Self-defense is regulated in Article 20.4 CP. It is based on the basic idea that the right does not have to endure unjust actions. Self-defense has a dual foundation:
- Single Appearance. Protection principle. It is based on the individual need to protect against unfair attacks.
- Appearance supraindividual. Maintenance of the legal order. It is represented by the need to defend the legal order and the general law.
The condition of the legitimacy of the defense is the need to defend. In principle it is not necessary that there proportionality. There should be no proportion between the damage and avoiding.
Requirements Of Self Defense.
The factual situation of self-defense is the existence of unlawful violence. Unlawful violence is the threat of legal real danger comes from human behavior. If not human, no budget for self-defense. This human behavior can be active or omissive, willful or reckless.
Aggression must be typical and unlawful, threatening the individual legal right. The groups do not allow self-defense. Although it has limitations, self-defense to be liable.
The attack, in addition to typical and unlawful, must be:
- Current. That is to occur imminently, when it is occurring or the duration of the attack.
- Real. Imagine that the person who is the victim of an assault.
To assess the reality of today and we went to the criterion aggression of the impartial spectator. Simply rational belief that this aggression will occur to estimate self-defense.
The defense must be necessary:
- Need abstractly. That the given situation requires the use of defense to protect property. The defense is necessary when imminent, contemporary aggression exists and where the only way to repel aggression.
- Need specific. It requires the kind and extent of the medium used is that requiring that situation. The need rational means employed proportionality is linked to both the kind and the extent of the medium and not between the harm caused and avoided. Evils are not weighted, but the intensity. It determines if the medium is rational and if necessary to the specific case according to whether the subject?s action was what would have prevented the attack causing the least damage to the environment that has been used. You have to see if the subject available and used various means less damage that could cause. It is the principle of least harmfulness.
It is important to distinguish two aspects of defense need:
- If lacking in the abstract need not be the complete defense or incomplete, because it lacks an essential element of the cause of justification.
- If you lack specific need not be the complete defense but if you could apply the incomplete. When necessary, there is an excess intensive. They could have implemented another best means or with less intensity. It is distinguished from excess extensive, ie, is revenge. There is no defense action.
Lack Of Provocation Enough For Part Of Ombudsman.
It occurs when there is no defending that led to another. A strict interpretation of it can lead to absurd results. For provocative behavior is meant to produce a mental disorder in the aggressor. The Criminal Code speaks of sufficient provocation. Only when aggression is the normal reaction to that provocation will plead self-defense.
The Supreme Court denies self-defense in cases of quarrel mutually accepted because the contestants are raised each other. Have exceptions when:
- The fight is not accepted.
- It intervenes to make peace.
Other Limitations Of Law Of Defense.
- When there are formal requirements but lack the foundation, the doctrine says that in the absence of the foundation there can be no self-defense.
- Missing the need for defense. When it exceeds assaulted defense continues when no longer needed. Is revenge.
- Supraindividual limitations, for example, attacks us guilty. They do not question the legal system so that in these cases should be avoided confrontation.
- Also excluded self-defense in cases of close personal relationships.
- There is no self-defense when the attack takes place at the low value goods attacked to defend themselves is not entitled to a defense if the offender seriously injured. There would be no self-defense because it reaffirms the law but there is a remarkable disproportion between the attack and the damage caused by the action of defense. In these cases we must act with a simple revulsion at acting improperly.
It can act in self-defense to defend their own property or third parties. The requirements are the same in both cases.
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Source: http://www.cpgrupolegal.com/374/legitimate-defense-in-criminal-law.html
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