported in the media, should not exist in principle. Nevertheless, their appearance suggests that the explanations of the Plenum of the Supreme Court, apparently, were either not studied by the majority of judges or were ignored.

Civil initiatives were put forward, for example, such as "My home is my fortress", the adoption of which would allow, in principle, to exclude criminal liability for self-defense on their territory, including places of temporary residence. For criminals, such a situation would create huge problems, with a high probability, the number of robberies would significantly decrease, and those that were carried out would more often end tragically for the criminals themselves. But despite the fact that the initiative collected a fairly large number of votes, the State Duma of the Russian Federation rejected this initiative at the initial stage.

And how are they?

Self-defense problems exist not only in Russia, but also in many other countries. The disclosure of this topic may take more than one article. Roughly, with exceptions, one can say that in many European countries, citizens are legally doomed to be "terpily", relying only on law enforcement agencies. If the law enforcement system fails, then it is recommended to patiently endure beatings, rape, robbery and mutilation. The same situation exists in Asian countries.

In terms of self-defense, the most loyal to citizens legislation exists in the United States, for example, the law "Stand your ground" - adopted with some variations in 27 states, means that you have the right to defend yourself by all available means if you think that your life danger threatens. Even if you are attacked by a policeman or a military man, you have the right to shoot to kill and you are not in danger for it.

At the entrance to Idaho:

WELCOME TO IDAHO STATE! TERRORISTS AND CRIMINALS, ATTENTION!

More than 170 thousand residents of the state have a permit for the hidden carrying of weapons, and about 60% of the rest simply did not bother with the acquisition of a license, since its presence is not required. Bear in mind that a significant portion of the state's population is armed and ready to protect themselves and others from criminal activity.

YOU HAVE BEEN WARNED!

However, for your convenience, the states of California, New York and Illinois have disarmed their citizens."

The Governor of Missouri has signed a decree according to which residents of the state have the right to open fire to kill a criminal who illegally entered their home, car, tent or other dwelling. The law no longer requires a homeowner to first use the retreat option, and guarantees protection from prosecution even if the retreat option was available. In addition, Missouri residents no longer need to obtain prior permission from the local sheriff to purchase handguns. In fact, this is a realized Russian initiative “My home is my fortress”.

You can also recall the state of Vermont, which does not need any special permits for firearms and their carrying (hidden or open) and which, at the same time, is traditionally among the top three safest states in the United States. It is the state with one of the lowest per capita homicide, robbery, assault and rape rates.

Vermont spokesman Fred Maslak proposed registering those who do not own weapons and oblige them to pay $ 500 in state tax. Thus, Vermont imposes a tax on a special kind of luxury - the right to leave your safety on the shoulders of others. The logic of the bill is very simple: people without weapons require more protection from the security forces, and accordingly, they must pay a higher tax for this protection. The bill was not passed, but its very appearance says a lot about the mentality of the residents of this state.

However, you should not make the United States a “promised land” in terms of self-defense, a lot depends on the state legislation. In the state of Minnesota, 65-year-old Byron Smith was sentenced to life in prison without the right to pardon, who in 2012 on Thanksgiving shot two teenagers who climbed into his house. The pensioner was robbed six times, after which he ambushed and shot dead teenagers aged 17 and 18 who had climbed into the house.

Byron Smith

Unfortunately, this case is far from the only one. According to the decisions of the judges in this and similar cases, the defender provoked the criminals, which in terms of penetration into the home is in itself absurd. They deliberately entered the house, as they had done before, and would definitely continue to do so later. If they were caught by the police after or during the commission of a crime, then they would have to receive a standard sentence for theft or robbery (after serving which, most likely, they would return to their previous occupation), but if they have already encountered the owners of the house, then the right to self-defense in this case must be unconditional. Impunity breeds lawlessness, which ultimately translates into savage crimes. Suffice it to recall the case of the "Trans-Baikal geeks", which was mentioned in the article Death penalty 2019. Is it time? Imagine for a second that the owner of the house shot or stabbed the "Trans-Baikal geeks" - four teenagers of 14-15 years old, how many cries of overly liberal citizens would utter about this, how they killed the children, and how many years they would give the defender. But there was no self-defense, and as a result, the owner of the house was dead, and his wife was beaten and raped.

Better to be judged by twelve than carried by six

It is this phrase that can now be guided by those who are subjected to criminal encroachments. In the case of self-defense, it is better to expose yourself to the risk of imprisonment than to become a client of funeral agencies. A living person can seek justice, write to the president and in the media, hire a lawyer and go to the Supreme Court, the deceased has only one road. Don't rely on the mercy of criminals. The statistics of murders, rapes and grievous bodily harm, which the Ministry of Internal Affairs does not advertise, suggests that it is not often possible to count on a successful outcome. The rule, the more defenseless the victim, the more cruel the offender behaves, almost always works.

At the same time, the decriminalization of self-defense is extremely important, even much more important than the legalization of short-barreled firearms. At the same time, the legalization of short-barreled firearms is directly dependent on the decriminalization of self-defense, since the thesis put forward by opponents of the legalization of pistols about its frequent use for criminal purposes is largely based on the statistics of use qualified as illegal, precisely due to exceeding the limits of self-defense.

Of all the variety of possible forms of self-defense, in which the victim turns into the accused, the greatest public resonance is caused by self-defense when entering a home and self-defense when attempting to rape.

Taking this into account and the above materials in the article, we can suggest several directions of movement to decriminalize self-defense:

1. With regard to home penetration, the most important mechanism in decriminalizing self-defense is the adoption of amendments to the law in accordance with the principle “My home is my fortress”. Quite recently, the leader of the Liberal Democratic Party of Russia Vladimir Zhirinovsky came up with this initiative, but time will tell to what extent he and his party are ready to bring this matter to the end, or everything will be limited to populist statements.

2. With regard to self-defense in an attempted rape, in my opinion, these actions clearly fall under the first part of Article 37 for the reason that unprotected intercourse can lead to infection with HIV, hepatitis or other sexually transmitted diseases, i.e. … actually causing grievous bodily harm. Since the perpetrator does not present contraceptives and a health certificate, and the incidence of these diseases is very high, the victim has the right to consider the risk of infection as real and act based on the expected consequences of infection. And it would be great if the Supreme Court of the Russian Federation issued its clarifications on this issue and brought them to the courts of first instance.

3. It is necessary to completely abolish responsibility for exceeding self-defense in case of any violent actions on the part of the attacker. The reason is very simple. At the moment of the attack, the victim cannot estimate how far the attacker's actions will go. The Internet is full of videos of how a person is killed with one blow. Proceeding from this, as in paragraph 2, the violent attack itself is an exhaustive basis for the implementation in the Russian Federation of the principle “to stand our ground”. The main criterion here is confirmation that the attack was indeed the first to be committed by the perpetrator.

4. An important factor may be a ban on restricting freedom for the period of investigation in any cases of abuse of self-defense, including during the period of appeal in higher courts. This will allow the accused of exceeding self-defense to organize his defense more effectively and not sit for 2-3 years in prison before being acquitted in the Supreme Court of the Russian Federation.

5. Finally, it is necessary to provide developed legal support in self-defense cases. In this sense, social movements for the legalization of short-barreled firearms should initially focus on this issue, since the decriminalization of self-defense, as mentioned earlier, is the most important stage in the legalization of weapons. A good solution can be insurance or something like a "subscription", when a person pays a small amount every month, but in case of falling under the excess of self-defense, he receives free legal support. At a minimum, it is necessary to create a register of lawyers specializing specifically in cases of abuse of self-defense.