Post by account_disabled on Mar 13, 2024 22:37:28 GMT -5
The criminal lawyer and professor of Criminal Law, Víctor Muñoz Casalta points out that, in this case, the incomplete defense for legitimate defense has been applied. “The most important element is that there is illegitimate aggression. The court understands that it exists because if it does not exist, what is called an extensive excess occurs , which makes the application of self-defense impossible.”
By applying self-defense as an incomplete defense, “the court considers that the second or third of the requirements are not met ” and is inclined to think that it is a lack of proportionality DJ USA between the defensive means and that with which they threatened. While the two robbers brandished goat's legs, he defended himself with a firearm . In this case, the experts who intervened indicated that the shot had not been at point-blank range but had been fired at a certain distance and from the front. If it is understood that a disproportion of means has occurred “it would constitute an intensive excess, which allows legitimate defense to be applied as an incomplete exonerating circumstance. There is no exemption from liability, but rather the penalty will be applied one or two degrees lower .”
Muñoz warns that “what draws powerful attention is that reference is also made to insurmountable fear. Normally, insurmountable fear is applied as a mitigating circumstance when self-defense cannot be applied , so it will be very interesting to see how the sentence argues for the concurrence of both."
Insurmountable fear, moreover, does not exclude the imputation of the crime, but it does exclude criminal responsibility. Fear must be understood as an insurmountable fear. The Supreme Court uses the criterion that the average man would not have resisted it . However, the criminal lawyer explains that there have been occasions in which he has tried to claim legitimate defense and finally the defense has redirected his strategy to insurmountable fear.
This is the case of a police officer who shot two robbers once they were fleeing after attacking his home. Since the aggression had ended , we cannot speak of legitimate defense, but rather of a revenge action. However, it was accepted that the circumstances in which the actions took place resulted in insurmountable fear.
By applying self-defense as an incomplete defense, “the court considers that the second or third of the requirements are not met ” and is inclined to think that it is a lack of proportionality DJ USA between the defensive means and that with which they threatened. While the two robbers brandished goat's legs, he defended himself with a firearm . In this case, the experts who intervened indicated that the shot had not been at point-blank range but had been fired at a certain distance and from the front. If it is understood that a disproportion of means has occurred “it would constitute an intensive excess, which allows legitimate defense to be applied as an incomplete exonerating circumstance. There is no exemption from liability, but rather the penalty will be applied one or two degrees lower .”
Muñoz warns that “what draws powerful attention is that reference is also made to insurmountable fear. Normally, insurmountable fear is applied as a mitigating circumstance when self-defense cannot be applied , so it will be very interesting to see how the sentence argues for the concurrence of both."
Insurmountable fear, moreover, does not exclude the imputation of the crime, but it does exclude criminal responsibility. Fear must be understood as an insurmountable fear. The Supreme Court uses the criterion that the average man would not have resisted it . However, the criminal lawyer explains that there have been occasions in which he has tried to claim legitimate defense and finally the defense has redirected his strategy to insurmountable fear.
This is the case of a police officer who shot two robbers once they were fleeing after attacking his home. Since the aggression had ended , we cannot speak of legitimate defense, but rather of a revenge action. However, it was accepted that the circumstances in which the actions took place resulted in insurmountable fear.