Problems of legal assessment of harm caused by police Officers, the Russian Guard, military personnel of the Federal Security Service of Russia and the Armed Forces of the Russian Federation during a counter-terrorism operation
Authors: Nikulenko Andrei , Smirnov Maksim 
Published: March 2023

Introduction. The article examines topical issues of the use of weapons and military equipment by police and National Guard officers, as well as officers of the Federal Security Service of Russia and the Armed Forces of the Russian Federation in the framework of a counter-terrorism operation. The authors come to the conclusion that the norms of the Federal Law «On Countering Terrorism» are inconsistent with each other, as well as with the circumstances excluding the criminality of the act, enshrined in Chapter 8 of the Criminal Code of the Russian Federation, and the provisions of other regulatory legal acts regulating the conditions for the legality of causing harm to all persons, regardless of their professional or other special training and official position.

According to Part 6 of Article 15 of the Federal Law «On Countering Terrorism», police and officers of the Federal Security Service of Russia and the Armed Forces of the Russian Federation officers participating in the counterterrorist operation, use military equipment, weapons and special means (hereinafter – force and weapons) in accordance with the so-called «special legislation» defining the procedure and grounds for the use of force and weapons, which, in turn, enshrines the relevant prohibitions for the use of force and weapons under certain circumstances. And therefore which not any harm caused as a result of the use of force and weapons, can be recognized as legitimate.

Nevertheless, according to Article 22 of Federal Law «On Countering Terrorism», any harm caused as a result of the suppression of a terrorist act must be recognized as lawful. It seems that when developing the provisions of the «special legislation», Federal Law «On Countering Terrorism» regarding the use of force and weapons by employees (military personnel) of the above-mentioned law enforcement agencies, the legislator did not take into account the fact that the conditions for the legality of harm must comply with exclusively to the conditions stipulated in the criminal law, and the norms of the «special legislation» and the Federal Law «On Countering Terrorism» in this part cannot contradict them in any way. Thus, the existing inconsistency of the norms of «special legislation» regarding the use of force and weapons by employees of the above-mentioned law enforcement agencies, Part 6 of Article 15, Article 22 of the Federal Law «On Countering Terrorism», as well as Chapter 8 of the Criminal Code of the Russian Federation, affects the legal protection of these employees and may lead to unjustified criminal prosecution of the latter for causing excessive harm while suppressing crimes of a terrorist nature.

Research methods: theoretical, statistical, comparative legal, method of formal logic, method of interpretation of legal norms.

Results: The authors substantiate the need to amend Article 37 of the Criminal Code of the Russian Federation, the Federal Law «On Countering Terrorism», as well as regulatory legal acts regulating the grounds and procedure for the use of weapons and military equipment by employees (military personnel) of the above-mentioned law enforcement agencies.