Killing the perpetrator of a 'fake robbery' is a classic textbook example of mistaken self-defense. This paper reports and analyzes three decisions about the responsibility of a police agent who accidentally killed a young man pretending to be a robber. In the three decisions, the judges' opinions differ about the correct legal nature of the agent’s mistake as well as the legitimate criteria in assessing his mens rea. In the final part, the new Italian rule on ‘excessive self-defense’ (article 55, paragraph 2, Italian Penal Code) is briefly addressed.
A few months after the approval of Law No. 36, 26 April 2019, which has redefined the nature of defence of habitation, it is possible to easily observe the political and criminal aspects of the reform and the normative models adopted – more or less consciously – by the legislator. From the point of view of criminal law, the opinion can only be negative, due to the vagueness of some fundamental elements of the justification and of the culpable excess under Art. 55 of the Italian Criminal Code, to the presumptive construction which characterizes, in particular, Art. 52 of the Italian Criminal Code and to the overturning of certain constitutional values proposed by the new legal framework. In the background, the entire relationship between the legislator and the jurisdiction seems altered: the law expresses diffidence with respect to the procedural assessment of the justification and, therefore, it appears not to respect the principle of the separation of powers
The Law 36/2019 introduced a new provision that declares unpunishable any excess in domestic self-defence realized under severe emotional distress (art. 55/2 c.p.). The norm, part of a criticized reform of the Law of self-defence, grants – even just in “domestic places” - exculpatory effect to the impaired emotional condition frequently experienced by victims of violent assaults, similarly to other European penal codes, as the German Strafgesetzbuch. Indeed, the analysis of the non-punishability clause of § 33 StGB offers important comparative hints for the enforcement of the Italian provision, and for possible reform proposals. Moreover, this paper analyses the recent Polish reform of the Law of self-defence, that introduces as well a new non-punishability clause for excessive defensive conducts committed in “domestic places”
This paper discusses the recent proposals for a possible reform of the law on self-defence in Italy, and advocates the introduction of an excuse based on the emotional shock caused by an unlawful aggression, that should apply when the reaction exceeds the limits set by the statutory requirements of necessity and proportionality