Let’s Fight Racism Together

19.12.2008

SELF-DEFENSE AND PERSONAL PHYSICAL SAFETY

Filed under: Uncategorized — legalantiracism @ 20:51

Unfortunately, the police sometimes fails to defend every person staying in the territory of Ukraine. Ukrainian law provides wide latitude to defend yourself on your own.

The Constitution of Ukraine declares that «a man, his life, health, respect and dignity, inviolability and safety are considered in Ukraine the highest social value» (art.3 of Constitution), and secures a right of everyone «to protect own life and health of other persons against illegal infringements» (art. 27 of the Constitution). This right is detailed in art. 36 of the Criminal Code of Ukraine, which establishes the concept, essence and qualities of a necessary defense as a non-criminal act.

To perform acts involved in self-defense, it is necessary to be aware of the legal provisions — because you are in legal terrain all the time anyway, and any action of yours even if perceived as right at first glance, may, now or later, be analysed in the light of the law. It is also possible that the exact lawfulness and accuracy of your acts become your last hope to determine the truth. That is why an act within the framework of law is not just an opportunity to defend oneself but also a chance to avoid negative consequences later.

According to p. 1, art. 36 of the Criminal Code of Ukraine «The necessary defense shall mean actions taken to defend the legally protected rights and interests of the defending person or another person, and also public interests and interests of the state, against a socially dangerous trespass, by inflicting such harm upon the trespasser as is necessary and sufficient in a given situation to immediately avert or stop the trespass, provided the limits of the necessary defense are not exceeded.».

Right to necessary defense occurs in the presence of two mandatory conditions:

  • commitment by a person (a group of persons) of a socially dangerous trespass;
  • necessity of its immediate prevention or stop.

Socially dangerous tresspass — are the acts of an individual already inflicting harm or constituting real and direct threat of causing such harm to the rights and interests of a person defending oneself (i.e. yourself), or of other person (who no matter why, does not perform the necessary defense or performs it with an insufficient effect) or of the whole society.

Under legally protected rights and interests, right to life, health, personal and sexual freedom, honour and dignity, inviolability of property and of course of possession in all its forms are understood to be part. As concerns protection of property, not only the attempt of its illegal occupation is meant but also damage, spoiling, destruction.

For necessary defense, it makes no difference whether a socially dangerous trespass is committed intentionally, carelessly or even without a fault. Socially dangerous trespass involves only active measures of a perpetrator — both with use of one’s physical force (infliction of bodily damage, attempt at suffocation), and with use of arms, any improvised means or occasional objects, mechanisms, devices or even animals (e.g. setting a big dog or threat to set it on or to unchain).

Quite often, a socially dangerous trespass is constituted in an attack of a person or group of persons. However, the phrase ‘an attack’ in itself is not exhaustive — in practice it may be an attempt of burglary, violation of dwelling, or assault due to the helpless state of a victim.

Furthermore, to defend rights and interests of a third person, no desire or consent of this person in realizing the need for defense is needed. In a situation where this person prohibits you from intervening, the law is on your side and you may act at your discretion, depending on circumstances.

According to the resolution of the Plenum of the Supreme Court of Ukraine №1 of 26 April 2002 «On Judicial Practice on Cases on Necessary Defense» a state of necessary defense occurs not only at the moment of socially dangerous trespass but also in case of a real threat of causing harm. This means that you need not to wait till a perpetrator, for instance, stabs you — you may begin active self-defense on your own. It is important not to be over-diligent, of course. If, on an unlit alleyway, two persons address you and ask for a cigarette, it is not considered a sufficient threat to merit a response of taking out a knife immediately and prevent a probable attack i.e. a threat of causing damage must be real and imminent. It is significant to consider the number of people, the intent of the aggressor, character of his/her acts, display of arms or other objects he/she might use violently.

The second element is necessity of immediate prevention or stop of a socially dangerous trespass. Self-defense is lawful only when it aims at prevention or stop (restraint) of a trespass presently taking place. This also means that either harm will be inflicted on an aggressor (to avert or stop his trespass) or harm will be caused by an aggressor to somebody’s life, health, property, public or state interests.

This also means that trespass must occur at the given moment and damage may be caused only to avert or stop it.

Necessary defense is brought into action by inflicting harm on an aggressor only — obviously, inflicting harm on a third person (e.g. to someone who is close to an aggressor) to avert the trespass is unlawful.

Defensive acts aim at protection of rights and interests — of your own, of any other person, of the public or the state. However, it is important that for recognition of self-defense, a lawful defense is not expected to have a successful outcome. Thus, if during self-defense you had inflicted harm to a perpetrator but still could not avert or stop his trespass, the self-defense will still be recognized as lawful.

P.2, art. 36 of the Criminal Code of Ukraine: «Every person has a right to necessary defense irrespective of the available opportunity to avoid socially-dangerous infringement or claim for the help of other persons or authorities ».

In connection with applying necessary self-defense, no one (including the law-enforcement agencies) has the right to hold against you the fact that you defended yourself and did not try to solve the problem by avoiding use of force. On the other hand, necessary defense is your right but not an obligation, so refusal to exercise your right implies no responsibility. There is an exception to this rule concerning some categories of workers but foreigners cannot hold these posts and thus it is not applicable to them.

As this is a right, you have no obligation to report personally committed acts of necessary defense to governmental or other institutions or officials. Yet, you could do this (calling police, for instance) with an objective of proper settlement of a probable criminal case that might be initiated in relation to socially dangerous infringement.

If you have caused an attacker serious damage, even if lawfully, and he/she risks serious ill health (e.g. to bleed or being unconscious, freeze to death), it is obligatory to render first aid and call an ambulance. According to Ukrainian legislation, it is prohibited to leave a man in mortal danger in a helpless state, and criminal responsibility is provided for in this act.

P. 3, art. 36 of the Criminal Code of Ukraine states: «The excess of necessary defense shall mean an intended causing of a grievous harm to the trespasser, which is not proportionate to the danger of the trespass or circumstances of the defense. The excess of necessary defense shall entail criminal liability only in cases specifically prescribed in Articles 118 and 124 of this Code.».

Excess of necessary defense — is its clear non-correspondent, non-proportional and inadequate character in relation to the danger of trespass or the magnitude of defense, for example:

§         while defending against trespass of comparably insignificant danger (e.g. grave violation of public peace), a defender intentionally caused serious bodily injury or death to a violator;

§         if a defender is aware of significant disparity of strength/capability in his/her favour as compared to a violator, but intentionally causes to him/her grievous bodily damage or death, that is clearly more damage than was necessary in this situation for prevention or stop of trespass.

Defense cannot exceed the limits of necessity. This case particularly is regulated by articles 118 and 124 of the Criminal Code of Ukraine — intentionally killing or causing grievous bodily damage is a case of exceeding boundaries of necessary defense. However, only exceeding the measures and intentional violent acts are referred here and not necessary defense as such.

To determine the presence or absence of qualities ‘exceeding’ boundaries of necessary defense, a judge must consider not only the proportionality of the means of defense, but also the character of the danger threatening a defender and the circumstances which could have influenced the actual correlation of forces, i.e.: place and time of attack, its suddenness, unpreparedness to repel it, number of attackers and defenders, their physical characteristics (age, sex, medical condition) and other circumstances.

It is important to differentiate necessary defense from imaginary one. The latter implies inflicting of damage under circumstances of no real socially dangerous trespass, i.e. when a person having incorrectly judged the acts of a victim, mistook the existence of such a trespass. In case of imaginary defense, the criminal responsibility for inflicted harm is excluded only under circumstances when the situation at hand implied presumption of a real trespass and there was no way for a person to realize the falsity of his/her presumption. The question: were there any circumstances for a person to infer mistakenly the actuality of a socially dangerous trespass is settled after consideration of the concrete circumstances of a case.

If a person in a situation at hand did not and could not realize the falsity of his/her own notion of the actuality of a socially dangerous trespass, and thus exceeded limits of necessarily applicable defense then his/her acts are classified as exceeding of measures of necessary defense. However, if a person did not realize but could have realized the absence of actual trespass, in this case his/her acts are classified as reckless cause of harm.

Issue of compensation for material damage caused by exceeding of measures of necessary defense should be addressed in accordance to the Civil Code of Ukraine. Considering concrete circumstances of a case, degree of culpability of a defender and of an attacker, the judge can rule for mitigation of material damages. Harm caused in condition of necessary defense without exceeding measures of the latter is compensable.

Citizens not belonging to the law enforcement agencies are allowed to use tear gas sprays, gas guns and rubber bullet weapons for self-defense. However, not everything in this list is available for the foreigners staying in Ukraine, and does not need the permission.

The easiest and the most convenient means of individual protection, due to a small size, is tear gas spray. If the attacker is affected, he will be neutralized for a few minutes. That will be enough to run up to the nearest crowded place and to call the police. An important advantage of gas sprays is their small size, allowing handy carrying, and foremost their invisibility.

Please remember that venting gas can have a big disadvantage as they are practically useless and even dangerous in opposing wind. Besides, they can only be used at a maximum distance of 2 m. If the distance is bigger, an attacker will feel almost nothing, and will have an additional motivation for dynamic actions. Furthermore, gas sprays shall not be used in a closed room in order to avoid neutralizing all the persons present, including you. Does not require a permit.

Another means of protection with analogous principle of operation is a gas gun. Effectiveness of this means is almost the same as of the tear gas spray. Gas gun is a ‘special means’, consequently a permit shall be obtained to buy it.

Air-guns in Ukraine can not be used as a means of self-defense, it is designated for sports and training shooting. But in a critical situation barely anyone will remember it. For purchase and carrying of air-guns with caliber of 4,5 mm and bullet speed up to 100 m/s, permit is not required. If this rule is not followed, such a weapon is equated to a hunting one. To purchase a hunting weapon for self-defense, a permit shall be obtained.

Non-weapons are items of service-utility, industrial, sports and other designation, which are similar to the cold steel arms in terms of appearance or design, although do not have a whole complex of essential features peculiar to cold steel arms. Classification of confiscated item is done by an expert according to such criteria as ‘designation to hit the aim’ and ‘ability to hit multilaterally’. Experts call to notice not only the blade fixation, but also the convenience of holding it in hand and safety of certain stabs as to strength and direction. Knives are usually divided into four categories: service-utility, touristic, hunting and the very same cold steel arms. Knives from the last category are always enumerated, and they may be bought only by hunters following production of a special permit, and moreover a mark about this purchase is made in hunting permit. In hunting shops an expert opinion is attached to every knife concluding whether a knife belongs to the cold steel arms or not. If there is no such conclusion, it is better not to buy such an item to exclude the possibility of problems with law enforcement agencies. It is recommended not to buy knives outside these shops, in order to avoid the same problems.

We do not recommend counting a lot on piercing, cutting and any other objects that may be used for self-defense, because handling them requires substantial skills. And in case of unskilled usage you can harm yourself.

The most effective means of defense among those authorized in Ukraine is rubber bullet gun. But only certain categories of persons can buy it, namely employees of the Ministry of Interior, courts, fishery supervision, prosecutor’s office, customs office, and in particular cases also their family members. Besides, in case of acute need, journalists as well, although they need to substantiate that they indeed need it. A permission is needed to make a purchase.

It is always necessary to remember that the best way to win the fights is by avoiding it. Even the most effective defensive means do not secure a successful outcome in a critical moment. Besides, any equipment can get out of order. Furthermore, it is necessary to learn how to use anything before starting to use it. And the most important: you should always be ready to repel an attack. Say, in case of a tear gas spray, it is worth learning how to get it in your hand quickly and to direct it effectively at a hooligan.

Ukrainian legislation sets forth that only Ukrainian nationals can obtain permit for purchase of hunting gun, rubber bullet gun and air-gun.

Thus, foreigners may use tear gas sprays, a knife (not belonging to cold steel arms) and improvised means for self-defense.

Means of protection Conditions for purchase
Gas tear spray Sold to all emancipated citizens
Gas gun Production of permit for purchase of special means
Airguns Sold to all emancipated citizens
Hunting knife Sold to all emancipated citizens
Rubber bullet weapon Sold to employees of law enforcement agencies, their family members, and journalists upon production of respective permit

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