Socio-legal Nature of Lawful Infliction of Harm by Police Officers in

Conditions of Justifiable Defense

Igor Evgenievich Terenkov

Moscow Regional Branch of the Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya.

Kikotya, Moscow, Russia

Keywords: Criminal law, defense, police officer, lawful harm, use of weapons.

Abstract: The article discusses issues devoted to particular problems of the circumstances excluding the criminality of

a deed. The article analyzes the opinions of scientists about the essence of lawful harm. The obtained results

are applied to the activities of police officers in conditions of justifiable defense. Attention is drawn to the

contradictions between the norms on the use of weapons provided in the Federal Law “On Police” and the

Criminal Code of the Russian Federation. The purpose of the article is to determine the legal and social nature

of lawful harm caused by police officers. In order to achieve this goal, the following tasks were solved: an

analysis of scientists’ opinions on the considered issue was carried out; the functions of criminal legal norms

regulating the infliction of lawful harm were revealed; the importance of legally significant acts provided by

the norms of criminal legislation was determined. The methodological basis of the research is represented by

both general scientific and private scientific research methods. The most commonly used method was analysis.

The result of the study is the conclusion that if a police officer causes harm to law-protected interests, in the

presence of circumstances excluding the criminality of a deed, then such actions are lawful in form and

socially useful in content. The obtained data can be used both for further study of the institution of lawful

harm and for training police officers.

1 INTRODUCTION

The fulfillment of the tasks, assigned to police

officers, involves the use of active measures to

combat crime, including the use of firearms (Gabor,

2016). Cases, when police officers have the right to

use firearms, are regulated in Art. 23 of the Federal

Law of the Russian Federation “On Police”.

However, Part 9 of Art. 18 of this law contains

provisions on the exclusion of liability of police

officers for harm caused to persons and organizations

through using firearms, if it was carried out on the

grounds and in the manner prescribed by law. One of

these laws is the Criminal Code of the Russian

Federation (hereinafter referred to as “CC RF”),

which provides the right of citizens to the justifiable

defense in Art. 37 of CC RF.

The fulfillment by police officers of their

professional duties involves the suppression of

various conflict situations and socially dangerous

encroachments, including those ones committed

against them (Shkabin, 2020). The life and health of

citizens and police officers often depends on the

speed and decisiveness of their actions. At the same

time, in the theory of criminal law there is no

unequivocal answer about the ratio of the norms that

determine the institute of justifiable defense and the

norms of the Federal Law of the Russian Federation

“On Police” regulating the use of firearms in order to

protect themselves or other citizens from socially

dangerous encroachments.

The analysis of law enforcement practice also

shows that until now a unified approach has not been

developed regarding the priority of the norms of

criminal or administrative law in the legal assessment

of the actions of police officers who used firearms in

a state of justifiable defense. These circumstances

cause significant difficulties and lead to errors in the

qualification of actions of police officers, who used

firearms. These facts determine the need for theory

and practice in conducting scientific research aimed

at clarifying the social and legal nature of the

lawfulness of harm caused by police officers. The

study of the criminal-legal aspects of the use of

firearms by police officers is connected with the fact

that in such situations, social relations are almost

always violated, which are protected by criminal law.

At the same time, the preliminary investigation

Terenkov, I.

Socio-legal Nature of Lawful Inﬂiction of Harm by Police Ofﬁcers in Conditions of Justiﬁable Defense.

DOI: 10.5220/0010635600003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

291-293

ISBN: 978-989-758-532-6; ISSN: 2184-9854

291

bodies are obliged to make a procedural decision on

the unlawfulness (criminality) or legality of such

actions.

2 MATERIALS AND METHODS

In preparing the article, the following materials were

used: Criminal Code of the Russian Federation;

Federal Law “On Police”; forensic practice; Russian

and foreign scientific publications devoted to the

considered problem. The methodological basis of the

research is represented by the universal dialectical

method of scientific knowledge. Both general

scientific and private scientific research methods

were applied.

3 RESULTS AND DISCUSSION

Justifiable defense is one of the types of

circumstances excluding the criminality of a deed

provided by the Chapter 8 of the Criminal Code of the

Russian Federation, adopted in 1996. The acts

stipulated in this chapter were enshrined precisely in

the criminal legislation due to the fact that they are

outwardly similar to crimes (Piontkovsky, 1961).

Moreover, S.F. Milyukov notes that “a deed

committed in a state of justifiable defense or extreme

necessity, as falling under the characteristics of the

Special Part of CC RF, has a coincidence that is not

formal, but active, real” (Milyukov, 1998).

Accordingly, the norms of criminal legislation,

providing for specific circumstances excluding the

criminality of a deed, as well as the conditions and

limits of their legality, are designed to determine the

boundaries of lawful infliction of harm to protected

criminal relations. This conclusion is based on the

provisions of the current criminal legislation, namely

the Chapter 8 of CC RF, in the title of which it is

indicated precisely the exclusion of the criminality of

a deed. In addition, the norms included in this chapter,

for the most part, begin with the words – “It shall not

be deemed a crime when harm is inflicted …”.

In the theory of criminal law, a point of view is

expressed and reasoned, according to it if the

behavior of a person contains signs of any of the types

of lawful infliction of harm established by law, then

this circumstance a priori excludes their criminal

wrongfulness, social danger, and, as a consequence,

the presence of signs specific corpus delicti

(Dmitrenko, Chin, 2020). Criminal unlawfulness is

excluded due to the fact that there are some norms in

the criminal law that provide for these deeds as

lawful, and there is no public danger due to the

presence of a socially useful purpose for the persons

who commit them (Steinhoff, 2016). The influence of

a certain external factor is also important, which is

virtually impossible to overcome in order to achieve

a socially approved goal, without harming the

benefits of law.

Thus, following the generally accepted

interpretation of the institution of circumstances

excluding the criminality of a deed, a number of

conclusions can be drawn that are necessary to

understand the functions of the norms that regulate

them.

Firstly, they resemble crimes outwardly. It is

expressed in the fact that a number of objective and

subjective signs of a socially useful deed are identical

to the features provided by specific articles of the

Special Part of the Criminal Code of the Russian

Federation.

Secondly, the social basis for excluding liability

for caused harm is the absence of public danger in

these acts.

Thirdly, the legal basis for excluding the criminal

unlawfulness of these deeds is their regulation by the

norms of criminal law. As indicated in a number of

sources, they are criminally lawful (Dmitrenko,

2015).

Accordingly, despite the outward similarity with

a crime, the presence in the action or omission of a

person of signs of one of the types of lawful infliction

established by law, characterizes it as a lawful act

provided by the norms of criminal law. For this

reason, we believe that the terms “circumstances

excluding the criminality of a deed”, “criminally

lawful deeds” and “lawful deeds provided by the

norms of criminal law” should be considered as

synonyms.

No less important are the issues concerning the

normative regulation of the circumstances excluding

the criminality of a deed, namely: whether they are

provided only by the norms of criminal law or can

they be regulated by the norms of other branches of

law; can the norms of other branches of law restrict,

expand, clarify or cancel the action of criminal law,

providing for the considering circumstances. The

need to resolve them is due to the fact that law

enforcement officers (judges, interrogators,

investigators), establishing such a legal matter as the

presence in an act of a person of signs of circumstance

excluding the criminality of a deed, must give a legal

assessment to this fact. This assessment is expressed

in the application of the norms of criminal law

regulating lawful deeds. For this purpose, law

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enforcement officers must study the features of the

committed act, compare them with the signs provided

in the norms regulating a specific circumstance

excluding the criminality of a deed (justifiable

defense, extreme necessity, reasonable risk, etc.). At

the same time, it should be borne in mind that each

type of criminal lawful act has obligatory features that

characterize it as such and make it possible to delimit

them from each other, as well as criminal and legally

significant deeds provided by criminal law norms.

It should be clarified that, speaking about legally

significant deeds provided by the norms of criminal

law, we are based on the opinion of V.N.

Kudryavtsev, who drew attention to the fact that only

one that complies with legislative provisions can be

recognized as a deed (legal act) of lawful

significance. They can be both requirements and

prohibitions or permissions. If a person is not aware

of the social significance of his behavior or does not

direct his will, then, according to the scientist, such

behavior does not meet the necessary criteria. It

means that such a deed cannot be recognized as legal,

it can only be characterized as legally significant

(Kudryavtsev, 1982). For example, causing harm to

law-protected interests by a person who is in a state

of insanity (Clause “a”, Part 2 of Article 97 of CC RF)

is regulated by the norms of criminal law and entails

criminal consequences. However, it is not performed

under the actual control of the consciousness and will

of the person. For this reason, it should be recognized

as criminally significant. Such acts are not criminally

lawful.

4 CONCLUSIONS

Thus, we can formulate the conclusion of the

analysis. It consists in the fact that in cases where it is

established that the act committed by the police

officer is one of the circumstances excluding the

criminality of a deed provided in Art. 37-43 of CC

RF, then it cannot be recognized as criminal, despite

harm caused to an object protected by criminal law.

In other words, such actions are lawful in form and

socially useful in content. For example, if a police

officer acts in conditions of justifiable defense, the

harm caused to him is criminally legitimate, and the

person himself cannot be prosecuted.

This conclusion is confirmed by the provisions of

Part 9 of Art. 18 of the Federal Law from February

07, 2011 N 3-FZ (edited from February 24, 2021) “On

Police”, determining that “A police officer shall not

be liable for any harm caused to persons and

organizations through the use of physical force,

special means and firearms, should such use of

physical force, special equipment and firearms, be

conducted on the grounds and in accordance with the

procedure established by federal constitutional laws,

this Federal Law and other federal laws.”

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criminality of a deed, circumstances excluding criminal

liability and circumstances in the presence of which a

person can be exempted from criminal liability and

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Dmitrenko, A. P., Chin, S. Ch., 2020. The history of the

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