Legitimate Defense

What is Legitime Defense?

Legitime Defense is a juridical institute of universal caracter, and that it has been recognized by all the legislations of the world, to such a point that the Pope Jean Paul II, in their Encíclica Evangelium Vitae -the Gospel of the Life -, of March of 1995, 25 it defines it clearly as «the right to the life and the obligation to preserve it».

And as for the «human rights», she adds that if it becomes great atencion to the respect to all life like it is it that of the criminal or aggressor, with more razòn it should be kept them in mind if it is of their it kills defenseless.

Let us remember that eat then we will refer to the human rights, these all are part of the inalienable right of you kill them, in their bigger part men of the forces of security that are always violated by their aggressors.

The legal alignment in our Juridical Classification, we find it from the sanction of the Argentinean Civil Code, in 1969, when in their articulate 2470 and referring to the ¨personal action¨, it prepares that the fact of the posesiòn gives the right of being proteted in the own posesiòn, and to repulse the force with the employment of an enough force, in the cases in that the aids of the justice would arrive too much afternoon, and the one that was deprived can will be to recover it of own authority without interval of time, provided that it doesn’t exceed the you limit of the own defense.

Of what is inferred that the «law to legitime defense», it is exceptional, and it is exercised when the aids of the pùblic law enforcement, they cannot arrive solicitous in help of the one attacked, to who the State that has the monopoly of the force and the justice, recognizes him that right as own and natural, since if some law prohibited it, she would become a despropousal and nobody would fulfill the same one.

In the Argentinean Penal Code, effective from 1921, the institute has been legislated of Legitime Defense, in the articulate 34, parentheses 6 and 7.

The same one settles down that not punishable are, that is to say non are subject to penal sanciòn some, whose :

make in self defense or of their rights, whenever have the following circunstances :
illegal attack ;
rational necessity of the means used to imposibility or repell it ; and
lack of enough provocaciòn on the part of which defends.

You know that these circumstances converge regarding these that rejects during the night, the scaling or fracture of the fences, walls or entrances of their house, or inhabited department, or of their dependences, whichever it is, the damage caused the aggressor.

Equally regarding these that finds a stranger inside their home in the morning or in the afteernong, but not in the naigth, whenever there is resistance.

The one that will work in the person’s defense or rights of other, whenever the circunstances of the point 1 and 2 converges of to), and in the event of having preceded enough provocaciòn on the part of the one attacked, he that it has not participated in her the third defender.

Types:

1. Legitime self defense

The right to legitime defense it begins then, in the same moment of the agresion it illegitimates in that becomes evident on the part of the aggressor, their intenciòn of attacking, typical the case of a criminal attack, contrary to right (art. 34, inc. 6, to) 1), C.P.).

It is there, when the one that decides to defend, should make it in a way «proportional», that is to say, equal, in the sense, that to the offensive power that suffers on the part of the attacker, it should oppose him a defensive, similar or equivalent power, with the capacity to neutralize or to reject the agression efficiently (art. 34, inc. 6, to), 2), C.P.).

This should be seen in the sense, that it is always proportional the means used for the defense, when this can achieve the same final result that the one that is used for the attack, but never one bigger, because in this case will be excess.

The proportionality, justness or equivalence of which are speaking, should never made a mistake, with the concept of equality, since but we would incur in the error of considering that it has acted with excess, to who uses a half different one to exercise their legitime defense, regarding which is used to attack it. For example a dagger is not similar to a revòlver, since while the first one is a ¨inappropriated weapon¨, the other one it configures a firearm, denominated ¨appropriated weapon¨, because it has been built by the man, specifically to kill.

But there am here, the cuestiòn of real importance that many times in the ignorance of which has for task the one of judging, can sin for excess, of error in the apretiation, and to emit an unjust failure, if it considers that there is not proportionality like half of defense and of attack, between the revòlver and a dagger.

The apretiation error on the part of the magistrate not you make, if the justified that the dagger or inappropriate weapon, it can achieve the same final result that the firearm or own weapon, that is to say anyone of the two means, they can produce the death, when they are used with that end, therefore they are equivalent.

In this respect it is necessary to delimit that the National Constituciòn, in their our articulate 21, it establishes that all citizen has the duty of arming in defense, of the Homeland, and of this Constitution, according to the laws that regulate it.

This norm includes non directly, that the Letter Magna North American, prepared in its Second Ammendmend : the right of the habitants to use and to carry weapons, in own defense, of its family and of its fellow men.

It can be considered that the art. 21 of the C.N., it has been regulated in our Country, from 1973, for the National Law of Weapons 20.429, and it has been applied, from aquèl then, it pacifies and evenly, without he is the one mentioned right been hindered, our save in the case of interruptions of the constitutional life.

And finally, it doesn’t should who defends rightfully, to have caused sufficiently the one that attacks it, because it inhibits it the right to legitimates defense (art. 34, inc.a), 3), C.P.).

This has been legislated, having as objective, the one of avoiding the possible simulaciòn of a state or situaciòn of legitime defense, when the one that defends has not been attacked wrongly, arbitrarily, but in a defensive answer act in turn, of who has been provoked cunning.

Nobody can avoid to be sanctioned penally, causing a damage and simulating an act of legitime defense, when the same one has provoked it, by means of a fight, for any previous case that had with the other part.

2. Legitime Privileged Defense

The three requirements that are demanded and it should credit who exercises an act of legitime defense, they won’t be required, when it kills her it has suffered the agression of ¨nigth¨ and in their housing, or in a place totally to dark, at any hour of the day, what is known with the name of ¨nigthing¨, or in the same place if make by day, whenever there is resistance on the part of the aggressor, anyone is the damage that is caused to the same one (art. 34, inc. 6, penultimate and last paragraphs, Penal Code).

And for it, this defense is privileged, since the one attacked, is in a place I become intimate, as it is it that of its house, completely unaware and in disadvantage, to expense of who acts to the watching and surreptitiously, violating its tranquility, and putting in risk its physical integrity, that of its family, and its goods.

3. Legitime Defense of thirds

In this supposition, the law, authorizes the defense of third and its goods, when they are always given the first two budgets of legitime defense, and when the third that defends have provoked its aggressor, whenever the one that defends it has not participated of the same provocation (art. 34, inc.7, Penal Code).

Since otherwise, two people, they could come to an agreement deceitfully, so that while an it provokes it, the other one can cause him a damage, to the supposed aggressor, so pretext of acting in legitime defense of the third.

4. Legitimate Putative Defense or of Good Faith

Here the three requirements are given of it legitimates it defense, but the one that exercises it, makes it in good faith, under the effects of an essential ¨error of knowledge invincible¨, since to defend efficiently, he cannot stop to ask to the one that attacks it, if he makes it to damage it, psychic -the violence understands the use of means hipnotics or narcotics, that said the art. 78 of the Penal Code – or physically, light or gravely, or with the intention of killing him.

Imagine that aim us with a firearm. Nobody would stop if he had the way to defend, and mainly with another firearm, to ask to that threatens us which are their real intentions, if the weapon is really or it is of toy, if loaded està or not, if it works or not, since in that time it could put on end to our lives.

For it, it is not punishable, the behavior of who defends rightfully of a threat with firearm, anyone is the damage that causes the aggressor, although after is that the attacker take the arms of toy or don´t function it (they play on the whole, the parentheses 6 and 1 -the one that cannot understand by mistake- of the art. 34, of the Penal Code).

The Excesses

Says the articulate 35, of the Penal Code that actuated with excess -always that they have occurred first the three requirements of legitime defense – the one that transgressed the limit imposed by the law, the authority, or the own necessity, corresponding him in such a case the established pain for the crime made by blame or imprudence that being always a smaller and more susceptible sanciòn of execution in flunk, and in conditional freedom, he never stops to be a condemnation, like in the case, for example of a homicide guilty that bears a pain of 6 months to 3 years of prisiòn.

To transgress the you limit imposed by the Law, it means to violate some of the requirements settled down by the same one, to justify the act.

It is the same case in that it consists an opposition to the command I legitimate that he has the public law enforcement when one takes charge of a situation, in the one that the matter should not participated, or at least it should not obstruct, mainly and fundamentally so that the same one is efficient more as for its defense, unless he mediates expressed autorization and its colaboration it is indispensable or at least complementary.

In third place, one can give the denominated ¨intensive excess¨ where the one that defends, exceeds a lot the razonabililty of their act, since well have been conclude, when it had been able to impede or to repel the suffering attack convincingly and it is not necessary, clearly, to continue insisting with the use of the force, since one can give warning and immediate participation to the authority, so that she goes and charge of the security is taken, like it corresponds, because now the risk that existed has disappeared for it kills her at the beginning. Such it is the case of which stops the criminal of a blow, it dismays him, it can hundcuff it, or to assure it in any other way, and to request then, the aid of the police, immediately.

In this supposition, don´t confuse the ¨excess in the legitime it properly this defense¨, with the ¨excess in the shots or in the blows¨, applied for it kills her, soon after the desproportion in the physical ¨superiority number¨, of the aggressor, or the degree of danger that the same one represents to subsist, as it has sustained it recently the jurisprudence of the Federal Capital that they don’t deserve sanction or penal reproach some.

Neither it exists today with the sanction of the Law 23.984, the new Code of Penal Procedures of the Nation, that that before was denominated the ¨extensive excess¨, that is to say in the time, being considered that only in the same act of the attack you could exercise simultaneously the defense and non after, since in the articulate 285 of this legal body, when describing the ¨flagrant¨, that any person prepares you can stop a criminal, if she has seen it perpetrate the crime -and if you the own one you kills -, in the same moment to carry out it, or immediately after, either pursuing him for if same, or with the competition of the public or of the law enforcement , or when she has found it with objects or rakes that make show off vehemently that you has made the fact.

Case of the third by standers

When in ocation and exercise the legitime defense, a person damages a third bystander, innocent, she need to keep in mind that her behavior justified , to the effects of to delimit or to establish the degree of her penal and civil responsibility, according to four situations that could be presented, in this moment.

Fortuitous Case: it is that when you make the one acts in own defense or of third, is not able to preveer the apariciòn of a third bystander in the scene of the facts, because it is an element that she appears as impossible to count as probable in the sphere of their own conscience, for that of happening this way, their behavior not susceptible of penal sanction, neither of civil santion.
Mayor force: we are here in presence of the one that works forced by an irresistible physical or psychic force, or under the threats of suffering a not well serious and imminent one (art. 34, inc. 2, P.C.), I eat for example, of who acts under the threat of a firearm. In this supposition, their acciòn are not penally, but it can be pending a civil reparation.
Guilty : Have a smaller penal santion who acted with imprudence, negligence, imperitia in their art or profession, or neglect of the regulations or of the duties to their position.
Eventual Deceit: The one that without intenciòn and will from the beginning, of producing a damage, continuous executing an act, and he doesn’t make anything to stop it, although during the itinerary of their acciòn, it is represented, as certain, probable or possible, a harmful result, regarding third bystanders, and it produces this way it, are penally responsible for the crime that makes and will be subject to the penal sanction that corresponds him for the same one, and of the civil responsibility that too fits him, for the damages and caused damages.

Today in Argentine, who that drives a car disapprehensive, as it is it the fact, of pressing the accelerator, as if it was pressing the line of the trigger of a firearm, in an urban place, with high transit density and public movement , he knows perfectly, and he can preveer in the sphere of their conscience, usually that if it takes their vehicle to a speed of 100 km per hour, when he has to brake suddenly in some intersection, the lunge with which he can collision without any doubt to the person that finds in the path peatonal, it will be mortal, and he being able to him to avoid, lowering the speed, he has not made anything to avoid it, this calls you ¨eventual deceit¨, and it corresponds him the same pain, when the crime that has made, similar to which would correspond to these acts with ¨simple deceit¨, that is to say with intention and will of producing a damage.

System of the test

In our penal classification, it governs the general principle of innocence, that is to say that always the one that accuses should prove.

Legitime defense, it is one of those cases in that the load of the test, the general principle of responsibility, is invested it conquers at the beginning general of innocence, and the same one one doesn’t show off, then who it has acted in that way, to prove that she has made this way it, crediting all the necessary ends, for beneficiary turns with the eximition of pain.

Will be relevance and important for the test, the reports that can toast in this respect, arrived the case, the Medical-legal skilful, the Gunsmith skilful, the Ballistic Expert, and the Expert Instructor Professor of Shot, among others.

Legitimate Defense and their differences

The Necessity of State: it exists when a not well smaller one is caused to avoid another imminent adult to take place to the one that is other people’s, as typically it is the act of a fireman that I miss to the fire that està turning off, to save lives should break a door, to enter and to liberate them of the fire. That is to say that in this case it not makes a crime, the damage crime, but their behavior are punishable (art. 34, inc. 3, PC).
The execution of the obligation: The one that works in execution of a duty or in the legitime exercise of their right, authority or position, being in this case that their behavior is not exceptional, but rather it is the daily obligation of the acting in its work, characteristic of its functions (art. 34, inc. 4, PC), non punishes some.
The Debt Obedience: who it acts by virtue of hierarchical subordinaciòn,, and it fulfills given a order by a superior, functional and formally, if she has not been able to analyze it, are not sanctioned in case when she is illegitime, but if are, otherwise, either for blame, if she carries out it without studying it being able to make it, or for deceit, if having analyzed it and being that she finds it illegal, in spite of it, it continues executing it, being able to refuse to make it (art. 34, inc. 5, PC).
The mayor force: it is configured when somebody suffers a physical or psychic coaction that is not able to resist, or under the effects of the threat of suffering a not well serious one imminent, and it participates unwittingly of the comition of a crime, are non subject to penal sanction some, as it is it the case, for example, of the cashier of a bank that to gun tip, he opens the safe of the same one, facilitating the robbery of the money deposited there, to save their life.

The Difference that we find in these four institutes, to those that usually made a mistakes with LEGITIME DEFENSE, it is that only in her, the one that acts making use of that right, makes it carrying out an exceptional behavior, recognized by the right, legally, according to what prepares the same one, in typical form, that is to say clearly descriptiion for the law, and not guilty, because this way legally are expressed , to defend their life and goods on time, as that of third.

We could say that while the «crime» is typically a behavior antijuridical and guilty, that is to say that the oposite to prescription for the law in intentional and voluntary form, subject to a penal sanction, the ¨legitime defense¨, is a typically juridical and not guilty act, because it fulfills what prepares the right, completely being not for it punishable, and it exempts of incurring in added difficulties, what should not made a mistake with the excesses that are feasible.

It is typical of the one that is misinformed or badinformed, to believe that who has defended rightfully, it should be sanctioned, to have him fact by means of the utilization of a firearm, with ammunition of hollow tip that are of use forbidden civilian, for the administrative law, considering that a ¨agravatting¨ constitutes it, what would configure the crime of illegal possessioon ammunition war. Wrong swims. The caràcter of municiòn of war is determined by the caliber and not for the tip type that possesses, like she has this way it settled down in form it pacifies and standardize the doctrine and the jurisprudence, as it prepares it the National Law of Weapons, and its Regulation Ordinance, when it defines them for exclution, determining wich is the weapons and ammunition of civil use, being of war all the others.

Although the utilization for defense, of the expansible munition, today in our country, still and for lack of an administrative actualization, it continues constituting unaccountably, an administrative infraction (art. 4, inc. 3, remote d), of the Ordinance 395/75, regulation of the Law 20.429, of 1973), she doesn’t configure aggravating , since only the added difficulties exist regarding those who make crimes, and not of those men of the law enforcement or the matters that act in it legitime defense, describing a behavior, typically artificial and not guilty, like we have seen previously, and all arbitrary and unjustified detention, as measure that to precaution pretext, drive to mortify them so far away of what she demands, being responsible to the judge that authorizes it, being responsible for the damage that causes, are precepted for the art. 18, in it dies, of the National Constitution.

In this respect the National Registration of Weapons, by means of Resolution nº 8261, of the 23/2/96, it has ratified that the Federal Police Argentina and their members, they are legitimate users of this ammunition that on the other hand are of free adquisition for all the legitimate users of weapons, for their utilization in shot polygons, or for the sport house (art. 4, inc.3, remote d), of the Dec. 395/75).

Now it is cheats, and it is necessary that this dispotition is translated in the actualization of the mentioned regulation ordinance, and exclude from the material of uses forbidden civilian to this munition of hollow tip, authorizing too the matters, to uses it for defense, like it is the marries of U.S., a country with a long trajectory and completed knowledge in the matter where for further security of third bystanders, it is the one that are allowed only and forbidden totally the use of the armored munition that is fundamentally to drill.

Publish for first time: Legitima Defensa Newspaper, edition Nº8, page 1. Print in Buenos Aires City, March of 1999.