The Supreme Court recognized a sudden attack as grounds for necessary defense: the case was reclassified and the man was exempted from liability

The Supreme Court, by a panel of judges of the First Judicial Chamber of the Cassation Criminal Court in case No. 214/7912/18, concluded that the man previously convicted of intentional murder and grievous bodily harm acted in a state of necessary defense during a sudden attack by two persons. The court reclassified his actions as exceeding the limits of necessary defense and, due to the expiration of the statute of limitations, exempted him from the imposed punishment.

The courts of first and appellate instances established that on the evening of October 2, 2018, near a gambling establishment in Kryvyi Rih, a conflict arose between the convicted man and two men. During the altercation, he inflicted fatal stab wounds on one victim and serious bodily injuries on the other.

For this, he was convicted under Part 1 of Article 115 of the Criminal Code of Ukraine (intentional murder) to eight years imprisonment and under Part 1 of Article 121 of the Criminal Code of Ukraine (intentional grievous bodily harm) to six years. The combined sentence for the crimes was eight years imprisonment.

In the cassation appeal, the defense insisted that the man did not attack but defended himself from the two victims who first used force against him. According to the defense, his actions should have been qualified as exceeding the limits of necessary defense.

Position of the Supreme Court

Reviewing the case, the Supreme Court reminded that a guilty verdict cannot be based on assumptions. The guilt of a person must be proven beyond a reasonable doubt, and the totality of evidence must exclude any other reasonable explanation of the event except the prosecution's version.

The panel of judges noted that the prosecution is obliged to prove beyond a reasonable doubt all elements of the criminal offense. At the same time, the court, when evaluating evidence, cannot ignore established circumstances simply because they do not align with the prosecution's version. If such circumstances allow for another reasonable version of events, and the prosecution has not refuted it with proper and admissible evidence, this indicates the presence of reasonable doubt.

The Supreme Court emphasized that to meet the standard of proof, it is not enough for the prosecution's version to appear more likely than the defense's. Any reasonable doubt must be disproved by facts established on the basis of admissible evidence.

In this case, the key question was whether the convicted man was in a state of necessary defense when inflicting stab wounds on the victims. The defense argued that the man was defending himself from a socially dangerous encroachment by two victims who beat him and threatened further violence.

The Supreme Court noted that the state of necessary defense is assessed considering all circumstances of the case. As established by the courts, about an hour before the fatal events, a conflict occurred between the convicted man and one of the victims inside the gambling establishment, after which the victim left the premises. Later, he returned with his brother, and they called the man outside, where the conflict continued.

The panel drew attention to the fact that the fight lasted less than a minute. Moreover, witness testimony indicated that after the convicted man left, the doors of the establishment were blocked from the outside. According to the Court, these circumstances align with the defense's version of a sudden and intense attack and do not support the prosecution's version of a gradual development of the conflict. The Court concluded that the prosecution did not refute beyond a reasonable doubt the claims about the suddenness and intensity of the attack. The Supreme Court also took into account that the forensic medical examination recorded abrasions on the convicted man's face, chest, and lower limbs. This, in the Court's opinion, indisputably indicates the use of violence against him by the victims, who had a numerical advantage.

At the same time, the panel disagreed with the conclusions of the previous instances that the intent to cause harm and the number of blows automatically exclude the state of necessary defense. The Court stressed that crimes under Articles 118 and 124 of the Criminal Code of Ukraine are also intentional, and their peculiarity is that they are committed precisely during defense against a socially dangerous encroachment.

The Supreme Court emphasized that the right to necessary defense arises from the moment a real threat of harm is created. The law does not require a person to wait until serious bodily harm is inflicted. A sudden attack by two aggressively minded persons at night, blocking the doors, and delivering blows created a real and obvious danger for the convicted man, and therefore he had the legal right to defend himself.

At the same time, the Supreme Court concluded that the method of defense clearly did not correspond to the nature of the encroachment. Delivering numerous knife blows to vital organs led to the death of one attacker and serious bodily injuries to the other, indicating an obvious excess of the limits of necessary defense.

The Supreme Court changed the legal qualification of the convicted man's actions:

• from Part 1 of Article 115 of the Criminal Code of Ukraine — to Article 118 of the Criminal Code of Ukraine (intentional murder exceeding the limits of necessary defense);
• from Part 1 of Article 121 of the Criminal Code of Ukraine — to Article 124 of the Criminal Code of Ukraine (intentional grievous bodily harm exceeding the limits of necessary defense).

Under the new qualification, the Court imposed two years imprisonment for each episode, and a combined sentence of three years imprisonment.

However, since the statute of limitations for prosecution had expired since the commission of the criminal offenses, the Supreme Court exempted the man from the imposed punishment under Part 5 of Article 74 of the Criminal Code of Ukraine.

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