Lately there has been a lot of talk about self-defense and a recent case in which it was not recognized. When can defense really be considered “legitimate”? And why has this case sparked a heated political debate and discussion in the mass media?
F.B.
Article 52 of the Penal Code establishes that a person who commits an act because forced by the necessity to defend their own or another’s right against the current danger of an unjust offense is not punishable, provided that the defense is proportionate to the offense.
For legitimate defense to be recognized, some fundamental requirements must therefore be met: there must be an unjust offense, the danger must be current, the reaction must be necessary, and there must be a proportion between the aggression and the defense.
The danger is “current” when the aggression is still ongoing or imminent.
The reaction cannot be anticipated with respect to an offense only feared, nor can it intervene when the aggression has already ended.
Legitimate defense, in fact, allows repelling a danger, not punishing the aggressor or taking revenge for what has already happened.
This is the central point of the recent case occupying the news. According to the reconstruction accepted by the judges, after the robbery the man left the store, chased the robbers, and fired while they were moving away, killing two and wounding a third.
At the time of the shots, therefore, the danger would no longer have been current and the conduct would not have had a properly defensive function.
The fact that the robbers had used a toy weapon does not alone exclude legitimate defense. The so-called putative legitimate defense can indeed occur when a person, based on concrete circumstances, mistakenly believes they are facing a real danger.
However, a subjective fear is not enough: the error must be justified by objective elements, such as to make the aggression appear credible and imminent.
The case has also taken on a strong political connotation because in 2019 Article 52 was amended by Law No. 36, approved with the aim of strengthening the protection of those who react to an intrusion into their home or the place where they carry out a commercial, professional, or entrepreneurial activity.
In these cases, the law provides, under certain conditions, a presumption of proportionality when a person lawfully present uses a legally held weapon or another suitable means to defend their own or others’ safety or their own property, when there is no withdrawal and there is a danger of aggression. The regulation is even more favorable when the intrusion occurs with violence, threat of weapons, or other means of physical coercion.
The reform introduced by Law No. 36, however, did not establish that any reaction inside a home or store is automatically lawful.
Even after 2019, there must be an unjust aggression, a still current danger, and the necessity to defend oneself. The presumption mainly concerns the proportionality of the reaction but does not turn legitimate defense into a license to chase or punish someone who is already moving away.
It is always up to the judge to reconstruct the facts and verify whether, at the precise moment of the reaction, the person was really defending themselves from a present danger or was reacting to an offense that had already ended.
Legal help desk service: Il Tirreno relies on the competent and qualified collaboration of the law firm Depresbìteris-Scura. The professionals of this firm answer weekly the questions sent to sportellolegale@iltirreno.it.
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