The legitimate defense in Italy in 6 points since 2019, how personal defense and law works in 2020 in Italy.
The expert fighting tips blog has an international character and each country has its own legislation in terms of the right to defense.
In Italy there is a strong debate on this issue where there are different ways of thinking that it is more than legitimate but without ever forgetting that defending oneself or the choice to defend oneself is a human instinct that no political force should appropriate.
Everyone in life has had to react to some event even just by raising their arms or rejecting a person because you have considered yourself or considered yourself attacked, it is a natural instinct.
Now if you turn this behavior into law you get into the question of what is legitimate to do and what you can not do if you are attacked in yourhouse , because that is what it is.
Everything has been very focused on the use of weapons but I do not think this is the focus as it is not specified the type of weapon but the right to defense that can be barehand, with a improvised weapon,with its own and improper weapon, to get clearly to the firearms.
Let us see what news has been introduced and the changes affecting Article 52 of the Criminal Code.
Defence is always legitimate!
This is the slogan that has been used in this 2019 and that led to the approval of the new law.
The current rule states:
It is not punishable who committed the fact, for having been forced by the need to defend one’s own or others’ right against the current danger of unjust offense, provided that the defence is proportionate to the offense.
Self-defense from 2019 in 6 points, what changes with the new law
Defence is always legitimate.
This is the pivotal assumption of the bill approved yesterday in final life by the Senate with 201 yes, 38 no and 6 abstentions, I put the numbers to make it clear that in the meantime there was no one in the Senate of the Italian Republic as if the much debated topic did not matter much or maybe it was Friday? (sorry but you really must start to respect the mandate of the citizens more also in terms of intellectual and ethical seriousness).
But what is the meaning of this assumption?
That the reaction to the aggression or threats suffered at home or in the workplace is always to be considered “proportionate”: therefore, always justified.
As a result, those who react to the aggressor “in a state of serious distress” are not punished.
Ps. Being a personal defense and combat sports blog, I have no intention of mentioning political groups precisely because for us at the center there is the topic dealt with beyond political controversy.
What changes since 2019 on self-defense:
1 – Article 1 of the Act introduces one of the most controversial aspects: the reaction of those who defend themselves, others or their assets using a legitimately held weapon, is no longer called into question, acknowledging the ‘justified’ and not excessive reaction.
Self-defence will always be presumed, i.e. the proportionality relationship between the defence and the offence will always be considered to exist.
This is the core of the law passed by the Chamber that amends paragraph two of Article 52 of the Criminal Code, according to which it is possible to use “a legitimately held weapon or other suitable means” for the legitimate defense of “one’s own or others’ safety” or of “own or other property”.
Article 1 of the bill provides for certain amendments to Article 52, the Criminal Code.
According to that provision, in the event that a person legitimately present in the dwelling of others or in another place of private residence uses a weapon, lawfully held, to defend his or her own or others’ safety, as well as the property of his own or others, from the “danger of aggression, “the existence of proportionality between offense and defence is always recognized:in fact, “always acts in a state of self-defense an act to repel the intrusion carried out with violence or threat of use of weapons or other means of physical coercing, by one or more persons”.
A further presumption is also introduced within the same article 52, according to which it would always be considered in a state of legitimate defense who, legitimately present within his own or others’ domicile (to be understood in a broad sense, as a place where commercial, entrepreneurial or professional activity is exercised), acts in order to repel the intrusion carried out by the attacker on duty with violence or threat.
Important changes have been made to Article 2044 of the Civil Code on self-defence.
The standard currently prescribes:
It is not the person who caused the damage in self-defense or other
The bill aims to add some requirements:
- In the cases referred to in Article 52(3) and (fourth) of the Criminal Code, the liability of the party who has done so is excluded;
- In the case referred to in the second paragraph of Article 55 of the Criminal Code, the injured party shall be entitled to an allowance the extent of which is left to the fair assessment of the court, taking into account also the seriousness, the operating procedures and the causal contribution of the conduct carried out by the injured party.
2 – Article 2 of the reform amends Article 55 of the Penal Code, which regulates ‘negligent excess’. The new text excludes the criminality of those who have defended himself in a ‘state of serious distress resulting from the current situation of danger’.
The law then intervenes on Article 55 of the Criminal Code with regard to the discipline of negligent excess, excluding, in the various cases of self-defense, the punishability of those who, being in a condition of handicapped defense or in a state of serious disturbance, resulting from the situation of danger, commit the fact for the protection of their own or others’ safety.
Article 624a of the Criminal Code is then amended, providing that in cases of conviction for theft in the apartment and burglary, the conditional suspension of the sentence is subject to full payment of the amount due for compensation for the damage to the offended person.
Article 2 of the bill intervenes on Article 55 of the Criminal Code, on the so-called “negligent excess”:
Where, in committing any of the facts provided for in Articles 51, 52, 53 and 54, the limits laid down by law or order of the Authority or imposed by necessity are negligently exceeded, the provisions relating to negligent crimes shall apply, if the fact is provided for by law as a negligent crime.
A new paragraph 2 is added:
«In the cases referred to in the second, third and fourth subparagraphs of Article 52, criminality shall be excluded if the party who has committed the event for the protection of his or her own safety has acted under the conditions laid down in the first paragraph of Article 61(1) of the Treaty. 5, or in a state of serious disturbance, resulting from the current situation of danger».
This excludes punishability for those who exceed legal limits because they have acted ” in conditions ofserious disturbance,resulting from the current situation of danger “.
Therefore, even if the defence is not proportionate to the offense, as laid down in Article 52, Criminal Code, those who defend themselves do not commit a negligent crime anyway since they have acted to safeguard their own or others’ safety at a time of particular disturbance.
3 – Article 3 provides for the possibility of obtaining a suspended sentence for those who have committed a theft in the apartment only after they have fully paid the amount due for compensation for the damage to the offended person.
Article 3 of the bill amends Article 165, criminal code, adding a paragraph:
‘In the event of conviction for the offence provided for in Article 624a, the suspended sentence shall in any case be subject to full payment of the amount due for compensation for the damage to the offended person.’
4 – News also in terms of civil law: there is no responsibility of those who have acted in conditions of self-defense. Ergo, who is criminally acquitted, is not obliged to compensate – civilly – any damage caused to the aggressor or robber.
For the person defending this, it is an important change that the new rule provides, if he is acquitted incriminal proceedings, is not even civilly responsible,and therefore compensation for the damage he has caused in the context of legitimate defence is not due.
The law intervenes on the civil discipline of legitimate defense and negligent excess, specifying that, in cases of legitimate home defense, the liability of those who have done the fact is excluded in any case: in this way the perpetrator of the fact, if acquitted in criminal proceedings, is not obliged to compensate for the damage resulting from the same fact.
It is provided that in cases of negligent excess, the injured person is entitled to an allowance, calculated by the court with fair appreciation taking into account ‘gravity’, the methods of implementation and the causal contribution of the conduct carried out by the injured person.’
5 – Penalties are tightened for trespassing (one to four years), burglary in the apartment and burglary (four to seven years), while for robbery the minimum imprisonment rises to five years. The maximum sentence of 10 years remains unchanged.
Penalties for a number of heritage offences are tightened: burglary, burglary and aggravated conduct; robbery and aggravated and aggravated hypotheses; and in the event of a breach of domicile it is considered aggravated when it is committed violently on things, or on people, or if the culprit is manifestly armed.
Article 614, the Criminal Code, which punishes trespassing, provides for an increase in the penalty for the basic crime referred to in paragraph 1, replacing imprisonment from six months to three years, with imprisonment from one to five years; the aggravated hypothesis referred to in paragraph 4, in the event that the fact is committed violently on things, or on people, or if the culprit is manifestly armed, which provides for the procedure of his own motion, with the new bill, sees the penalty go from one to five years imprisonment, to imprisonment from two to six years.
Also in Article 624-bis, criminal code, which punishes theft in the home and theft with tear, there are changes in penalties: theft in the home, by introduction into a building or other place intended in whole or in part to private dwelling or in the relevance of it, referred to in paragraph 1, will be punished with imprisonment from four to seven years , instead of imprisonment of three to six years
If the crime is aggravated by one or more of the circumstances provided for in paragraph 1 of Article 625 or if one or more of the circumstances referred to in Article 61 recurs, the penalty will be imprisonment of five to ten years and a fine of 1,000 euros to 2,500 euros”.
The robbery crime, referred to in Article 628, the Penal Code, also sees an increase in penalties.
The increase in penalties, let us remember, is aimed at applying arrest in flagellation, mandatory or optional.
In fact, Article 380(1) of the Code of Criminal Procedure prescribes:
- Officers and judicial police officers arrest anyone caught in the act of a non-manslaughter committed or attempted crime for which the law lays down the penalty of life imprisonment or imprisonment not less than five years and a maximum of twenty years.
Article 381, Code of Criminal Procedure, with regard to optional arrest, in paragraph 1, lays down:
- Officers and judicial police officers have the right to arrest anyone caught in the act of a non-negligent, consummate or attempted crime, for which the law lays down the penalty of imprisonment exceeding a maximum of three years or of a manslaughter for which the law lays down the penalty of imprisonment not less than five years.
The increase in penalties therefore allows, in some cases, the application of the aforementioned pre-precautionary measures, which were not previously possible to apply, because there were penalties below the limit laid down in Articles 380 and 381, the Code of Criminal Procedure.
6 – The reform on self-defence extends the rules on legal aid to a person to whom the closure or acquitting or non-need to proceed with acts committed in conditions of self-defence or negligent excess has been ordered.
Legal aid is introduced in favour of a person who has been acquitted, acquitted or whose criminal proceedings have been closed for offences committed under conditions of self-defence or negligent excess of self-defence.
It is provided that in the formation of hearing roles priority must also be given to trials relating to manslaughter and negligent personal injury that occurred in the presence of circumstances of self-defense at home.
Thus, in the context of the proceedings, if the gratuito patrocinio court detects legitimate defense, legal aid is also granted to those against whom ” closure oracquittalor no need to proceed has been ordered “.
In fact, after Article 115 of the Single Text of the laws and regulations on the costs of justice, referred to in the Decree of the President of the Republic of 30 May 2002, No. 115, the following shall be inserted:
Art. 115-bis (Settlement of the fee and expenses for the defence of a person against whom a decision is issued for closure or judgment of no need to proceed or acquitte in the case of self-defense)
- The fees and expenses payable to the defence counsel, the magistrate’s auxiliary and the party technical adviser to whom a closure order is issued on the ground that the conditions laid down in Article 52 (second, third and fourth paragraphs) of the Criminal Code are met or that there is no need to proceed or to be acquitted because the event does not constitute a criminal offence since it is committed under the conditions laid down in Article 52. , second, third and fourth paragraphs of the Criminal Code and in the second paragraph of Article 55 of that Code, shall be dismissed by the magistrate to the extent and in accordance with the procedures laid down in Articles 82 and 83 and opposition may be lodged under Article 84. In the event that the lawyer is registered in the bar of a district of appeal court other than that of the proceeding judicial authority, by way of derogation from Article 82(2), documented costs and travel allowances shall always be due to the minimum extent permitted.
- If, following the reopening of the investigation, the revocation or appeal of the judgment not to proceed or the appeal of the acquittal, an irrevocable sentence is delivered, the State shall have the right to repeat the sums brought against the convicted person.’
Now, beyond the forecasts, it will be the statistics that will tell what will really change people’s behaviour and the fact that citizens will tend to arm themselves.
Those who are in the industry and use weapons know that possession also involves a lot of responsibility and it is not something so sequential the talk that if I can shoot I buy a weapon because in the meantime you must always hope that you will never have to use it if not for sports at the polygon.
It’s much more duties than rights when you own a weapon.
It is always man who makes the difference and the rules for having a port of arms remain restrictive.
Now we also need to build a security-related discourse as a deterrent to the violation of private property and greater effectiveness in finding those who do this type of crime because unfortunately the statistics between the percentage of thefts and the capture of the culprits are very low.
An important thing is also to avoid using safety news to make “grip” on people’s fear, I say this because it is essential to have a clear view of the problem and any underestimate or over-evaluation leads to an incorrect response to the problem with repercussions on people’s behaviors in their daily lives.
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