17 Dec Legitimate defense in Italy
The legitimate Italian defense is a legal institute recognized by many laws.
Already the ancient Romans recognized the right of an unjustly injured person to defend themselves through the use of force, provided that the defense was proportional to the offense.
From the Roman principle, summed up in the Latin phrase "Vim vi repellere licet" (it is lawful to repel violence with violence) contained in the Justinian Digest, the principle of legitimate defense incorporated in modern European law descends.
The Italian legal system recognizes the principle of self-defense in its article 52 establishes the proportionality between aggression and response as a condition for the validity of self-defense.
In Italy the principle of self-defense is in question and could undergo major changes that contribute to a great stir on this issue among citizens.
Offense and defense
The proposed modifications would cancel the reference on the principle of proportionality between offense and defense in case of undue entry into the domicile or private property.
In the changes to this article that contemplates the legitimate defense would imply greater legal protection for the man who uses weapons to defend himself in his room, even in the case that there is no direct threat.
Critics of the reform proposal argue that this action would increase the use of weapons which would lead to a climate of greater violence.
In any case, the reform only tries to prevent extreme situations in which those affected can defend their rights with the support of the law and of course this would not diminish the state monopoly of the use of force.
The presumption of self-defense
The presumption of self-defense would grant greater guarantees to citizens acting in defense of their lives, relatives and property; Naturally, it would still need to be proven on a case-by-case basis, and those situations in which totally excessive and unjustifiable violence manifests itself as self-defense could easily be classified as criminals even after the corresponding legal review, in reference to all acts in which it has been corroborated that the legitimate defense was replaced by revenge.
All this is inspired by the French criminal law will establish the legitimate defense against those who pave the domicile, as a way to stand up to citizen insecurity, and close the irregular camps, many of them of Roma, Romanians, who have been filling the country.
In general, the legitimate defense exempts those who act in self-defense or their rights from criminal responsibility whenever certain circumstances meet: illegitimate aggression, rational need of the means used to prevent or repel it and lack of sufficient provocation on the part of the one defending itself.
Self-defense is a cause that eliminates unlawfulness and, therefore, prevents such conduct from being punishable.
The rational need of the medium used.
On the rational necessity of the means used, the criminal doctrine agrees that it does not refer to the instrument used to defend itself but to the conduct with which the defense is carried out.
That is to say, proportionality is not given by the means used to defend itself, but rather that the actions of those who defend themselves are sufficient to prevent or repel the illegitimate aggression of which they are victims; If it goes beyond that, it acts in excess.
Another relevant point when determining whether a person acted in self-defense is whether the act constitutes a unit of action. For example, he would not act in self-defense who after suffering an illegitimate assault at the door of his house, enters the house, takes a gun, chases the criminal and kills him.
In that case it would be a case of revenge and not a legitimate defense.
In reference to all of the above, we will take as a reference two broad meanings to understand exactly the issue of legitimate defense as a criminal instrument used in the Italian criminal code and why the reform on protection in the Italian criminal legal system.
Francesco Carrara, the eldest representative of the classic school of Italian Criminal Law, when referring to self-defense, he affirmed that “the justifier is not a punishment but an act of defense by those who do not say that the individual who killed deserved death, but expresses, ' I killed precisely, because I had the right to save myself from an unjust and imminent death that I could not avoid otherwise.
García Zavalía, said that «the man who defends himself is not in the situation of the judge in his cabinet, to be able to appreciate exactly the danger of the attack and the nature of the means that must be opposed. His mood is necessarily disturbed by fear, by the exaltation of the one who fights and, therefore, so much, it becomes very difficult not to exaggerate the danger and the means used ».
The state is primarily the subsidiary guarantor of the rights that belong to each person by their own nature.
The state is first and foremost the subsidiary guarantor of the rights that belong to each person by their own nature, and the legitimate defense is one of the primary ones.
The reform of the penal code will allow us to support that indispensable right of every person, but in a balanced way with the rest of the legislation, respecting the constitutional precepts and the human rights framework ”.
The reform aims to be presumed as a legitimate defense, unless proven otherwise, the fact of causing harm to anyone who through violence, escalation or by any other means tries to penetrate without right, to the agent's house, that of his family, his dependencies, or those of any person who has the obligation to defend, to the place where his own or other people's property is found in respect of which the same obligation exists; or, find it in one of those places in circumstances that reveal the likelihood of an assault.
On this case, the criminal lawyer Alexandro María Tirelli, one of the most prestigious lawyers in Europe in criminal and international matters, gives us his conception at the end and this reform. Establishing that:
Any citizen should have the right to shoot while armed in self-defense against those who violate the perimeter of their house in violence and with a weapon.
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Very clear the brief on Legitimate Italian defense, thanks
- Ricardo Alberto Manices
The legitimate defense in Italy is a legal institute recognized by many laws. Already the ancient Romans recognized the right of an unjustly injured person to defend themselves through the use of force, provided that the defense was proportional to the offense.