The right to necessary defense is one of the fundamental manifestations of the principle of self-defense in criminal law and is directly linked to a person’s natural right to life, safety, and protection from unlawful encroachment.

At the national level, it is enshrined in Article 27 of the Constitution of Ukraine: “Every person has the inalienable right to life; no one may be arbitrarily deprived of life. It is the duty of the state to protect human life; everyone has the right to protect their own life and health, as well as the lives and health of others, from unlawful encroachments.”

In the Criminal Code of Ukraine, this right is enshrined in Article 36, which permits causing harm to an attacker within the limits of self-defense against a socially dangerous attack. However, in practice, drawing the line between lawful self-defense and exceeding its limits often poses significant difficulties—both for law enforcement agencies and for the courts.

This problem becomes particularly acute in situations where a person is forced to act spontaneously, under stress, or in the face of a threat to life or health—often without the ability to objectively assess the degree of danger or the appropriateness of their actions. In such cases, the legal assessment of the incident by pretrial investigation authorities or the court may differ significantly from the subjective perception of the incident by the person who acted in self-defense.

Against this backdrop, questions are increasingly being raised about the need for a more flexible approach to interpreting the limits of necessary self-defense, strengthening the safeguards for a person acting under dangerous circumstances, and ensuring a balance between protecting the victim’s interests and preventing the criminalization of actions that are, in essence, self-defense.

Thus, Article 36 of the Criminal Code of Ukraine provides as follows: “Part 1—Necessary defense is recognized as actions committed with the aim of protecting the rights and interests of the person being defended, or of another person, as well as public interests and the interests of the state, from a socially dangerous attack by inflicting upon the attacker harm that is necessary and sufficient in the given situation to immediately avert or stop the attack, provided that the limits of necessary defense were not exceeded.”

Analyzing the case law of the Supreme Court, one can conclude that the court defines a socially dangerous attack as any actual act or attempt aimed at causing harm to the rights and interests of the person defending themselves or other persons that are protected by law, as well as to public or state interests. Such interests include a person’s life and health, honor, dignity, personal and sexual freedom, the inviolability of the home, the right to property, and other lawful rights and interests requiring protection.

The primary goal of the person exercising self-defense is to preserve and protect these values by stopping or preventing the attack. Necessary self-defense manifests itself exclusively in active actions that may outwardly resemble elements of crimes provided for in the Criminal Code (for example, causing bodily injury), but have a different legal nature and purpose. (Supreme Court Resolution of September 25, 2025)

Part 2 of Article 36 of the Criminal Code of Ukraine – “Every person has the right to necessary defense regardless of the possibility of avoiding a socially dangerous attack or seeking assistance from other persons or authorities.”

This grants the following rights to a person whose protected rights are being infringed upon:

1. An absolute right to self-defense—the person is not obligated to flee, hide, negotiate, or otherwise attempt to avoid the attack. The law permits choosing an active means of defense rather than passive avoidance;

2. It establishes the right—not the obligation—to seek assistance—even if it is theoretically possible to call witnesses, contact the police, or wait for outside support, this does not deprive a person of the right to defend themselves immediately;

3. The “no duty to retreat” principle—unlike the laws of some countries, Ukrainian law does not impose a duty to retreat. A person has the right to defend themselves where they are if an attack is directed at them.

The Supreme Court has repeatedly noted in its decisions that lower courts erroneously assume that a person’s ability to flee, evade, disperse, or seek help precludes the state of necessary defense—such an interpretation directly contradicts Part 2 of Article 36 of the Criminal Code of Ukraine, which establishes the right to self-defense regardless of the possibility of avoiding the attack. The Supreme Court explicitly states that the court has no right to analyze whether a person could have: fled; resolved the conflict “peacefully”; stopped the attack by less severe means; or sought help. These are not criteria for assessing the lawfulness of self-defense. The only relevant question is whether there was a real, socially dangerous attack (Supreme Court Resolution of May 11, 2021; Supreme Court Resolution of December 13, 2023; Supreme Court Ruling of September 24, 2025;).

Part 3 of Article 36 of the Criminal Code of Ukraine—“Exceeding the limits of necessary self-defense is defined as the intentional infliction of serious harm upon the aggressor that clearly does not correspond to the danger posed by the attack or the circumstances of the defense. Exceeding the limits of necessary defense entails criminal liability only in cases specifically provided for in Articles 118 and 124 of this Code.”

In other words, for the actions of the person defending themselves to be recognized as “exceeding the limits,” three conditions must be met simultaneously: 1. Intent: The person defending themselves acted intentionally. They understood that they were causing harm and intended to do so; 2. Result: Serious harm was inflicted on the attacker. In the context of the law, this means one of two things: intentional homicide; or intentional serious bodily injury; 3. Clear Disproportion: The serious harm inflicted “clearly does not correspond” to the danger. This is the key point. The disproportion must be obvious and glaring, not merely “slightly greater.”

Part 4 of Article 36 of the Criminal Code of Ukraine— “A person shall not be subject to criminal liability if, due to intense emotional distress caused by a socially dangerous attack, they were unable to assess whether the harm they caused was proportionate to the danger of the attack or the circumstances of the defense.”

In real-life situations, a person acting in self-defense is not always able to accurately assess the degree of danger posed by the attack or the proportionality of their actions to the situation, as they are in a state of fear, panic, or intense agitation. Therefore, when legally assessing such actions, the defender’s subjective perception of the situation must be taken into account.

Part 4 of Article 36 of the Criminal Code of Ukraine provides that a person shall not bear criminal liability if, due to intense emotional agitation caused by the attack, they were unable to correctly assess the proportion between the harm caused and the danger of the attack or the conditions of self-defense. The Plenum of the Supreme Court also emphasizes that, under such circumstances, the actions should be classified as necessary self-defense.

Thus, causing harm to an attacker while in a state of intense emotional agitation does not preclude the existence of necessary defense and rules out the possibility of finding that the limits of such defense were exceeded, if it was precisely that emotional state that deprived the person of the ability to adequately assess the situation.

When analyzing the Supreme Court’s decision, it should be noted that the court will first examine the available evidence, which will reflect objective data about the individual and whether they were in a state of intense emotional distress. The most important evidence for establishing or refuting the existence of a state of severe emotional distress is a forensic psychological evaluation of the individual’s emotional state—such as stress, frustration, etc. This examination is conducted pursuant to Order No. 53/5 of the Ministry of Justice of Ukraine dated October 8, 1998 (Supreme Court Resolution dated August 3, 2021).

Most importantly, Article 36 of the Criminal Code of Ukraine includes Part 5: “The use of a weapon or anyother means or objects to defend against an attack by an armed person or a group of persons, as well as to prevent an unlawful violent intrusion into a dwelling or other premises, regardless of the severity of the harm caused to the assailant.”

Simply put, the law grants a citizen the right to vigorous self-defense in three specific, particularly dangerous situations, and relieves them of the obligation to “weigh” whether they will cause “excessive” harm to the attacker. In these three cases, your defense is always deemed lawful, regardless of the severity of the harm you inflicted on the attacker(s) while stopping the attack or intrusion.

The Court itself reaches this conclusion in its ruling, establishing that in the case of the intentional taking of a person’s life, in order to correctly determine whether the person acted in self-defense and whether their actions remained within the limits necessary for self-defense or exceeded those limits, the court must assess the presence or absence of a socially dangerous attack and, if such an attack exists—provided the nature of the attack does not fall under the criteria specified in Part 5 of Article 36 of the Criminal Code— — assess whether the defense was proportionate to the danger posed by the attack (Supreme Court Resolution of May 22, 2024).

Necessary defense is a key instrument for protecting the right to life and safety; however, its application remains complex due to the fine line between self-defense and excessive defense. An analysis of the provisions of Article 36 of the Criminal Code of Ukraine and the practice of the Supreme Court demonstrates the importance of taking into account the actual danger, the subjective perception of the threat, and the specific circumstances in which the person is acting. The law provides broad safeguards for a person acting in self-defense, including in situations involving an attack by an armed individual or a group of individuals, thereby excluding criminal liability.

Author of the article: Ivan Yurdyk

Attorney at Barristers Law Firm