Who fires will always be investigated
On 6 March 2019, the reform of self-defense, governed by Article 52 of the Italian Penal Code, was approved.
The reform was publicized as an important legislative innovation, introduced to protect those who suffer the intrusion into their homes by criminals.
In particular, the idea was propagandized as through the “new self defense“, “the sacrosanct right to self-defence will be protected for those who are attacked at home, in the bar, in the restaurant”. The aim advertised by the Government was to avoid “useless” trials against those who defended themselves at home, also through the use of weapons.
In other words, we introduced in Italy the so-called castle doctrine, the doctrine of the castle, of Anglo-Saxon origin.
But is it really a reform? Is it useful, in terms of Law?
Let’s start from the analysis of the statistical data published by the Senate: in Italy from 2013 to 2016 the number of trials opened for facts qualified as ” self-defence” or “culpable excess of self-defense” counts only 2.5 cases, (two point five), out of a total of about 1,500,000 (one and a half million) criminal proceedings opened per year.
The data shows the real extent of the ” self-defence issue ” that has engaged the Government, Parliament and the media. An average of two criminal cases per year out of more than one and a half million.
A ridiculous statistic, propagated as a social problem, even included in the electoral agenda by some parties.
Further clarification: the Italian criminal system of Laws already provided for the institute of the Self-Defense, governed by the Criminal Code of 1930, reformed in 2006.
But let us come to the merit of the Reform (?), analyzing in synthesis the principal normative modifications and the practical consequences.
The Reform of Art. 52 ( self-defense) and Art. 55 ( culpable excess) of the Criminal Code provides that:
The citizen is authorized to use “a legitimately possessed weapon or other suitable means” for the defense of “his own or others’ safety”, or rather, of “his own goods or those of others”.Before the reform, the defense action, to be legitimate, required the requirement of proportionality between defense and offense. It is good to specify how this assessment was and will always remain the prerogative of the courts, (certainly not the same person who “shot”).
For example, there is a big difference between shooting a thief who has entered a 10 hectare campaign, perhaps stealing oranges from a tree, and shooting a thief who, despite an injunction to desist, continues to threaten or violate the personal safety of a person.
Well, the aim of the reform was to eliminate this difference.
Today the Law assumes that there is always and in any case a relationship of proportionality between defense and offense.
The Reform introduces a presumption of legitimate defense when the action is committed by the one who is inside his own or others’ domicile, (house or place of work), in order to reject the intrusion within the domicile. It should be noted that here the object of the action is not theft, but the mere intrusion into the home. With the consequences that follow.
A cause of non-punishability has been introduced with respect to negligente excess of self-defense (art. 55 of the Italian Criminal Code), when the action is committed in a condition of “impaired defence” or in a “state of serious disturbance” deriving from the danger.
In the case of conviction for the crime of theft in the apartment and theft with tearing, the conditional suspension of the sentence is subject to compensation for the damage.
Penalties for home invasion are increased.
Patronage to State Expenses is recognized in favour of the person who has been acquitted or acquitted for acts committed in a condition of legitimate defense or of culpable excess of legitimate defense.
The shooter will always be investigated.
The use of a weapon against a human being always requires an investigation by the Judicial Authority. This is an elementary principle of a rule of law.
To use direct language, here we intend to reiterate the need for an assessment to understand whether the facts relate to a robbery, rather than a “settlement of accounts” between people who have challenged each other, or a premeditated murder.
Investigation and prosecution are indispensable tools for ascertaining the procedural truth of what has happened. That the reform of the legitimate will avoid “useless trials against those who have only defended themselves” is mere propaganda, detached from reality.
Nobody thinks that the new discipline will allow the use of weapons indiscriminately against anyone who enters a private property.
From the point of view of substantive criminal law, in the respect of the constant principles of law affirmed by the Supreme Court, we believe that the “reform” will not actually produce any new effect with respect to the regulations previously in force.
From the point of view of substantive criminal law, in the light of the constant principles of law affirmed by the Supreme Court, we believe that the “reform” will not actually produce any new effect with respect to the regulations previously in force. In fact, if the new discipline were to be interpreted in a literal way, it would end up distorting the very institution of legitimate defense, putting it in contrast with some elementary principles of our system.
For these reasons, the Union of Italian Criminal Lawyers and the Association of National Judges have raised doubts as to the unconstitutionality of the rules introduced.
The President of the Republic, Mattarella, promulgated the Law, declaring: “Article 2 of the Law, modifying Article 55 of the Penal Code, attributes decisive importance ‘to the state of serious disturbance deriving from the situation of danger in progress’: it is clear that the new legislation presupposes, in a sense consistent with the Constitution, an objective scope of the serious disturbance and that this is effectively determined by the concrete situation in which it manifests itself”.
Unfortunately, it is regrettable to note that the requests of the whole world of jurists (academics, magistrates and lawyers) have remained unheard. As happened previously with the abolition of the statute of limitations.
Some concluding considerations: la castle doctrine.
The reform of the newly introduced Self-Defense is borrowed from the so-called Castle doctrine, the theory of the Castle, of American origin, where citizens are equated with the King of that feud called private property.
Unfortunately, the parliamentary debate and the resonance of the mass media has kept silent the consequences that brought the application of the Castle doctrine in the U.S., especially when applied in relation to that particular cause of non-punishability of the “disabled defense or the state of serious distress.
The U.S. judicial chronicles must be studied carefully.
The American jurisprudential databases are full of stories of fathers who, strengthened by their position as King of the Fief, mistaken their son for a thief, shooting only because he had returned home late from the garden, at night, so as to avoid a reprimand more.
America was moved by the case of a person who one fine morning legitimately killed a 20-year-old boy who had sought refuge on his veranda, fleeing a police raid at a party in his neighbor’s house, where alcoholic beverages were used among children under 21 years of age.
Yoshihiro Hattori, a recent Japanese student in the U.S., searched for a party venue on Halloween, but rang the bell for the wrong house. The owner, after warning him to leave, fired. He, dressed as John Travolta simply did not understand that phrase uttered in a narrow and fast American and was cold.
Andrew de Vries, a Scottish student, lost in the street, guilty of knocking on the back of a house to ask for information and, instead of the indication, receives a bullet fired from the inside.
The common element of all these cases is that the owner of the house considers himself “justified” by a subjective state of fear, (serious disturbance), which the system protects and feeds, declaring reasonable his “defensive” reaction.
The effects of castle doctrine, (as well as the even more extreme “stay your ground”), in America have produced an increase in murders and accidents of firearms, as scientifically evidenced by a study published in 2016 by the journal Epidemiologic Review.
What will happen in Italy?
To date, all that remains is to wait and put our trust in that portion of lawyers and magistrates who are attentive and prepared, entrusted with the task of interpreting the rules of the Criminal Code in accordance with the Constitutional Rights.
