Justification in Criminal Law: A Comprehensive Analysis

Posted on Nov 6, 2024 in Law & Jurisprudence

Classification of Causes of Justification

Introduction

Recognizing the difficulty of classifying the causes of justification, Cury proposes the following categorization:

  1. Grounds based on a lack of interest (consent of the victim and presumed consent).
  2. Grounds founded on the principle of overriding interest, which can be further sub-categorized into:
    1. Those tending to the preservation of a right (self-defense and necessity).
    2. Those tending to the performance of a right (legitimate exercise of a right, authority, office or position, compliance with a duty).

1. Causes Based on the Absence of Interest

The Subject’s Consent

Consent operates under the law when a typical action occurs with the express or implied consent of the holder of the legally protected interest, provided that interest is subject to disposal. While not explicitly regulated by law, a careful interpretation of specific legal provisions, considering the character and nature of the protected interest, allows us to affirm its effectiveness.

Legal availability is key. A legal right is available, and consent is effective, if its preservation is of interest only to the holder. This should not be confused with situations where consent negates typicality, as in cases where lack of consent is part of the typical structure (e.g., rape, trespassing, violation of correspondence).

In such cases, consent is termed agreement. Consent must be free, conscious, and capable. This capability is not governed by precise general rules, but it is understood that one who has the availability of the legal right and understands the significance of the granted authority is capable of giving consent. Consent may be express or implied.

It’s crucial to distinguish individual consent, which justifies (removes illegality), from forgiveness of the victim, which only extinguishes criminal liability that already exists.

2. Causes Based on the Principle of Overriding Interest

Preservation of a Right

1) Self-Defense

A person acts in self-defense when they perform a typical action that is reasonably necessary to repel or prevent unlawful violence that is not caused by them and is directed against their person or rights, or those of a third party.

Legal Nature of Self-Defense

While once debated, it is now undisputed that self-defense is a cause of justification. It is based on the law’s inability to prevent every unlawful attack. Therefore, the law empowers individuals to protect themselves or others by assuming the defense of the interests at stake, even through the implementation of a typical action.

Requirements of Self-Defense

Self-defense is based on the following:

  1. Unlawful violence.
  2. Rational necessity of the means employed to prevent or repel it.
  3. The violence was not caused by the defender.
Unlawful Violence

The unlawful aggression must be:

  1. Real.
  2. Current or imminent.
  3. Not caused by the defender.

Unlawful violence is an unlawful action that tends to injure or impair a legally protected interest. Only humans can commit assault (defense against an animal falls under necessity). Defense against negligent or non-culpable acts (e.g., by the insane) is not justified. There is no right to defend against lawful actions (e.g., police arresting an offender).

There is no legitimate defense against actions by authorities within the scope of their specific functions. However, is self-defense justified against wrongful arrest or execution of an unjust sentence? Cury argues yes, as authority must act not only within the formal but also the material scope of its powers.

The attack must be real, not apparent (putative self-defense). If the individual defends against an imaginary or apparent aggression, it is not self-defense, but there may be a mistake of prohibition that eliminates guilt. The attack must be actual or imminent; defensive reaction to remote threats is not supported (preventive police power may apply).

Self-defense does not apply when aggression has reached its target. Defending after the legal interest has been injured or endangered becomes revenge or vigilantism, which are unauthorized. The attack must not be caused by the defender (provoking the attack).

Provocation does not exclude self-defense, but the provocation must be sufficient, meaning proportionate to the aggression. The attack need not be severe; defense against minor attacks is permissible if the reaction is reasonably necessary.

The aggression need not be typical, only unlawful. Self-defense is not limited to defending physical integrity and life; individuals are generally entitled to defend common legal interests or those belonging to the State.

The Defensive Reaction

A rationally necessary defensive reaction against unlawful aggression is justified. The rational necessity of the means employed should not be interpreted as strict instrumental balance. Rational necessity considers the entire reaction, not just the instruments used.

In special cases, using means that would ordinarily be excessive may be justified (e.g., a frail elderly person attacked with fists by a young, fit individual may resort to a firearm). Rational necessity is not mathematical; it must be judged case by case.

A necessary reaction means that, under the circumstances, the subject had no less aggressive means of successful defense. Only objective and real circumstances are considered. Altered states of mind or imaginary situations are disregarded.

If the rational necessity disappears due to imaginary situations or mood disturbances, the behavior is not justified and may constitute excess defense, which can lead to exclusion or mitigation of guilt.

Self-defense, unlike necessity, does not allow infringement of the rights of a third party. The victim need not wait until there is no other way to react or be forced to flee. Injury to third-party rights caused by the defensive reaction is not covered by self-defense. In some cases, this may be due to an error on the grounds, constituting a mistake of type. In other cases, it may be a necessity.

Classification of Self-Defense

The law distinguishes between:

  1. Self-defense (Art. 10 No. 4).
  2. Defense of family (Art. 10 No. 5).
  3. Defense of strangers (Art. 10 No. 6).
  4. Defense against robbery in an uninhabited place (Art. 10 No. 6, final clause).
Legitimate Self-Defense

Requirements:

  1. Existence of unlawful violence.
  2. Rational necessity of the means employed to prevent or repel it.
  3. Lack of sufficient provocation by the defender.
Defense of Relatives

The first two requirements are identical to self-defense. The lack of sufficient provocation relates to the defender, not the person being defended. Relatives’ provocation is irrelevant if the defender was not involved. “Relatives” includes blood relatives (direct and collateral up to the 4th degree), relatives by marriage (direct and collateral up to the 2nd degree), and spouses. It does not include partners, contradicting the amendment to Art. 390 of Law No. 20,066 on family violence.

Legitimate Defense of a Stranger

Requirements are the same as above, with one addition: the defense must not be driven by revenge, resentment, or other illegitimate motives.

Privileged Self-Defense

The causal nature is controversial. Amendments to Art. 40 of Law No. 11,625 of 1954 provided that if the three requirements of legitimate self-defense are met while repelling scaling or breaking of fences, walls, or entrances of a home, apartment, or inhabited unit during the night, or attempting to prevent robbery with violence or intimidation, the damage to the aggressor is irrelevant.

Novoa interpreted “simply” to mean a legal presumption of the circumstances of legitimate defense. Etcheberry considered it a presumption of law. Cury viewed it as a presumption of law, but only regarding the rationality of the means employed.

The 1992 amendment (Law 19,164) extends self-defense to all hypotheses of this ground of justification, not just legitimate self-defense. Its current wording clarifies that it is a legal presumption.

It expands the scope of crimes for which privileged self-defense applies (now including theft in an uninhabited place, kidnapping, abduction, rape, homicide, and qualified homicide). It maintains the presumption of not requiring proportionality regarding damage caused to the aggressor. It extends the spatial and temporal scope of the privilege, which some (Bullemore and MacKinnon) consider excessive. The long list of applicable crimes is also questioned.

2) State of Necessity

This is a situation of danger to a legal right that can only be saved by sacrificing another legal right (Soler). It is similar to self-defense in that causality operates in both, defending an endangered legal right. The difference is that necessity protects the higher-value legal interest, which is only possible by sacrificing another. Necessity is subsidiary, not primary; the subject must choose the least harmful means.

Regarding intent, both objective and subjective elements must be present. The law states that only property (including the sanctity of the home) can be sacrificed. The harm caused must be less than the harm avoided, so only higher-value legal rights can be saved.

Classes of Necessity

If the legal interests involved are of the same hierarchy, or different but the sacrificed interest is not property, it may be a state of necessity excusing guilt (collision of duties). If the interests are of different value and the lesser right involves sacrificing property, it is a state of necessity justifying the act (conflict of interests).

State of Necessity Justifying the Act

Requirements:

  1. Real or imminent danger of harm that one seeks to avoid.
  2. The threatened harm is greater than the harm caused to avoid it.
  3. No other practical and less harmful way to prevent the harm exists.
Real or Imminent Danger of Harm

This refers to any act posing imminent harm, not limited to human actions like self-defense. Harm is the danger or injury to a legal right, either destruction or damage. In our law, the threatened legal interest can only be property.

If the feared harm is not real but apparent, it is putative necessity. The solution is similar to putative self-defense: there may be a mistake of prohibition. The harm must be current or imminent. The harm must be illegitimate (no obligation to endure it).

The Harm Avoided Must Be Greater

This is a legislative criterion: the legal interests must be of different values, sacrificing the lower for the higher. To assess the value of legal interests, concrete criteria generally prevail.

Zaffaroni suggests the following criteria:

  1. Hierarchy within the legal system.
  2. Intensity of the harm to be avoided and the harm caused.
  3. Degree of approaching danger.
  4. Personal circumstances.
No Other Convenient and Less Damaging Way to Prevent Harm

Necessity is the alternative, unlike self-defense. The subject must choose the most practical and least harmful means. Regarding civil liability, the majority doctrine denies this possibility because it is a lawful act.

Jurisprudential Cases
  1. Theft by hunger: Usually denied as necessity (possibly irresistible force).
  2. Case of a good judge in France: State of necessity justifying the act.
  3. Rafael Retamal Judgment in Parral in 1948: State of necessity excusing guilt.
  4. Uruguayan rugby players in the Andes: State of necessity excusing guilt.