How is self-defense currently regulated in our legal system?
Self-defense is an institution provided for in most legal systems in the world. In our country, it is included in the general part of our Penal Code and consists of an illegal action in which the person carrying out the action acts as a consequence or response to an unjustified aggression. Then, the action is not punishable and acts as a cause of justification, thus excluding the illegality of typical, that is, legally licit, conduct.
However, not every defensive action constitutes legitimate defense. For this to be viable, certain assumptions must be met: 1) it must be a response to illegitimate aggression, 2) the means used to prevent or repel it must be rational and 3) there must be a lack of sufficient provocation on the part of whoever He is defending himself.
It is understood that these circumstances apply to anyone who, during the night, refuses to climb or break the fences, walls or entrances of his house, or inhabited apartment or its premises, regardless of the damage caused to the aggressor.
Likewise, regarding those who find a stranger inside their home, whenever there is resistance.
Professor Soler has defined it as the “necessary reaction against an unjust, current and unprovoked aggression”.
Specifically, it is provided for in article 34, paragraph 6 of the Argentine Penal Code.
What is the reform that you want to implement on this issue about?
Section III of the bill called “omnibus” would modify the aforementioned article that currently regulates self-defense, expanding the circumstances that would include self-defense.
The reform adds the explicit possibility of defending yourself not only in your home, but also when someone enters your workplace.
It enables legitimate defense not only in cases of resistance by the person who entered the property, but even when there are “signs that could lead to the assumption of imminent aggression.”
And it incorporates a new cause when a difference in age, physical build, experience in a fight or the number of aggressors could reasonably make the person defending himself fear harm to his physical or sexual integrity. Also included in this paragraph will be anyone who defends himself against someone who brandishes a false weapon or someone who attacks with a weapon while fleeing the scene.
What consequences would this reform entail?
The assumptions explained regarding the legitimate defense currently provided for (and not yet with the reform of the omnibus law), being so generic, left a wide margin in the casuistry for its interpretation and application to the specific case, causing several hermeneutical inconveniences to the case. moment to resolve the procedural situation of who, ultimately, is the victim of a criminal act.
The reform increases this margin of interpretative discretion, which would cause more problems than the norm that is to be reformed or expanded.
It should be much clearer and more precise, leaving no room for interpretive error as happens in court practice.
It is important to make it clear that the cause for justification of “fulfillment of a duty” (art. 34 paragraph 4 of the Penal Code – current wording: “Whoever acts in compliance with a duty or in the legitimate exercise of his right, authority or position) is a different cause of justification than the “legitimate defense” (art. 34, paragraph 6 of the Penal Code). Therefore, these institutes should not be mixed or confused, so that ordinary people do not make future mistakes.
On this point, it is necessary to make it clear that we want to reform or expand the justification of “fulfillment of a duty” (article 34, paragraph 4), providing that: “Whoever acts in compliance with a duty or in the exercise of his right, authority or position; In which case, the proportionality of the means used must always be interpreted in favor of whoever acts in compliance with his duty or in the legitimate exercise of his right, authority or position. Therefore, the person who flees and is shot by security forces personnel has nothing to do with the aforementioned regulations. It could be understood, in the best of cases, as an excess of self-defense and not atypical behavior.
Having made this clarification, I understand that it is a reform that must be treated in depth, since its scope is extremely delicate, and not lightly as was done on other occasions in criminal matters.
You may also like
by CEDOC
