18 May 2017

Self-defence Under Italian Law

Under the majority of criminal codes of civil law countries, a person exceeding the boundaries of law do not incur criminal responsibility if acting out of self-defence.

Italy did not drift away from the Romanian model of law and regulates self-defence under Article 52 of the Italian Criminal Code. According to Art.52 hence a person having committed a criminal offence in self-defence shall not be punished, when forced to defend his own or a third party’s right against immediate and unlawful danger, provided that the defence is proportionate to the danger.

The Italian Code regulates self-defence among the causes of justification to be applied in reference to crimes of attacks against a person, along with state of necessity, exercising a right or fulfilling an obligation and the consent of the holder of the right.

For self-defence to be integrated under Italian legislation and to avoid any criminal liability, the act of self-defence has to meet some precise requirements. It must:

  • consist in committing an action or deed regulated by criminal law;
  • case the act has to be necessary for protecting a personal right or a right belonging to another person;
  • the defence is to be proportional with the attack.

All three conditions must mandatorily be fulfilled. Furthermore, Italian jurisprudence and doctrine have, by means of interpretation, added one more condition relative to the fact that the deed committed must be the only available mean to protect the threatened right.

In regard to the attack, it must be noticed that for the cause of justification to exist, the attack has to be unjust, directed against a right and constitutes a present danger.

Self-defence’s regulation in the country also is complemented by the corollary of legitimate use of weapons laws.  The Italian law permits the use of guns and knives by people in homes or workplaces to protect lives or belongings.

In this regard, Article 614 of the Italian Criminal Code, which fixes the discipline of incrimination of home invasion, states that self-defence is presumed where the assault relates to home invasions. The assaulted person may in this cases legitimately use a weapon – held legally – or another appropriate means to protect himself or a third party’s safety, without having to prove the exigence of self-defending.

Self-defence will be configured as well if exercised in order to protect his own or a third party’s property or goods, even when the wrongdoer withdraws or simply there is threat of danger. In case the attack is directed against a good there must be no desist and, as a second condition, there must be the danger of an aggression (physical or otherwise).

When the assault has occurred in a different place rather than home, as work locations or any place related to the business activity of a person, the same provisions still apply.

It appears then that Italian norms for self-defence have built a presumption of self-defence for some specific kind of invasions. In the circumstances where the aggressor is committing a home or workplace invasion Italian law is more permissive for the person protecting himself.

These kind of invasions are therefore protected with particular emphasis. As a matter of fact, the defender has a right to use a fire weapon without deeming that the proportionality principle was infringed. The requirement of proportionality is requested only as regards to the fulfilment of conditions for the weapon being used by the assaulted person in his response to be owned legally, and when the person’s property is targeted, the assault shall also be directed at the person himself. Furthermore, self-defence is presumed as well in case the aggressor withdrew from the person’s home, and the latter still used the weapon.

It seems clear at this point that for the Italian legislator the act of self-defence constitutes no attack nor criminal offence. The person protecting himself act without guilt, as he finds himself forced to react to an offence and he is in need to defend a right pertaining to himself or to a third party.

Lastly, it must be noted that recently the Italian law-maker has introduced some new amendments and changes to the discipline. The latest bill approved by the Italian Parliament thus has move some more steps toward decriminalization of the use of weapons for self-defence.

The new law has indeed extended the scope of scenarios in which a person may kill another, without facing any criminal charge. The amended norms now established that defence is legitimate with any kind of weapon when performed at night, whether the violence targets people or property.

In a similar way, the reaction of someone acting under serious psychological upset or threat would be considered justified and not subject to any accusation of disproportionate defence.

Dott.sa Daniela Pacino

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