Self-defense or exceeding the limits of necessary defense: what the law says and how to act correctly
The right to self-defense is one of the basic principles of Ukrainian law. It is directly enshrined in Article 27 of the Constitution of Ukraine, which guarantees everyone the right to defend their life and health and the lives of others from unlawful encroachments. However, in practice, the question often arises: where is the line …
The right to self-defense is one of the basic principles of Ukrainian law. It is directly enshrined in Article 27 of the Constitution of Ukraine, which guarantees everyone the right to defend their life and health and the lives of others from unlawful encroachments. However, in practice, the question often arises: where is the line between legitimate necessary defense and exceeding it?
According to Article 36 of the Criminal Code of Ukraine, necessary defense is recognized as actions aimed at the immediate cessation of a socially dangerous attack. This refers not only to physical assault — it can be any real action that poses a threat to life, health, honor, property, or the inviolability of the home. The Supreme Court emphasizes in its practice that the main question is whether there was a real attack, not whether the person could have fled or avoided the conflict.
It is important that the law does not require a person to retreat. Part 2 of Article 36 of the Criminal Code of Ukraine explicitly provides for the right to defend oneself regardless of the possibility of seeking help or avoiding danger. That is, a citizen has the right to act actively if they see a real threat.
Defense must have a clear goal — to stop the attack. Harm may only be caused to the attacker and only to the extent necessary for defense. At the same time, courts assess the circumstances comprehensively: the suddenness of the attack, the number of participants, the physical superiority of the parties, the presence of weapons, the place and time of the incident. The law takes into account that a person in dangerous circumstances acts quickly and is not always able to weigh their actions accurately.
Exceeding the limits of necessary defense is defined in part 3 of Article 36 of the Criminal Code of Ukraine as the intentional infliction of serious harm that clearly does not correspond to the danger of the attack. Three conditions must be met for excess to be recognized: intent, serious consequences (e.g., death or serious bodily injury), and a clear disproportion between the attack and the defense. It is important to note that criminal liability in such cases arises only within the scope of special Articles 118 and 124 of the Criminal Code of Ukraine.
The law also takes into account the psychological state of the person. If, due to strong emotional distress, fear, or stress, they were unable to objectively assess the situation, such actions may remain within the limits of necessary defense. Judicial practice shows that forensic psychological examinations are often appointed to confirm this.
There are also situations where the law provides extended guarantees to the defender. According to part 5 of Article 36 of the Criminal Code of Ukraine, the use of weapons or other means against an armed attacker, a group of persons, or during a violent intrusion into a dwelling is not considered excessive defense, regardless of the severity of the harm to the attacker.
Therefore, necessary defense is the legal right of everyone, but the line between defense and criminal liability is sometimes very thin. In such situations, the reality of the threat, the purpose of the defense, and the circumstances of the incident are of key importance. That is why, after an incident, it is important to seek legal assistance and record all evidence confirming that your actions were aimed at defense and not at causing harm.
