When is self-defense justified? - Sagué Abogados penalistas
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When is self-defense justified?

When is self-defense justified?

We are faced with a situation in which, in order to defend ourselves, we have had no alternative but to injure the aggressor, and now the aggressor has denounced us for the injuries we have caused him. Will our harmful conduct go unpunished? In what cases will we be convicted of such injuries?

Self-defense is an exonerating cause of criminal liability required to prevent or repel any unjust aggression against one’s own property or that of a third party. In other words, self-defense means that conduct that might appear criminal from the outset may be justified by the need for self-protection and, therefore, not be subject to criminal conviction.

Depending on the circumstances, it may act as a complete, incomplete or extenuating circumstance. The consequence of the application of the complete defense of self-defense would be the acquittal of the defendant.

Article 20.4 of the Penal Code establishes that those who act in defense of the person or rights of themselves or others are exempt from criminal liability, provided that the following requirements are met:

1) Illegitimate aggression. In the case of defense of property, unlawful aggression shall be considered an attack on such property that constitutes a crime and places it 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 dependencies shall be considered unlawful aggression. It is considered illegitimate aggression to differentiate it from other types of action such as that exercised by the forces of law and order, or for example for the entry into a home by court order.

2) Rational necessity of the means used to prevent or repel it. The need for defense is the essential requirement to apply this defense.

3) Lack of sufficient provocation on the part of the defender. This assumption implies that the person exercising self-defense must not have provoked the aggressor. In other words, the person’s mood must always be defensive, based on the need for self-protection.

In addition, the doctrine considers that it is necessary for the defendant to act with the sole intention of defending himself. If the defender acted against the aggressor without intent to defend himself and with the intent to injure, it would not be self-defense.

In short, we can affirm that self-defense is applicable when we find ourselves in a situation in which we have had no choice but to use what we have at hand to defend ourselves, injuring the person who started the aggression.

Thus, for example, the use of a knife would be justified if the aggression took place in the kitchen and precisely what we find more within our reach is a knife, however, it would be more difficult to justify the use of a knife if the aggression took place in the street, where it is not common to find knives within reach of citizens.

Likewise, it is very relevant to point out that, as our Jurisprudence considers, in the hypothetical case that we could somehow escape from the place, our injurious conduct would no longer be justified, since we must always use the least harmful way to defend ourselves .

In the same sense, any action that exceeds the limits of the defense would not be justified either, i.e., if for example we were able to immobilize the aggressor and we were no longer in danger, any harmful action that would go beyond this immobilization would no longer be covered by self-defense.

Finally, it is important to bear in mind thatself-defense is not automaticallyrecognized by the Courts. In order to achieve its application, the defense attorney or the representative of the Public Prosecutor’s Office must request its application at the appropriate procedural moment.