Prievarta – būtinojo reikalingumo pavojaus šaltinis

Abstract

The theory of Criminal Law does not offer the general conception of physical and psychological violence. Scientists of Criminal Law provide varying definitions of physical and psychological violence and different viewpoints regarding individual cases of violence. Such a underdeveloped theoretical framework of the issue makes difficult the legal assessment of both types of violence where other norms of Criminal Law are concerned.
Necessity as a circumstance excluding criminal liability cannot be considered a sufficiently developed norm of Criminal Law either. This article deals with the interaction of specifically two norms: necessity and violence.
In the analysis of violence as the source of a necessity threat, the author separately explores physical and psychological violence. The author gives a detailed analysis of physical violence, dividing it into two groups. The first group includes the most dangerous and intensive cases of physical violence where an individual loses control of his actions. These cases, according to the author, should be called invincible physical violence. The second group is comprised of physical violence cases where an individual does not lose control of his actions.
As regards the kinds of physical violence, the author points out that there are cases in which physical violence cannot be considered the source of a necessity threat. The article contains an argument that conduct of the individual acting (or not acting) under the influence of invincible physical violence does not correspond to the features of the first element of necessity as a circumstance excluding criminal liability, i. e. does not formally match the features of a criminal act. Invincible physical violence cannot therefore be identified as the source of a necessity threat.
The author discusses separately hypnosis as a case of physical violence. Hypnosis manifesting itself as a series of complicated automatic actions fading from one’s memory, according to the author, is a kind of invincible physical violence; therefore it cannot be regarded as the source of a necessity threat.
On the issue of psychological violence, the author cites different viewpoints of scientists researching necessity and psychological violence. The author gives his own polemical viewpoint on psychological violence as the source of a necessity threat, and recommends that psychological violence covers any kind of intimidation resulting in fear of negative consequences.
The author further concludes that for physical (except for invincible physical violence) and psychological violence to be identified as the source of a necessity threat, the intensity of violence must increase to the extent that makes it match all features of justified necessity.
The article also cites the specific case of enacting physical and psychological violence as a circumstance excluding criminal liability in the Article 40 of the 1996 Criminal Code of Russia.