Justifications in Criminal Law: Self-Defense, Necessity, Duty
Justifications in Criminal Law
Article 20 (4, 5, 7) of the Criminal Code (CP) addresses justifications. Justifications are special situations in which an unlawful act is committed, but there is no rule that allows or requires it. For example, killing in self-defense is allowed. These are included in Section 20 (4, 5, 7), although that provision, in other sections, also lists defenses and causes of insanity. We clarify that justifications eliminate illegality. Causes of criminal responsibility eliminate guilt, and causes of exoneration also eliminate guilt.
Before continuing, let’s add two types of justifications:
- Generic Causes of Justification: Applicable to any crime.
- Specific Causes of Justification: Regulated in a particular crime and take effect only for that offense.
Basis of the Causes of Justification
These are based on two principles:
- Preponderant Interest: The interest in enforcing the law against unjust aggression (self-defense). When all the conditions required by the rule providing a justification are met, the law considers that the interest in this case is worth more than the interest injured; therefore, it is an overriding interest.
- Lack of Interest: If the holder of the legal right expresses disinterest in the good or law, consenting to the injury, the conduct cannot be considered unlawful. To justify the conduct, it is necessary for the legal right that is endangered to be available or waived.
Nature of the Cause of Justification
There is doubt whether there is an objective or subjective nature. There are four solutions:
- One doctrinal sector thinks that in any case, a subjective element is not required because the objective elements are enough to justify the behavior fully.
- Others argue that a subjective element of the unjust act is required and is also essential, so without its presence, the behavior would never be justified. Those who consider that the subject has performed the acts of execution of the crime but, for reasons beyond their control, has not consummated it, then the penalty would be for attempt.
- Another part of the doctrine believes that this subjective element is required but is not essential.
The Spanish Criminal Code considers the subjective element is not essential.
General Effects of All Causes of Justification
We can distinguish four effects:
- Self-defense cannot be used against acts covered by a justification.
- Those who participate in a justified act are also exempt from criminal liability.
- They do not answer for criminal wrongdoing, but civil liability should not be required.
- A security measure cannot be imposed on acts covered by a justification.
Error in the Cause of Justification
When the subject mistakenly thinks they are acting rightly, it is called a putative justification, and the mistake is punished, as enshrined in Article 14 of the Criminal Code. In these cases, the formation of the factual situation by the subject has to be false. It is an error in the formation of the will, called by a majority of the doctrine an error of prohibition since the subject mistakenly believes that there is justification in acting.
Justification Causes in the Criminal Code
Self-Defense
Exempts from criminal responsibility against unlawful violence against a person or their rights. It is contained in Article 20.4 of the Criminal Code and requires three conditions:
- An unlawful attack.
- A need for defense.
- The attack must not have been provoked.
- Legally protected personal rights.
We must distinguish between:
- Extensive Excess: No action is required. It is a mistake of the subject, a putative justification.
- Intensive Excess: An overuse of resources, irrational use of means.
State of Necessity
Exempts from criminal liability in safeguard actions, self-made, in a situation of acute danger for one or more interests that can only be avoided by injuring another or other interests. Necessity contains three requirements:
- The harm caused is not greater than that which is avoided.
- The situation of need must not have been caused intentionally.
- The person in need is not obliged, by their office or position, to sacrifice themselves.
It also requires the presence of a real and present danger, the production of appreciable harm to oneself or others. The action has to be adequate or suitable to constitute the least harmful. It is needed in any case, by weighing the various competing interests. The doctrine considers it a justification when the harm caused is less than that avoided, and a cause of exoneration if the harm caused is equivalent.
Performance of Duty and Exercise of a Legal Right or Position
This is collected in Article 20.7, and justification has four requirements:
- The perpetrator is a public official authorized to use violent means in the exercise of the duties of their office.
- That particular line of duty requires the use of violence.
- The violence used is as low as possible for the intended purpose, i.e., the least dangerous and least harmful way.
- The force used is proportionate to the seriousness of the situation giving rise to the intervention.
In fulfilling a duty, as a justification, we quote the expression “due obedience,” which refers to cases of exemption from responsibility for compliance with an order of illegal content. It requires the existence of a hierarchical relationship to be understood that emanated from a higher authority. Both case law and doctrine agree it is part of the defense of fulfillment of duty and give it the nature of justification.
Consent of the Liable Subject
It is not intended as a justification and has a double virtuality:
- Cause of Atypicality: The legal right is available and is incorporated as an element of type.
- Cause of Justification: A budget agreement. On the one hand, cases in which it is legally available; on the other hand, injuries that affect life, this consent has a relative effect.
The consent of the victim will operate as a cause of atypicality or as a justification.