The reform of legitimate defense was approved at the end of March. Comments on the new law have multiplied, but uncertainties remain about its concrete application. What are the behaviors attributable to a legitimate defense? What changes compared to before? What is the role of the judge? Here are the answers to the main questions.
What is self-defense
Self-defense is one of reasons for justification provided for by the penal code, i.e. a situation which permits behavior which would otherwise be punished. If you injure or kill someone, you are convicted of injury or murder; if this occurs to defend oneself in a reasonable manner, the behavior is admitted and not prosecuted.
Home defense
The general principles have remained unchanged over time, but the social alarm over thefts and robberies at home and at work has led to particular rules for "home" self-defense, ie at home and in the workplace. A first reform of 2006 established the existence of proportionality in cases of defense aimed at defending personal safety. The 2019 reform has extended the limits of home defense, providing that the person who performs an act to reject the intrusion with violence or physical threat always acts in a state of self-defense.
Why does self-defense exist?
To recognize the citizen the right to defend oneselfwhen the State cannot intervene promptly. The new law confirms the general principle but seeks to strengthen it in relation to assaults at home and at work.
When is the defense legitimate?
Those who act out of necessity are not punishable defend oneself against the present danger of an unjust offenseprovided that the defense is proportionate to the offense. In practice, if someone is attacked, he can physically defend himself but on condition that this is indispensable (due to the absence of an alternative that is not harmful to the aggressor) and within the limits of the extent of the aggression (with reference to the relationship between the threatened damage and what is inflicted on the aggressor).
The concrete cases
In general, if the attacker is running away, you can't hit him from behind. If you are attacked with a slap, you cannot fight back by shooting. If a car with no passengers in it is being stolen, you can't hurt the thief. But often the situations are difficult to frame and the judges have a wide margin of interpretation, especially for defense at home and in the workplace. The new law has tried to limit the spaces of interpretation of the judge, with reference to home defence, but the intent seems to have been achieved only in part, still leaving wide margins for judicial evaluation.
What has changed for home defense?
The 2006 law provides that the "home" defensive reaction is in any case considered proportionate if people's safety is compromised. The new discipline of 2019 introduces a novelty: to defend oneself at home and at work it is no longer necessary to be "forced" by the "need" to react against a "current danger", with the constraint of a "proportionate defense to the offense". Just that you react to a violent or threatening intrusion.
What is a violent or threatening intrusion?
The judges will decide. In any case, it must be an entry into the places of life, carried out with violent means or ways. However, it is not clear whether violence against things is sufficient or whether violence exercised or potential against people is needed. In practice, is it enough to enter by breaking a window or forcing a door? Or is it necessary for the aggressor to introduce himself with aggressive behavior towards people?
Is it true that you can shoot the thief who enters the house?
Depends. According to the previous rules, it is legitimate to use a weapon if personal safety is at stake. Per the new rules, you can shoot in all cases of violent or threatening intrusion. In theory, even if the violence only affects things and without personal safety being involved. But there are no certainties on this point. If the judges deem that a possible harm to people is still necessary, in fact it would change little compared to the previous rules.
But do you defend the domicile or the person?
It is not clear. One hypothesis is that a system similar to the American one has been introduced in Italy, which makes it possible to defend the home as such, regardless of the safety of the people. A constitutionally compliant reading could lead to the belief that, even after the new law, the reaction is legitimate only when functional to the defense of people's safety. But the question remains open and will probably reach the scrutiny of the Constitutional Court.
What if you disproportionately react to the intrusion?
If the thief or robber is shot, in the absence of the conditions of the law, one can return to the culpable excess of self-defense. That is, in a situation where the reaction goes beyond the right, not by will but by misjudgment or overreaction.
What's going on?and you exaggerate in the reaction?
Rules apply on the culpable excess of self-defense, which have been renewed, excluding the punishment in cases where the attacked has reacted in a state of serious disturbance due to an ongoing danger, to defend one's own safety and that of others in the places of life and work. Compared to the old discipline, the introduction of the reference to "serious disturbance" constitutes a factor of greater protection for the victim, extending the scope of applicability of the culpable excess of self-defense.
What is grave disturbance?
A sort of emotional upheaval, capable of altering the perception of reality, of generating oversized fears, of unleashing compulsive reactions. A momentary loss of reasonableness, to be evaluated and weighed case by case, person by person, process by process. Not a pass for an armed reaction.
Is the intervention of the judiciary always necessary?
Yes. Both for home defense cases and for those of culpable excess. The judges will be able to carry out summary investigations and proceed with a filing or they will be able to give rise to processes to ascertain the criminal responsibility of the attacked person.
Stop the refunds
The reform provides an exemption from civil liability for those who defend themselves, within the limits established by law, from violent home intrusions. The provision replicates what has already been provided for all the causes of justification, which make a fact lawful not only for criminal purposes but also for civil purposes. There are no changes compared to the previous discipline: the general principle is reaffirmed, in relation to the new configuration of home defense.
Compensations decreased for culpable excess
The new law provides that, in cases of culpable excess of home defense, an indemnity can be ordered in favor of the injured party, the amount of which is left to the judge's appreciation, taking into account the concrete episode. The provision changes the rules with the intention of better protecting the attacked person, called to pay an indemnity weighted on various factors, including the aggressor's co-responsibility. Basically, on the basis of practice on the subject, they are predictable reduced disbursements compared to the amount of ordinary compensation.
Will the reform reduce thefts and robberies?
It is possible that the reform has a deterrent effect, for fear of the aggravated risks of a home intrusion.
Contraindications?
Can increase the spread of weapons. Can increase violent events, both for the armed reaction of the attacked, even beyond the actual needs of personal defense, and for a possible increase in armed attackers, in relation to the risk of running into armed attackers.
