CRIMINAL LAW

7th + 8th session

 Justifications
• Justifications are primary type of defenses that related to substantial circumstances of
each case.

• Justifications free accused persons from criminal liability because they prove that the
accused persons aren’t blameworthy, as their criminal acts were right or justified.

• An example is lawful defense, which excuses accused person from criminal liability.
Another example of justification causes is practicing medical acts, which free medical
professionals from being criminally liable as well.

• Generally, when accused persons meet the burden of production and persuasion they
are exonerated completely, and this means that the defense was a perfect defense, but
sometimes defenses are imperfect defenses, which only reduce the criminal liability of
the accused but he is still liable, i.e., diminished liability.

• However, a distinction has to be made between justifications and other exonerating and
mitigating factors.

a) Exonerations include causes of criminal non-liability and criminal unpunishability.

1. Criminal non-liability: is a state in which the actor would not be liable nor punishable in
spite of his act is still criminal, such as in cases of insanity and infancy.

2. Unpunishability causes: refer to cases in which an offender is exempt from any penalty
with certain requirements and conditions, however he is still liable.

An example of unpunishability causes is the exemption for briber and mediator in case
of bribe crime, an exoneration could be applied for bribers and mediators if they
voluntarily report the crime to authorities with certain requirements and conditions,
according to section 107 bis. of the PCE.

b) Mitigating factors: such as mitigating circumstances and mitigating excuses, are instances
that convince criminal courts that accused persons don’t deserve the maximum penalty
for the crime they’re convicted of.

• Mitigating factors do not completely exonerate the actor from being liable as
justifications do, nor from being punishable as justifications and exonerations do.
1. Mitigating circumstances: are facts subject to court’s discretion to use or not to use
clemency, hence they are called mitigating judicial circumstances. Therefore, mitigating
circumstances are not exclusively limited by law provisions.
It does not alter the crime description. (vi)

2. Mitigating excuses: are imposed by law. It alters the crime description. (vi)

A prominent example of such mitigating excuses is that of provoked husband who finds
his wife in an act of flagrant adultery according to section 237 of the PCE.

According to section 237 of the PCE, whoever finds his wife in an act of flagrant adultery
and kills (commits murder or BLD) her and the person who commits adultery with her at
the moment (in the act or immediately thereafter), shall be punished by incarceration
instead of penalties addressed in sections 234-236.

Lawful Defense

• Justification of lawful defense is an exception to the rule of law. Lawful defense allows
individuals to take the law into their own hands. According to the rule of law, the
government has a monopoly on the use of force.

• Use of force by individuals must be justified by law. Self-defense is a concession to

necessity and is only justified when the force is reasonable and immediately necessary for
defense.

1- Introduction to Lawful Defense:

• Although all common law jurisdictions refer to the concept of self-defense, the term, at
least in this form, is not universally used.

• Indeed, most other countries on the Continent replicate the German pattern of speaking
about “necessary defense” instead of speaking of “self-defense”.

• The French term, which is reproduced in all other Romance languages, is simple and
direct: légitime défense, or legitimate defense.

• The differences between the English concept of self-defense and the French concept of
légitime défense are deep and far-reaching.

• In domestic legal systems, self-defense is supplemented by a whole range of parallel

concepts.
• To use the terms and code sections of the U.S. Model Penal Code, self-defense is
supplemented by the defense of other persons and defense of property.

• All three of these forms of defense would be covered by the French concept of légitime
défense.

• The three Model Penal Code sections employ a total of 1,881 words to micromanage the
range of issues that are covered by the typical European codes’ provisions on legitimate
defense in a single sentence.

• For example, the German Penal Code Article 32 holds that a “defensive use of force is
legitimate when necessary to avert an imminent unlawful attack to oneself or others.”

• The attack on oneself or others includes all interests of the person: bodily security,
property, and even intangible interests such as privacy.

• How is it possible that this single sentence adequately covers the same territory of
defensive force as the 1,881 words of the Model Penal Code? The answer is simple: it is
not meant to.

• Criminal codes in the Continental tradition are not recipes for solving all possible
problems. Rather, they state general principles and leave the rest to be worked out by the
case law and the scholarly literature.

• The distinction between self-defense and légitime défense also exists in international
law, although here the confusion is even greater. The French language version of the
United Nations Charter, which is just as authoritative as the English version, uses the
phrase droit naturel de legitime défense to refer to what is termed in the English version
“the inherent right of self-defense.”

• The “inherent right” becomes a “natural right” in French; even more intriguingly, “self-
defense” becomes the more generalized concept of légitime défense.

• Islamic law scholars have used a deferent term, "defense against an aggressor", different
words referring to the same thing and right.

• In the PCE as stated in section 245, we find it appropriate to use the term of "lawful
defense". (vi)
• The word “lawful” entitles meanings included in the word "legitimate", at the same time
it includes defense for the defender's own person or property, as well as for another
one's person or property.

2- Definition of Lawful Defense:

• Lawful defense is defined by section 245 of the PCE, the 1st paragraph, which states that
“whoever commits homicide or physical assaults against an aggressor, through exercising
his right to lawful defense to protect his own person or property, or to protect another
one's person or property, shall be exempt from any penalty”.

• On the other hand, section 246 of the PCE, provides that right to lawful defense to protect
person justifies, with some exceptions, for a defendant to use necessary force to
counteract any act that constituting, under this law, a crime against the person.

Right to lawful defense to protect property justifies using necessary force to counteract
any act that constituting a crime, under any of titles II, VIII, XIII, XIV of this chapter or under
paragraph 4 of section 279.

• Accordingly, lawful defense could be defined as the lawful use of necessary and
proportional force by a defender to protect his own person or property, or to protect
another one's person or property.

3- Requirements of Lawful Defense:

Using force for lawful defense to be justifiable, certain requirements and conditions have to
be fulfilled whether in the act against which force might be used, the act of aggression, and
also in the force itself, the act of defense.

Requirements of the Act of Aggression:

1- The Act of Aggression Has to Take on an External Activity:
• For justifying self-defense, an aggression must be overt and take on a form of an external
activity.

• Thus, using force is not justifiable against malice thoughts or bad intentions and feelings.

✓ A requirement of being an external activity could be accomplished through words, if such

words imply a threat of attack or an actual show of aggression.

However, mere threatening language is not enough to support a claim for self-defense.
• However, it is not strictly requisite that the aggressing act takes on an external element
of a crime. (vi)

• It is sufficient in this regard, that the aggression would cause harm to the defendant
according to reasonable man in the same circumstances according to usual course of
events.
✓ Even if the aggressor's act represents only a preparatory act that is not turned into a
complete external element of a crime yet.

• It is justifiable to use force against a would-be aggressor who is reloading a gun intending
to shoot the defendant.

• According to the CC, it is not a justifiable as a legitimate defense to shoot a victim

standing there in between trees, as long as there are no external acts done by such
victim, and the should have no reasonable fear of being harmed.

✓ Lawful defense is justifiable against an aggression counted as a commencement of

execution, such as pointing at or lay-in-wait for a victim.

✓ The same is for acts of aggression that constitute crimes, whether intentional or non-
intentional.

• According to section 246 of the PCE, lawful defense could be used to overt crimes against
person, with some exceptions, such as:

1. Offences against life: homicide crimes such as murder and manslaughter.

2. Offences against body integrity, such as physical assaults or battery crimes.
3. Sexual offences, such as rape and harassment crimes.
4. Offences against reputation, such as libel and defamation crimes.
5. Offences against personal liberty, such as illegal detention and kidnapping crimes.

• Under section 246 of the PCE, lawful defense could be used to overt certain crimes against
property such as theft, vandalism, and arson.

2- The Act of Aggression Has to Bring a Reasonable Fear of Harm:

• The defendant must have a reasonable fear of would-being harmed. Such fear is assessed
according to the reasonable-person standard.

• Reasonableness is based on what another person of reasonable prudence would believe

under the situation and whether he or she would perceive an immediate threat of harm.
• The standard asks what an ordinary and reasonable individual would do under the same
circumstances.

➢ Thus, for instance, a defendant may have been threatened by a man holding a toy gun
and responded by assaulting or harming such man.

• If a “reasonable man” would also have believed that the toy gun was a real threat and
have responded with fear as well, the defendant’s actions will likely be considered a
justifiable self-defense.

➢ In some cases, a person may have a genuine believe of an existing threat, but that threat
turns out to have no real existence. Such cases of imaginary threats represent a case of
mistake of justification, as they are existing only in the mind of a defender.

• However, imaginary threats could be treated as justifying cause for using lawful defense
if there is a reasonable fear of harm according to the above-mentioned standard.

3- The Act of Aggression Has to Be Illegal and Unprovoked:

• In general, lawful defense is justified against any unlawful aggression, and in contrast, it
is not permitted if using force was against lawful threat or danger.

✓ Hence, if the defendant initiates an attack against another, the defendant cannot claim
self-defense. (defense against lawful defense is not lawful)

✓ This rule has two exceptions:

1. The defendant can be the initial aggressor and still raise a self-defense claim if the
attacked individual responds with excessive force under the circumstances, or
2. if the defendant withdraws from the attack and the attacked individual persists.

• For example,
1. Ali attacks Omar with his fists, and in defense Omar uses a deadly weapon. In such a
circumstance, Ali may also use deadly force to protect himself.
2. Second, if an attacker withdraws from the attack and is pursued by the intended victim,
then he or she may claim self-defense. Suppose an aggressor attacks a woman with an
intent to sexually assault her. After he grabs her, she displays a gun, and he runs. If she
followed him, intending to shoot him, then he would be privileged to use force to defend
himself.
✓ Accordingly, son has no privilege to use force against his parent, if the later exercises his
right to discipline his or her son.
✓ The same could be applied for a police officer who is legally arresting an accused person.

• It is not a requisite that a defendant has to exercise his right to lawful defense only against
intentional attacks.

✓ A defendant is entitled to use lawful defense against any illegal act, whether it was
intentional or non-intentional, or even an attack caused by an incapable person, as long
as it is still counted as an illegal threat.

✓ In the same context, a mitigated crime is still considered illegal, hence lawful defense is
a justification against it. (vi)

• A wife and her partner caught in flagrant adultery have the right to use lawful defense
against the provoked husband if he was to commit a crime against them, in spite of being
excused according to section 237 of the PCE.

4- The Act of Aggression Has to Be Imminent:

• Imminence requirement means that the defendant cannot use any degree of force in self-
defense unless the defendant is faced with an imminent attack, i.e. the attack is
immediate. An imminent aggression means that such aggression is on the verge of being
inflected.

1. In contrast with an imminent attack, is a future threat, which means a threat that might
be occurred in the future.

• It is considered a future threat, if the defendant had plenty of time to contact law
enforcement authorities to help protect his safety.

• The appropriate response to a future threat is to inform law enforcements authorities,

such as the police or the Public Prosecution Authority, PPA. Therefore, defense by using
force is not justifiable in case of future threat.

2. Another situation where imminence is lacking is when the attack has been ended, i.e., it
was occurred in the past and does not existed anymore, as the imminent threat of harm
does not exist after the assault has been reached an end.

• Lawful defense is available only while the threat is ongoing. When the defendant uses
force to remedy a previous attack, this is counted as a retaliatory act, and a lawful defense
claim is not acceptable, i.e., an act of retaliation is opposed to lawful defense.
✓ To ascertain whether aggression is already consummated or is still being inflicted, the
nature of crime has to be considered.:

1. Offences of instantaneous nature: such as physical assaults and defamation crimes, no

lawful defense could be privileged after the act is done and finished, unless there is
reasonable belief that additional aggression is about to be inflicted.
Theft is finished and turned into a previous crime at the moment at which possession of
stolen property being stable and unclaimed.

2. In repetitive offences: such as inflicting numerous blows on a person, or dispossessing

him of his goods in small amounts within short periods of time, aggression ceases as
regards blows already inflicted or goods already stolen, but there might be aggression if
there is imminent peril to commit new acts.

3. In continuing offences: such as illegally detaining a victim, aggression is considered

imminent as long as the criminal activity goes on. If such activity is terminated, whether
voluntarily or involuntarily, no defense shall be permissible against the offender.

✓ Mechanical means:
In the same context, a debating question about mechanical and computerized security
devices might be arisen.
As these security methods and facilities might work upon an intrusion causing harm or
even death to the intruder, while it has been installed long time ago, hence a requirement
of imminence might be questionable.

The answer: is relying on the moment at which a mechanical or computerized device

works and not the moment at which it was installed. These devices get in action if there
is any intrusion, i.e., imminent threat is occurred.

Requirements of the Act of Defense:

1- The Act of Defense Has to Be Necessary:
• The defendant cannot claim self-defense unless a reasonable man in the same situation
and circumstances would believe that using force is necessary to avoid injury or death.
• This is requirement is closely related to the imminence of attack.

• For example, if a defendant has a chance to recourse to public authorities, such as a

nearby police patrol, he has to do so. Otherwise, using force would not be justifiable as
being unnecessary in such situation.
• To be necessary, the act of defense has to be directed at the source of danger, not at
somebody or something else. Accordingly, a defendant has no right to claim lawful
defense if he directs the defense act at the attacker's son or wife.

➢ Fleeing:
A question might be arisen about fleeing instead of using force to avoid harm, as it might
be arguable that using force is considered unnecessary if it is convenient to a defender to
avoid harm by fleeing, what is called duty to retreat in some jurisdictions.

✓ In such regard, we could differentiate between two situations:

1. The first one: If fleeing could be counted as a coward behavior. In such case law does not
impose such attitude upon defendant. Hence, the defendant is still entitled to exercise
his right to lawful defense and using force is justifiable if the defendant chooses to do so.
2. The second: If fleeing could not be conceived as a coward conduct, as in cases of an
animal's attack or threat caused by an incapable person. In such circumstances, a
threatened person may prefer to flee instead of being harmed or causing harms.

2- The Act of Defense Has to Be Proportional:

• The amount of force used must be the minimum amount reasonably necessary to defend
against an imminent threat.

• Proportionality between attack and defense force could be measured by reasonable man
test taking in consideration other factors in both the aggressor and the defendant, such
as age, sex, body build, attitude, time, weapons, and etc.

• It is not a requisite that the defendant uses exactly the same weapon or tool used by the
attacker. However, a defendant may choose between available means to avoid or
counteract the threat.

• In terms of literal interpretation, section 245 of the PCE refers to lawful defense by using
force by committing homicide or physical assaults against the aggressor.

• However, acts of defense may include other less serious crimes such as vandalism.

• Defendant may use his right to lawful defense by omission, as if he did not stop his dog
from attacking the aggressor. (vi)
Effect of Lawful Defense
• Justifications convert a criminal act into a justifiable one. Hence, the defendant is not
criminally liable nor punishable. The same is applied to accomplices. An assistant to a
defendant would not be liable nor punishable as well.

• As a justification, lawful defense could be exercised regardless the defendant’s intent,

i.e., no certain intent, as intent to defense, is a requisite, as long as requirements of both
act of aggression and act of defense have been met, i.e., ignorance of justification has
the same effect in justifying defendant act.

➢ A defendant has the right to use lawful defense against the above-mentioned crimes 1)to
protect his own person or property, as well as 2)to protect another one’s person or
property.

• However, a delicate problem might be arisen in case of the attacked person expresses
his consent for being harmed. The question is about whether a third party is entitled to
use the right to lawful defense of such waiving attacked person in spite of his will, or not?

• The answer is focusing on the nature of right violated by aggression, whether such right
is a waivable right or not, i.e., whether the right could be waived by nature or not.

1. In case of waivable rights, such as the right to property, the above-mentioned

relinquishment makes a third party has no right to use lawful defense for the waiving
attacked person, the right holder. This is because consent justifies acts violates waivable
rights.

2. In the contrary, waiving non-waivable rights has no effect in justifying aggression, hence
a third party is still entitled to use lawful defense of the harmed right holder against his
own will.

• Prominent examples of right that could not be waived are right to life and right to body
integrity. Therefore, a third party has the right to use lawful defense against a person
commences the execution to commit murder even if the would-be victim declares his
consent of suicide.