Association for Free Research and International Cooperation

Self-defense

14.06.2018
If any individual has the right to use force to defend, this defence must not be confused with the right to revenge

Criminal responsibility assumes that the author has acted freely, consciously and without constraint. Thus, he who lacks the will and intention will not be rethought of anything. It may be surprising to know that there are justified offenses because, by deduction, the offenses are contrary to the social order, such is the case when one speaks of self-defense which is a cause of alteration of the law criminal liability. Often discussed, rarely defined, self-defense is one of the most important legal dispositions to know when dealing with issues of defense and personal protection. Criminal liability cannot arise from notes ordered by immediate necessity, from the self-defense or others against unlawful interference provided that the defense is proportional to the seriousness of the infringement. This prevents any legal action against the one who commits an act suggested as reprehensible for defending himself or defend others against any unjust act.

To consider an act of self-defense, several conditions must be met:

  • The attack must be real, it must not be a mere supposition and must not be virtual; indeed, self-defense seeks to recognize the right to everyone to do own justice.
  • The attack must be illegitimate, this supposes that if one has the right to attack, the one who is attacked also has the right to act; however, the attack must be an offense and the defendant must be able to defend himself in order to prevent the realization of the lawlessness.
  • The defense must be useful, that is to say likely to fail the attack.
  • The defense must seek to protect itself or others, to protect their property or those of others.
  • The defense must be aimed at controlling a danger, but if the danger is already accomplished, there is no danger and the one who reacts at this moment cannot invoke self-defense.
  • The defense must be commanded by the immediate necessity of defending himself or defending others, if the need is remote, there is no urgency because it is possible to avoid the attack.
  • The defense must be concomitant to the attack, that is to say that the space of time between the attack and the defense must be practically null; that is to say that whoever is attacked at a point X and who has to go to a point Y to look for any material in order to come to defend himself is no longer in a position to invoke self-defense; it also means that someone who is attacked for example at 10 am and waits a few minutes or hours or a few days to defend himself cannot in any case invoke self-defense.
  • The defense must be proportional to the attack, which means that there must not be a great difference between the means used and the result sought; he who uses his firearm, for example, to attack, may be fought with a knife, a club, or a machete. The result is the same, to kill; however, the person who punches in response to insults is not in self-defense, the defense being in no way proportional to the attack; whoever reacts to verbal threats by material acts is no longer in self-defense. In any case, proportionality is conceived in relation to the desired result and not necessarily in relation to the means used, we say for example, he would have killed you with his knife, but you killed him with your rifle. The means are not the same, but the results can be the same.

It is for one who invokes self-defense to prove that he fulfills all the conditions required. In other words, it is the person who is prosecuted for having committed a criminal offense who must prove that he was in a state of legitimate defense. As a cause of complete alteration of the criminal responsibility, self-defense is considered as wrong and not as an offense.

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