Circumstances precluding illegality. When is a crime legal?

What are the circumstances precluding illegality?

Criminal offence and criminal liability are associated with certain features that must occur together. The basic one is the unlawfulness of such conduct, i.e., contradiction with the law. At the same time, however, the law provides that there are circumstances which exclude unlawfulness.

Some acts could theoretically be considered criminal if viewed in isolation (for example, I take a legally held firearm, shoot the person across the street from me and injure him). In the context of the situation (the person in question broke into my flat and also threatened me with a gun), this may be precisely the circumstance that excludes illegality. Such conduct is not criminal from the outset.

The Criminal Code lists situations in which illegality is excluded. These are:

1. extreme urgency,
2. necessary defence,
3. theconsent of the victim,
4. permissible risk,
5. justified use of a weapon.

Let us now look at these individual circumstances precluding illegality in more detail:

Extreme emergency

Extreme emergency is a legal institution that allows you to break the law in order to avert an immediate and imminent danger that threatens the interests protected by the Criminal Code. To constitute an extreme emergency, the following conditions must be met:

1. A threat to interests protected by law: The danger must be to an interest such as health, life, liberty, property or other interests protected by the Criminal Code.
2. Imminence of danger: The danger must be actual and imminent. It must therefore be true that it is occurring at that moment or is approaching very quickly.
3. The danger cannot be averted in any other way: it must be the case that the danger cannot be averted in any other way (for example, by calling for help or by running away). However, when in doubt, case law often tends to side with the threatened person. Indeed, it is often not clear whether a cry for help would have been successful.
4. Less severe consequence: the consequence caused must be less severe than that which would have resulted from the danger.
5. Not having to endure danger: A person acting in extreme emergency must not be obliged to endure the danger (e.g. certain professions, such as firefighters or police officers, have risk as part of their job).

Example of extreme emergency: Imagine you are in a city that has just been hit by a severe flood. The water is rising rapidly and threatening people’s lives and property. The situation is critical and rescue teams have no chance to arrive in time. Your elderly neighbour is trapped in the house next door and is unable to get out on his own because the water has already flooded the ground floor. The only way to save his life is to break the window of his neighbour’s house and get him to a safe place. While this would normally be a burglary offence, in this critical situation it would be an extreme emergency. This is because of the imminent danger to the life of the neighbour, who cannot be helped in any way other than by immediate intervention.

Necessary defence

Necessary defence is a legal institution that allows you to use violence or other illegal means to protect yourself, another person or property from imminent unjustified attack. In order to constitute a necessary defence, the following conditions must be met:

1. A threatened or continuing attack: the first condition is the existence of a threatened or continuing attack.
2. Threat to interests protected by law: Next, there must be a threat to interests protected by law, such as health, property, liberty or dignity.
3. The defence is not manifestly disproportionate to the manner of attack: This does not mean that the intensity of the defence should match the intensity of the attack. But it does mean that the defence must not be excessive (e.g. the use of a firearm against a fleeing thief).

Example of a necessary defence: Imagine a situation where you are walking down a street in the dark in the evening and suddenly a knife-wielding attacker comes at you, trying to harm you. At such a moment you have no choice but to defend yourself. Although the use of physical force against an attacker is normally considered a criminal offence, in this case it would be a necessary defence. This is because your aim is to ward off an attack on your health and life, which are fundamental interests protected by the Criminal Code.

Consent of the injured party

Victim consent is when the victim gives you explicit consent to perform an act that would otherwise be considered criminal. Again, conditions must be met:

1. Consent must be clear and uncoerced: the victim must give consent either before or at the same time as the act is carried out. Consent may also be given after the act has been carried out if the victim’s consent could have been assumed. Consent must be unambiguous and voluntary.
2. Consent cannot always be given: Consent may only be given in cases where the interests at stake are those over which the victim can make his own decisions. Thus, it cannot be given in the case of bodily harm or death, except for authorised medical interventions.

Example of victim’s consent: Imagine a situation where two people voluntarily agree to participate in a boxing match. Before the fight, both participants clearly and knowingly agree on the rules they will follow, including agreeing to use only certain techniques. In a normal situation this would be a physical assault. However, due to mutual consent, the actions of both participants are not criminal because they meet the conditions of the victim’s consent as a circumstance precluding illegality.

Acceptable risk

Permissible risk refers to situations where a person carries out, in the course of his or her employment, profession, position or function , a socially beneficial activity which endangers or violates an interest protected by criminal law. The conditions of permissible risk include:

1. The beneficial result cannot be achieved in any other way: the risk taken in this situation is the only way to achieve the desired result.
2. The beneficial outcome is commensurate with the degree of risk: The degree of risk that is taken must be reasonable and proportionate to the value or importance of the socially beneficial outcome.
3. The activity is consistent with good morals and principles of humanity: Even if the activity threatens or violates an interest protected by criminal law, it must be consistent with generally accepted principles of morality and humanity.

Example of acceptable risk: A pharmaceutical company is testing a new drug with the potential to cure cancer on humans. Human clinical trials are necessary to verify the efficacy and safety of the new drug. Despite the potential risks of testing, the potential benefit is very high because the drug could save the lives of many patients.

Lawful use of a weapon

The Criminal Code states that a person who uses a weapon within the limits set by other legislation does not commit a crime. This is, in particular, the law on arms and ammunition. This circumstance precluding illegality applies in particular to members of the armed forces and members of the security forces in the exercise of their profession.

Example of legitimate use of a weapon: A police officer is called to a house where a murder has just occurred. The perpetrator is hiding in the attic, but as soon as the police enter the house, the perpetrator starts to flee. The officer chases the perpetrator and repeatedly asks him to stop and drop his weapon. The offender ignores the calls and continues to flee towards a densely populated area where he could endanger other people. In this situation, the officer decides to use his service weapon and shoots the offender in the leg to stop him.

Summary

Circumstances precluding illegality play a key role in assessing legal liability for conduct that would otherwise be considered criminal. These legal institutes, such as extreme emergency, necessary defence, consent of the victim, permissible risk and legitimate use of a weapon, make it possible to protect fundamental human values and interests, such as health, life and liberty, even at the cost of breaking the law.