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Excess self-defense in Italy

337ED462-879D-4F2E-B43D-CD64DF2D4515 Excess self-defense in ItalyExcess self-defense in Italy, when it is committed and what the law says.

When the culpable excess of self-defense is triggered but defending oneself from an aggression is legal?

Excessiveself-defence occurs when the victim of a crime turns into a culprit, as in the case of a thief once he has already left home.

In this case, the application of self-defense is excluded and the victim will be punished for the action committed against his aggressor. In fact, one of the cardinal principles of our penal system is that
“the defense must be proportionate to the offense received”,
otherwise the discipline of culpable excess is applied with the consequences that we will see.

Now I know that you often read news episodes where it is told of actions by the victim of the robbery that from victim becomes executioner but are behaviors that should not be judged too lightly because in that state of strong stress and those who have had the misfortune to live situations of this type know that time stops and the perception of what you are doing changes totally to the point of erasing everything that is around.

Very trained people are able to have more rationality in contexts of high risk and strong stress but precisely they are trained or “very accustomed” people but it is very difficult for an ordinary person who makes a normal life to have that type of skills.

With this I do not want to justify certain behaviors but that type of events happen in an instant because you are attacked and consequently you can do actions that later you can regret without a real will if not an instinct of survival that prevails over everything else.

The post-aggression reasoning that is done by the magistrates through the investigations has nothing to do with what happens in the head of the attacked at that moment but the actions that are done will still be judged.

Here is what the law says about it and the assumptions of legitimate defense.

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When is there an excess of self-defense?

The defense against an assault, theft or robbery is legitimate if proportionate to the offense, otherwise we speak of culpable excess of defense, a circumstance severely punished by law and provided for in Article55 of our Criminal Code.

Excessive defense is defined as the culpable behavior of those who put in place a reaction exceeding the limits of proportionality, for example because it is too aggressive with respect to the offense, which occurred at the end of the dangerous situation or if, despite the possibility of escape, the victim has decided to act violently.

The behavior of those who “committed the act in a state of serious disturbance, deriving from the situation of danger in progress”,is not considered excessive self-defense, so paragraph 2 of Article 55 of the Criminal Code.

With the exception of these cases, the subject who has acted in excess of self-defense will undergo a trial for the fact committed and, if convicted, the sanctions provided for by the Criminal Code.

 

Device of art. 55 Criminal Code

Where, in committing any of the acts provided for in Articles 51, 52, 53 and 54 (1), the limits established by law or by the order of the Authority or imposed by necessity are culpable (2) exceeded, the provisions concerning culpable misdemeanours shall apply if the act is provided for by law as a culpable offence (3).

In the cases referred to in the second, third and fourth paragraphs of Article 52, criminality shall be excluded if the person who committed the act for the protection of his own or others’ safety has acted under the conditions referred to in the first paragraph of Article 61, no. 5) or in a state of serious disturbance, resulting from the current dangerous situation (4).

Notes

(1) Whenever the factive conditions of one of the causes of justification are met and the subject goes beyond its limits, acting negligently, it is called culpable excess. It should be remembered that although the rule in question does not mention the consent of the person entitled (v. 50), the prevailing doctrine considers that the excess of power has a general character, consequently also extendable to the aforementioned scriminante, together with the specific scriminanti (think of the case of disproportionate reaction to the arbitrary acts of the public official (v. 4 d.l.l. 14 September 1944, n. 288) and to the putative scriminanti (v. 59). A minority theory disagrees, as it believes that one should comply with what the norm literally provides.
Having established this, without particular criticalities are instead recognized the culpable excess in the exercise of the right or fulfillment of the duty (in which the activity must be started in the exercise of a right or in the fulfillment of a duty and, therefore, the limits set by law or order have been exceeded, by fault), the culpable excess in the legitimate defense (in which a fact situation is revealed in which one can have legitimate defense, whose limits of defense-offense proportionality are culpablely exceeded), culpable excess in the state of necessity (which occurs by excess of means, in the proportion between danger and detrimental action) and culpable excess in the legitimate use of weapons (in this regard, remember the case in which a subject has used weapons to prevent the escape of robbers, causing the death of the hostage).

(2) In order for the rule in question to apply, it is not only necessary that the conditions for the application of one of the criminants are met. It is also required to overcome the limits of the action allowed by the scriminante, or the so-called excess.
The latter was by doctrine classified in its two manifestations. One can speak, in fact, of culpable excess both when the agent exceeds because he incorrectly assesses the factful situation and when, having assessed the exact fact situation, the agent due to imprudence, incompetence or negligence in the executive activity, exceeds producing an event more serious than that which would have been necessary to cause.

(3) The legal nature of this case is the subject of debate in legal literature, which has been expressed through two different conceptions. According to the dominant doctrine it is guilty in the strict sense or the crime committed as a result of the excess is considered culpable in all respects, while an orientation remained a minority has spoken of improper guilt, pertaining only to the plan of sanctioning treatment, as the event is still wanted by the subject.
This is not a theoretical debate without practical consequences, since the configurability of culpable excess in the category of intentional or negligent crimes involves the application of a completely different discipline. In fact, if the excess is considered malicious, there is compatibility between the figure in question and the attempt (v. 56), the participation of persons in the crime (v. 110 s.) and the continuation (v. 81), but not with the aggravating circumstance of the prediction of the event referred to in art. 61 No. 3, which instead is compatible with culpable excess if this is considered culpable. In the latter case there is no compatibility with the attempt (v. 56), with the participation of persons in the crime (v. 110 s nce).

(4) This provision was introduced by Art. 2 paragraph 1 of Law no. 26 April 2019. 36.

 

Explanation of art. 55 Criminal Code

Culpable excess is applicable to all grounds of justification, including the consent of the person entitled, and to other scriminanti provided for in special laws, even if not expressly contemplated by the article, as a general principle of criminal liability.

For the operation of the principle in question, the presence of certain conditions is required:

  • the presence of all the elements of the relevant scriminante in the specific case;
  • the culpable exceeding of the limits drawn by the scriminante;
  • the punishability by way of fault of the conduct exceeding the limits.

There can be two ways in which to incur culpable excess:
the excess in the means, or the culprit correctly evaluates the limits within which to act or react, but by mistake in the execution, culpablely exceeds the aforementioned limits;
the error in the end that occurs instead when the culprit errs in assessing the limits within which he could legitimately act or react.

Being a structurally negligent offense, it will be evaluated according to the crisms referred to in art. 43 paragraph 3.

Article 10 of the Directive is applicable to the Article 55 provides for the possibility that the offender, even if scriminated, culpablely exceeds “the limits established by law or by the order of the Authority or imposed by necessity”.

The assumptions of the scriminante, therefore, are actually existing; however, the agent, through negligence, exceeds the objective limits established for the same.

The result produced by the agent may be caused, alternatively, by an erroneous conviction about the existing facto situation, or, even in the presence of a correctly assessed situation, by an error in the execution of the conduct put in place.

In particular, interesting ideas reveals the art. 55 with reference to the scriminante of legitimate defense, governed by art. 52 c.p..

To understand if there has been a culpable overcoming of the limits established by the laws, it will be necessary to look at the inadequacy of the defensive reaction of the attacked, also because of the particularly violent means used.

Obviously, it will be necessary in this case, as well as in the case of the other scriminanti, that the excess is completely involuntary, otherwise falling the behavior in the sphere of malicious conduct, autonomously punishable.

Article 10 of the Directive is applicable to the 2 paragraph 1 of Law no. 26 April 2019. 36. introduced a second paragraph in the provision in comment, in harmony with the reform of legitimate defense that has affected in the first place on art. 52 c.p..

The second paragraph provides that “in the cases referred to in the second, third and fourth paragraphs of Article 52, punishability is excluded if the person who committed the act for the protection of his own or others’ safety has acted in the conditions referred to in Article 61, first paragraph, n. 5) or in a state of serious disturbance, deriving from the situation of danger in progress”.

It was therefore inserted, by the legislator of the reform, a cause of non-punishability for the one who acted:

in conditions of handicapped defense,typified in art. 61 No. 5 c.p. as circumstances of time, place or person, also with reference to age, such as to hinder the public or private defense.

The handicapped defense will have to be ascertained in practice by the judge from time to time, so much so that the jurisprudence, with judgment of 6 March 2018, n. 15214, stated that

“only a concrete assessment, on a case-by-case basis, of the conditions that allow, through an overall assessment, to consider that a diminished public and private defence capacity has actually been achieved is capable of ensuring the consistency of the application of the aggravating circumstance with its justification”;

 

in a state of serious disturbanceresulting from the current dangerous situation.

The requirement of the state of serious disturbance, due to its psychological connotation, has raised several criticisms of the doctrine, which has observed that the culpable excess in committing a scriminated fact usually complies with objective requirements, objectively verifiable

The serious disturbance is a requirement not only “elastic”, but even vague and indeterminate, exposing itself for this to censures of constitutional illegitimacy, in contrast with the principle of legality, of which the determination and exhaustiveness of the case constitute an indispensable corollary, guarded by art. 25 Cost..

Moreover, the doctrine observed, a similar result could have been achieved (and so did the jurisprudence in several judgments), through the application of the fourth paragraph of art. 59 c.p., considering that the state of fear of the attacked may have been caused by an error of perception regarding the seriousness of the fact situation.

The “grave disturbance” has been associated with the doctrinal creation category of uncollectability.

It has been believed, in fact, that the subject who acts in a state of serious emotional disturbance is not free to determine himself, and acts rather prey to an instinct of “survival” given by the fear due to the circumstances, which therefore makes the behavior that a “model agent” would have had in an abstractly different situation uncollegible.

This new notion of “serious disturbance” must then be placed in relation with other similar institutions, already present in the penal system, aimed in some way, albeit with clarifications, to give prominence to the “emotional states” of the agent.

First of all, an institution that has similarities with the notion of serious disturbance is that of provocation, mitigating provided for by No. 2 of art. 62 of the Criminal Code, which provides that the crime is mitigated when the agent has carried out the conduct reacting, in a state of anger, to an unjust fact of others.

However, while in the case of art. 55 the reaction must be strictly contextual with respect to the aggression, it is believed that, in the case of the provocation, the response can also arrive “cold” at a later time than the aggressive action.

Secondly, art. 90 of the c.p. provides that “emotional or passionate states do not exclude or diminish imputability”.

Although the jurisprudence has tried to mitigate the rigor of the latter provision, allowing the judge to affect if not in the “an” at least on the “quantum” of the sentence, granting the generic extenuating circumstances, we had never gone so far as to attribute an autonomous relevance to the emotional state of the agent subject, and this is the innovative scope of the second paragraph of art. 55.

Although the first commentators have encountered many difficulties in identifying the psychological states that can integrate the “serious disturbance”, one point seems certain:

that for which the reaction of the attacked must be exclusively aimed at refoulement and self-preservation, never at attack or, even, at punishment.

It is clear that the application of the rule in question will raise particular difficulties, especially with regard to the evidential dimension, because of the well-known difficulties of assessment that have always been encountered in jurisprudence when it is a question of analysing the internal psychological attitudes of the acting subject.think in this sense of the presumptive indices elaborated by the jurisprudence in order to distinguish, in a more objective way, between the hypothesis of possible intent and that of conscious guilt or the difficulties encountered for the purpose of determining the “persistent and serious state of anxiety and fear” required for the configuration of the crime of Stalking).

In any case, of fundamental importance will be the analysis of the context and circumstances in which the reaction to the aggression took place (which generally include the circumstances of time and place), which will allow to confer an aspect of objectivity to an emotional state that could otherwise result, due to its subjectivity, the subject of a highly discretionary assessment.

Culpable excess of self-defense: some examples

Let’s take some examples to better understand when it is correct to speak of culpable excess of self-defense and when not.

If the owner of a jewelry store is threatened by a thief and reacts by shooting first you have self-defense; on the contrary if he shoots while the thief is running away from the store with the stolen goods he commits the excess of self-defense, specifically a murder, because he pulled the trigger even if the dangerous situation was now over.

In the same way there is an excess of self-defense if the owner of a field of fruit plants reacts excessively violently against a little boy caught stealing a handful of apples.

In a nutshell, the excess can consist of a reaction disproportionate to the damage suffered (as in the case of the theft of a few fruits) or subsequent to the moment of danger, as when you shoot a thief while moving away from your home.

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What are the conditions for self-defense

Self-defense can be said to be legitimate if there are certain conditions provided for by law, such as the onset of danger and a proportionate reaction to the offense.

In our legal system, legitimate defense is a “cause of justification” and, as such, makes behavior that in other circumstances would be a crime not punishable.

But the defense is truly legitimate only if these elements are used (Article 52 of the Criminal Code):

  • the need for defence to safeguard one’s own or others’ rights;
  • the actuality of the danger means that it must be looming;
  • the injustice of the offense, so the conduct of others must be a circumstance punished by law;
  • the inad volontariness of the danger, the danger from which one defends oneself must not have been caused by the victim;
  • the proportionality between defense and offense (judgment left to the discretion of the judge).

Only when these assumptions are met, the defense is legitimate and the innocence of the victim is recognized who, for example, if he shot a thief who entered the house will not be charged with attempted murder.

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Conclusions

Culpableexcess in self-defence occurs when the right proportion between offence and defence is lost through fault, understood as an inexcusable error as a result of imprudence, or incompetence in calculating the danger and the means of salvation.

The law on legitimate defense introduced in 2019 has led to an improvement but we must always be very careful because common sense is not the law and how you reason in a court and even if you think you are right it does not mean you have it for Italian law.

Surely today there are laws that take into account some aspects that were previously considered but were not defined as law.

Stay Tuned!

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What do you think?

Written by Andrea

Instructor and enthusiast of Self Defence and Fight Sport.

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