Armed aggression of the russian federation and/or martial law in Ukraine as a threatening danger in the context of extreme necessity

The article highlights the problem of understanding the threatened danger during the martial law and armed aggression of the Russian Federation in Ukraine. The author establishes that the armed aggression of the Russian Federation and the introduction of martial law in Ukraine do not give grounds to recognize them as an imminent danger as an initial legal fact within the scope of emergency. It is stated that the threatened danger should be characterized by such a temporal property as its occurrence before the person commits forced actions related to harm to the interests of law enforcement. If the question of the existence of extreme necessity in the actions of a person is raised, but it is established that the unlawful actions were committed long before the threatened danger, it should be stated that the state of extreme necessity did not exist at the time of the unlawful actions, and therefore Article 39 of the Criminal Code of Ukraine cannot be applied to this situation. It is determined that the mere temporary occupation of a settlement does not indicate that there is a danger of harm to the relevant law enforcement interests. This circumstance should be explained in detail in the appeal/cassation appeal and investigated by the court of first instance, taking into account the evidence available in the case. If, during the existence of the threatened danger, a certain act was committed that formally contains signs of an ongoing criminal offense (for example, possession of firearms), but at the time of termination of the person’s criminal state, such danger had already disappeared, it should be stated that the danger was no longer immediate. In addition, to establish the existence of a danger, the nature of the danger itself must be taken into account. If it has significantly changed at the time of termination of the criminal state compared to the commission of actions in a state of extreme necessity, as a result of which there is no need to use, for example, certain items, then the absence of a state of extreme necessity should be stated. When considering whether a person’s actions are in a state of extreme necessity, it should be determined whether the person’s actions were not committed in the presence of other circumstances that exclude the criminal unlawfulness of the act. This includes, in particular, the fulfillment of the duty to protect the Motherland, independence and territorial integrity of Ukraine.