The Right to Self-Defence and Protection of the Home: Theory and Law Enforcement

KEY CONCLUSIONS

Every citizen has a right to self-defence, but there should be boundaries

“Every person has the right to defend their rights by all means that are not prohibited by law. The right to self-defence is an unalienable right of people. However, the necessary defence must have boundaries. Rights of other persons cannot be violated,” Aleksandr Kozlov, Advisor to the Commissioner for Human Rights in the Russian Federation.

“Over the past 10 years, we studied the law enforcement practice. This work was meant to increase guarantees for the people. I believe that there the law is fairly definitive. People have the right to defend their homes from both violent and non-violent intrusion. If it entails a threat to the person’s life, any damage to the intruder’s health can be caused. If it was unexpected, the self-defence law is also applicable. There is criminal penalty for causing death or serious injury intentionally during self-defence,” Oleg Zatelepin, Judge of the Supreme Court of the Russian Federation.

“On the one hand, the notion of necessary self-defence implies limits, but life is not that simple. Full decriminalization is not really justified, although some conceptual things must remain. Expanding law enforcement is somewhat justified. But expanding it does not provide for exclusion. If the perpetrator is violent or threatens, the person attacked of threatened can apply self-defence,” Irina Pankina, Deputy, First Deputy Chairman of the Committee on State Building and Legislation, State Duma of the Federal Assembly of the Russian Federation.

“I believe that any person must have the right to self-defence. If I legally own a traumatic gun, I must have the right to use it on the person who is attacking me with a knife. We need to convey it to people,” Michael Mawashi, Musician, Public Figure, Blogger.

PROBLEMS

Ambiguous interpretations and practices

“Ambiguousness of practices results in people fearing criminal prosecution. It reduces the effect of this law,” Aleksandr Kozlov, Advisor to the Commissioner for Human Rights in the Russian Federation.

“The special feature of the necessary self-defence as an institute is that it is shaped by judicial practice. Human rights activists frequently call for increasing the guarantees for those defending their homes. They need to have the right to cause any injury to the intruder. Our legislation has not authorized it yet,” Oleg Zatelepin, Judge of the Supreme Court of the Russian Federation.

“Judicial practice is of definitive importance. It is formed by investigating actual cases,” Vasiliy Pustovalov, Deputy Head of the Main Directorate for Supervision of the Investigation, Inquiry and Operational Investigative Activities, Prosecutor General’s Office of the Russian Federation.

The right to violence vs. presumption of innocence

“The legislator emphasizes that it is murder [when the attacker is killed at the hands of the defender, – Ed.] and not manslaughter. It means that the legislator treats it with caution and responsibility. What is self-defence? The state delegates the citizen one of the features that distinguish it from any other control system. It is violence. Giving a citizen the right to use violence is a serious step for the state as is,” Vasiliy Pustovalov, Deputy Head of the Main Directorate for Supervision of the Investigation, Inquiry and Operational Investigative Activities, Prosecutor General’s Office of the Russian Federation.

“As for homes, the phrase ‘my home is my castle’ is notable, as it creates the presumption of defence for the defender. This is the narrative I see in articles of various types. In fact, a large share of all criminal cases on exceeding the limits of necessary self-defence is a conflict that can be traced to earlier times.  We pay attention to homes only because there is a public demand for it.  As for investigative practices, it makes no difference of where you use self-defence and with which purpose. What matters is that you use any legal means. The institute of self-defence itself is a proof of the profound and professional approaches our legal system uses,” Vasiliy Pustovalov, Deputy Head of the Main Directorate for Supervision of the Investigation, Inquiry and Operational Investigative Activities, Prosecutor General’s Office of the Russian Federation.

SOLUTIONS

An open discussion and a search for consensus between the government and the society

“The legislator has been going back to this matter over and over again. We support specifying the limits of necessary self-defence, when defending one’s home. It is a complicated matter,” Oleg Zatelepin, Judge of the Supreme Court of the Russian Federation.

“Criminal law is the most conservative one in its nature compared to other codes. The wordings we have now are pretty clear. The next step is obviously the law enforcement and the verdicts of the judges based on the plenum explanation,” Vadim Fyodorov, Deputy Minister of Justice of the Russian Federation.

“There are no discussions without an actual problem. Legislators are open to such discussions. The institute of necessary self-defence has been successfully operating for 20 years. We are speaking of doctrines that take time to get elaborated,” Irina Pankina, Deputy, First Deputy Chairman of the Committee on State Building and Legislation, State Duma of the Federal Assembly of the Russian Federation.

Expanding the limits of self-defence for preventing crime

“We believe that we need to defend our lawful citizens and give them the right to self-defence. The right to self-defence has a huge preventive potential, as criminals do not usually expect a response. Knowing that the correct legal norm can make the right to self-defence easier, we believe that the chapter of Criminal Code must be completed. Causing damage to the perpetrator is not a crime, even if was done with the use of weapons,” Michael Gushchin, President, Federation of Practical Shooting of Russia.

“The problem of protecting life and property is brought up at different platforms now. It is probably unlikely that the defender can objectively understand the nature of the threat, because the person is under stress, and this could be subsumed under a state of diminished sanity. But can modern law respond adequately to the legitimacy of defence and attacker assessment? Yes, it can, but perhaps a compromise between society and the state should be sought,” Aleksei Petryanin, Director of the Nizhny Novgorod Branch, St. Petersburg Academy of the Investigative Committee of the Russian Federation.

For more information, visit the Roscongress Foundation’s Information and Analytical System roscongress.org.

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