Can we allege self-defense in Spain?
When [/ dropcap] I explained the self-defense to my students who were preparing to be sports technicians of the Andalusian Karate Federation, I always ended up with the same conclusion: Either if you are attacked or if you were attacked, in both cases you would have a problem. If they were the aggressors because they were concerned with the difficulty of proving the facts (burden of the proof) and the requirements that the law obliges in order to show anyone the right to defend themselves and if they have been attacked for the damage the could suffer. The best thing is always to avoid physical confrontation and never enter into provocation, but this is not always possible.. 🙁
On the other hand, as I will explain now, in the case of being someone who dominates martial arts, He or She will be considered as “a weapon itself” and therefore they have to demonstrate with more strength the requirements of art. 20 Penal Spanish Code (hereinafter CP). But what about the serious cases of home thefts in which the injured ends up killing someone? and when someone is found guilty of shooting a thief when he was just defending his relative against an attack in his own home.
One thing is legality and another is justice, and we want to talk about it this time.
I will try to be as simple as possible, but it is obligatory to go into the law:
The art. 20.4º CP provides that: “It is exempt from criminal liability those who act in the defense of the person or their own rights or third parties, provided that the following requirements:
First. Illegitimate aggression in case of defense of the goods, the attack on them that constitutes an offense will be considered illegitimate aggression and puts them in serious danger of imminent deterioration or loss. In case of defense of the dwelling or its dependencies, the unlawful entry into the dwelling or its facilities shall be considered illegitimate aggression.
Second. Need rational means employed to prevent or repel.
Third. Lack of sufficient provocation by the defender”.
About the aforementioned theft in housing, if you have gone to the previous link and read it, you will see the difficulties that the owner of a house in which they are stealing have to test the aforementioned requirements: That if you enter with a knife you can not shoot him (rational need of the means used), if you are already escaping you cannot shoot (if he fled he no longer needed defense and there is no imminent attack), if he shot him in the leg, etc, etc, etc.
¿What is illegitimate aggression?
For illegitimate aggression, it should include all attacks, unfair, imminent, real, direct, without a reason and unexpected, so it is understood that it must be intentional, without admitting the reckless forms (car accident …) of illegitimate aggression, which should be covered by the law: example a policeman in a protest march.
¿What is the need of self-defense?
The need for defensive action is rational when it is adequate to prevent or repel aggression. Continuing with the previous example, if the theft was scaping, the need for defense ceased to occur. It means the need for a defense that the attacked person can not resort to any means other than defending himself to avoid the aggressor’s attack and its consequences. The relationship between the aggression and the action necessary to prevent or repel it, therefore, so according to the circumstances of the act, the particular action of defense was adequate to repel or prevent the definite aggression. When one reads cases of jurisprudence like that of a girl trying to to be raped in her own home and who avoided rape by sticking a knitting needle in his aggressor´´ s leg is then when you come across the absurdity of a Tribunal´ s argumentation. I am saying so because it´´ s weird to see how the different Judges discuss whether or not there was a need for defense as a result of the place knitting needle was stuck (vital or not vital point,). If the Judges understand the girls wanted to stick on a vital point it means there is no proportionality in the defense so it lacks the Second point of art 20 CP. This seems absurd to me, but the truth is that unlike Anglo-Saxon law, which is based on the judicial precedence we (The Spanish Procedure) have complicated it too much.
¿What is the lack of Provocation?
If someone provokes you so that you defend yourself legitimately it is worth it, but if it happens if you have provoked him first. Then he will not be able to apply the legitimate defense because this requirement will be absent.
Legitimate defense in Anglo-Saxon law
Although at first glance “common sense” and justice should prevail in the application of the right to self defense, the truth is that our legal system seems too constrained to comply with the requirements of art. 20 of the CP. So it is no weird cases like the Tous case, the Jacinto Siverio case, among others leave serious doubts about whether our juridical system is better than Anglo-Saxon, which also based on the judicial precedence, gives greater flexibility of justice. ? Otherwise if someone studies self-defense in America (State of New York) you won´ t find big differences in the law itself.
From the page of the Prosecutor’s Office (Crown Prosecutor) I have drawn some conclusions that shows what has been said about self-defense the United Kingdom, I insist, that we all know by the films the principal role of judicial precedence over statutory law (art. 20 CP …):
1º.- They have a marked difference between the Legitimate defense of the people who are governed by the Common Law and that of the legitimate defense of the property that is regulated by the Criminal Damage Act 1971.
2º.- It takes someone attention this statement:
“However, it is important to ensure that all those acting reasonably and in good faith to defend themselves, their family, their property or in the prevention of crime or the apprehension of offenders are not prosecuted for such action. The CPS have published a joint leaflet with ACPO for members of the public making clear that if householders have acted honestly and instinctively and in the heat of the moment, that this will be the strongest evidence for them having acted lawfully and in self-defence. Prosecutors should refer to joint the CPS-ACPO leaflet – Householders and the Use of Force Against Intruders.”
Regardless of the reference to the specific rules that finally apply, I would like to be wrong, but I have not seen in Spain any similar statement by the prosecutor office to reassure to the honest citizens as in the sad cases mentioned above who has been forced to defend themselves and theirs.
Finally, as regards the instinctive need for defense, the analysis that the Spanish Courts do, as for example in the case of Jacinto Siverio before mentioned, seems forced:
“The jury ruled that he should not have fired inside the house” because the place was small and could impact any of those present. “They also state in their guilty verdict that Jacinto” could have used other equally effective alternatives to save his physical integrity and that of his wife avoiding death. ” In this sense, he I come back with the differences between the English and the Spanish system quoting another statement form the English website:
““If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken …” “
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