In this case, there is a so-called “late” defense.

Necessary defense under the Criminal Code “is recognized as acts committed to protect the interests or rights of the protected person or another person, the interests of society or the state from socially dangerous encroachment by harming the offender, if such actions were due to immediate deterrence or cessation of encroachment “.

The essence of necessary defense, based on its legislative definition, is the lawful infliction of harm to a person who commits a socially dangerous encroachment, a person who exercises his, guaranteed by the Constitution of Ukraine, the right to protection of protected interests from socially dangerous encroachments. However, this does not mean that the damage caused to the person who committed the encroachment can be any, that the law seems to outlaw this person, allowing him to cause any harm. The interests of the person who committed the encroachment are also protected by law: the damage caused should not exceed certain limits, should not turn into an act of revenge, arbitrary massacre of such a person. In other words, the damage caused should not exceed the limits of necessary defense.

The theory of criminal law has developed criteria (conditions, features) of the legitimacy of the necessary defense, which most scientists are divided into two groups:

conditions of legality of necessary defense which characterize socially dangerous encroachment; conditions of legality of necessary defense, which characterize protective actions, ie determine the limits of protective actions so that they do not exceed the limits of necessity, and the damage caused to the person committing the encroachment does not exceed that required.

The conditions of the legitimacy of the necessary defense, which characterize the socially dangerous encroachment, in the literature, mostly include:

a) the presence of socially dangerous encroachment; b) its reality (reality). Sometimes the reality and reality of socially dangerous encroachment are considered as independent conditions of legitimacy of necessary defense, or as an independent condition of legitimacy is called social danger of encroachment, ie the condition that encroachment was objectively socially dangerous.

Indeed, protection is allowed against encroachment, which objectively must be socially dangerous, available, real and real, but all these conditions can be distinguished as independent, and can be combined into one – the presence of socially dangerous encroachment.

Conditions for the legitimacy of the necessary defense, relating to protection, ie characterizing protective actions are:

a) the ability to protect only the values ​​directly named in the Criminal Code: the interests and rights of the protected person, others, the interests of society or the state; b) the damage should be inflicted only on the person committing the encroachment and not on any other person; c) protection should not exceed the limits of necessary defense of necessity or entails liability on general grounds.

The nature of the actions of the protected person. The behavior of the defender, with the necessary defense can only be active, ie can be expressed only in action, which is directly indicated in Part I of Art. 36 of the Criminal Code. Such actions can be both physical efforts of the protected person (for example, striking by a fist), and use of various tools, subjects, mechanisms, devices, etc., and not only those which are picked up, found or captured on a place of protection, but also those, which were with the person being defended, or even specially prepared by him for protection (for example, the use of a folding knife or firearm, taken in advance for defense, etc.).

These actions must fall under the signs of an act under the Criminal Code, ie coincide in external, factual features with the objective side of a crime. These are actions that fall under the signs of murder, infliction of bodily injuries of varying severity, blows and beatings, and so on.

Timeliness of defense. The actions of the 123helpme.me protected person are recognized as lawful only if they were committed during the entire period of the encroachment. In other words, protection is considered justified only during the existence of the state of necessary defense, which is determined by the duration of socially dangerous encroachment, which requires its immediate prevention or cessation. Therefore, causing harm before the occurrence of such a state is recognized as the so-called “premature” defense, for which liability arises on general grounds.

At the same time, a person who defends himself under the influence of an encroachment often continues his defense even when the encroachment has already ended or ceased. In this case, there is a so-called “late” defense. The assessment of the harm caused to the assailant in a state of “late” defense depends on whether or not the person being defended was aware.

The concept of self-defense

In accordance with Part 1 of Art. 36 of the Criminal Code, acts committed to protect the rights and interests of the protected person or another person, as well as public interests and the interests of the state from socially dangerous encroachment by causing harm to the offender, necessary and sufficient in this conditions for immediate deterrence or cessation of encroachment, if it was not allowed to exceed the limits of self-defense.

It follows that the necessary defense – is the legitimate protection of law enforcement interests of a person, society or state from socially dangerous encroachment, caused by the need to immediately prevent or stop it by causing harm to the offender, corresponding to the danger of encroachment and protection.

The right to self-defense is a natural and inalienable, absolute human right. This means that all other persons cannot prevent a citizen from legally exercising the right to self-defense. The right to self-defense, further, is independent, and not additional (subsidiary) to the activities of state bodies and officials specifically authorized to protect law and order. In other words, every citizen has the right to the necessary defense, regardless of the possibility to seek help from the authorities or officials to prevent or stop the encroachment.

The right to self-defense is also not related to the person’s ability to seek help from other citizens. In part 2 of Art. 36 of the Criminal Code states that every person has the right to self-defense, regardless of the possibility to avoid socially dangerous encroachment or to seek help from other persons or authorities.

Enshrined in Art. 36 of the Criminal Code, the right of every person to self-defense is an important guarantee of the implementation of the constitutional provision that everyone has the right to protect their lives and health, life and health of others from unlawful encroachments (Part C of Article 27 of the Constitution of Ukraine).

Since the exercise of necessary defense is a subjective right and not a duty of the citizen, the refusal of the latter to exercise his right does not entail any liability. In addition, a citizen is not obliged to notify state or other bodies or officials of an act of self-defense committed by him, although he has the right to make such a notice in the interests of a proper criminal case initiated in connection with socially dangerous encroachment.

The right to self-defense is possible only if there are appropriate grounds. According to Part 1 of Art. 36 of the Criminal Code, it is the commission of a socially dangerous encroachment, which causes the protected person the need to immediately prevent or stop it by causing harm to the offender.

In other words, the basis of the necessary defense consists of two elements, namely:

socially dangerous encroachment, the need for its immediate prevention or cessation.

The first element means that the encroachment must be socially dangerous. An act that is not socially dangerous, under no circumstances can give rise to the right to self-defense (for example, it is impossible against lawful acts committed in a state of self-defense, extreme necessity, in apprehending a criminal, performing military or military duty, as well as in other circumstances that exclude the criminality of the act).

Under socially dangerous encroachment should be understood as encroachment by man, as directly indicated by Part 1 of Art. 36 of the Criminal Code. To encroach means to try to do harm. Such an attempt is socially dangerous if its object is the legally protected rights and interests of the protected person or another person, public interests or the interests of the state.

Such interests include:

life, health, personal and sexual freedom, honor and dignity of the person, property, inviolability of the home, other rights and legitimate interests of the protected person or another person; illegal encroachments (part C of Article 27 of the Constitution of Ukraine).

In this case, not only criminal encroachment is recognized as socially dangerous (although the crime is a typical manifestation of socially dangerous encroachment), but also any other socially dangerous encroachment that is not a crime (for example, encroachment of a person under the age of the onset of criminal liability, insanity or innocence, etc.).

It is sometimes believed that socially dangerous encroachment can only be expressed in an attack. However, Art. 36 of the Criminal Code does not contain such a restriction. Therefore, the encroachment may consist in actions that do not have the nature of an attack (for example, attempted theft). The attack can be carried out by a person using physical force (for example, an attempt to strangle the victim) or using weapons, other tools, objects, mechanisms, animals, etc. Thus, under the socially dangerous encroachment provided for in Part] of Art. 36, it is necessary to understand any actions of the person directly directed on harm to law-enforcement interests of the person who staggers, or other person, public interests or interests of the state.

An essential characteristic of socially dangerous encroachment is its presence, ie the duration of time during which only the necessary defense is possible. Socially dangerous encroachment has its beginnings and endings. Explaining this provision, the Plenum of the Supreme Court of Ukraine in the decision of June 28, 1991 № 4 “On the practice of application by courts of legislation providing the right to necessary defense against socially dangerous encroachments” noted that the state of necessary defense arises not only at the moment of public dangerous encroachment, but also in the presence of a real threat of harm.