The issue of protection of their physical integrity or that of others has always posed major problems, and has involved lawyers, philosophers, theologians, the theory of self-defense dates back to Thomas Aquinas, who developed the concept through the example of self: "If a man is attacked and killed his assailant, his intention is to defend itself, although the effect of its action is to take the life " (1) . Our
Civil Code provides that "whoever is not responsible for the damage to legitimate defense of himself or others" , this is what has the ' art. 2044 cc , however, with regard to this discipline justifications, the Supreme Court held that reference is made to the rules of criminal law governing the institution (2) .
L ' art. 52, paragraph 1, cp , states: "It is not punished those who committed the act, to be forced by the need to defend a right to own or others' offense against the present danger of unfair, provided that the defense is proportionate to the offense ".
First, the threat must come from a ' human action, may also come into being as an animal or something, but only if it is identified with respect to the subject that is bound to surveillance, exonerating both can be applied in case react against the person assaulted the animal or thing, or if he echoes its action against the person who has the duty of custody, though the threat may also arise from an omission (3) .
A key element of self-defense is the offense that the danger is present , so the reaction is immediate and dell'aggredito may be the only way to protect the legal interest threatened.
the case law and the prevailing doctrine, consider that the effectiveness of self-defense is not extenuating circumstance in cases where the danger is voluntarily made by the person attacked, the extenuating circumstance, therefore, can not be applied to those who agree the challenge, the provocateur or who takes part in a brawl (4) .
The reason for this is obvious, those who decide to fight, can not be considered in the same situation who it is attacked and has the ability to invoke the aid of public authorities, therefore, the legal system can not grant protection to such conduct.
The law states that in certain situations, very exceptional, admits the possibility of applying the exonerating self-defense in cases of danger caused intentionally, or when a person runs out of the fray only corrissanti defend itself from a previous assault, or when a corrissante threatens a more serious violence than initially planned (5) .
The Criminal Code speaks of unjust offense, with this concept is meant to be caused in breach of the rules that protect the interest threatened (6) , the reaction to the attack is considered legitimate only when it is necessary, ie when it is inevitable to protect the legal right against the danger posed to be an aggressor and a possible escape, would cause more harm (to self or others), compared to the immediate reaction.
With regard to the proportionality between defense and offense, the dominant approach in teaching is what makes a comparison between conflicting goods, it must refer to a balance between good and threatened to infringe, therefore, will be effectively guaranteed only extenuating circumstance that allows the reaction of infringing goods is higher than that placed at risk by the aggression (7) .
The defense has been innovated with l. February 13, 2006, No 59 , has introduced two new ones, this amendment by the legislature, has sparked strong controversy within the scenario of the doctrine of criminal law.
The first innovation is the introduction of the 2nd comma , dell’ art. 52 c.p. , che dispone: “Nei casi previsti dall’articolo 614, primo e secondo comma, sussiste il rapporto di proporzione di cui al primo comma del presente articolo se taluno legittimamente presente in uno dei luoghi ivi indicati usa un’arma legittimamente detenuta o altro mezzo idoneo al fine di difendere:
a) la propria o l’altrui incolumità
b) i beni propri o altrui, quando non vi è desistenza e vi è pericolo d’aggressione”
La seconda innovazione riguarda l’introduzione del 3° comma , che stabilisce: “La disposizione di cui al secondo subparagraph shall also apply where the event took place in any other place where business activity is commercial, professional or business ".
First of all, consider that the two new ones have some common elements than those contained in the first, as it still is the 'current from danger, is the need to defend from offense into being the aggressor. The elements that have sparked bitter controversy in the doctrine, characterizing the changes introduced by the legislature, are two: the presumption of proportion use of a weapon as a means of defense.
This concerns the context, it is necessary that there may be elements of an offense provided for in the ' art. 614 cp ., Namely trespassing, so the standard will be applied when an intruder is introduced illegally into the home of others.
The purpose of the provision appears to allow a man who surprised an intruder in your home can use a weapon (or other suitable means) to prevent the infringement of its "own safety", although the actual situation could have taken other appropriate to protect their legal right.
The controversy stems from this Such an interpretation, according to some authors would allow a legitimate defense "extended", ie, citizens would be granted "private license to kill", so everything would have a greater aggressiveness on the part of offenders, would be seriously threatened by violence and "legal standing" placed in the hands of the "potential" victims.
It 'easy to detect that such a context, it could generate a escalation of crimes that seriously endanger the peaceful coexistence of affiliates, and as observed by some author would be more similar to the scenery of the old Wild West, compared to a company civil and democratic (8) .
To avoid tragic situations, some authors suggest that to balance this situation through a rigorous assessment of the requirement of need to defend themselves (9) , this solution seems acceptable, according to another theory, however, that interpretation would be to circumvent ratio the standard, which provides for the presumption of proportionality between defense and offense (10) . Many more problems
presents the interpretation of the part of ' art. 52, paragraph 2, cp , which allows the reaction to defend 'own property or another, when there is no withdrawal and there is danger d’aggressione” , il legislatore sembra voler garantire “licenza di uccidere” al soggetto che scopre un intruso nella propria dimora, non soltanto in cui il bene giuridico da tutelare attenga alla vita o all’integrità fisica, ma anche quando possa essere leso un diritto patrimoniale.
Questa tesi non può essere condivisibile, in quanto sarebbe in contrasto non solo con i nostri valori costituzionali che garantiscono i diritti inviolabili dell’uomo , ma tale orientamento andrebbe anche a collidere con la l’ art. 2 della Convenzione europea dei diritti dell’uomo .
L’interpretazione, che suggerisce qualche autore, and which I believe is the most reasonable extenuating circumstance is that the effectiveness can be granted only when there is an injury affecting the life ol ' physical integrity of the person assaulted, and that transcends the assets (11 ) , of \u200b\u200bcourse, that approach would also be in line with the values \u200b\u200benshrined in our Constitution and the European Convention on Human Rights.
Notes:
(1) Chiara Tripolina, The right age of technology, The case of euthanasia, Novenas, Naples, 2004, cit. pg 47
(2) P. G. Monateri, La responsabilità civile , Utet, 1998, in Trattato di diritto civile , diretto da Rodolfo Sacco, Cass. civ. 26-11-1976, n. 4487, cit. pg 183 ss.
(3) Fiandaca-Musco, Diritto penale, Parte generale, Zanichelli editore, Bologna, 2009, pg 283
(4) Fiandaca-Musco, Diritto penale, Parte generale , Zanichelli editore, Bologna, 2009, Cass. pen. 10-01-79, Cass. pen. 28-03-1973, cit. pg 285
(5) Fiandaca-Musco, Diritto penale, Parte generale , Zanichelli editore, Bologna, 2009, Cass. pen. 4-07-1980
(6) Antolisei, Manual, cited above. pg 271
(7) Fiandaca-Musco, Criminal Law, General Part , Zanichelli Editore, Bologna, 2009; CF Grosso, voice Legitimate defense, cit, pg 29 ff.; V. Antolisei, Manual, cited above. pg 271; Magliaro, Principi, cit. pg 457
(8) Pisa, Legitimate defense between Far West and Europe, in dir. Pen. and proc., 2004
(9) Cadoppi, The self-defense at home , pg 438 ff.
(10) CF Grosso, voice Legitimate Defense, pg 28 ff.
(11) Fiandaca-Musco, Criminal Law, General Part , Zanichelli Editore, Bologna, 2009, pg 296; Cadoppi, Legitimate Defence home , pg 439; Viganò, On the new self-defense, pg 216
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