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Self-defense is a fundamental concept in the field of criminal law in Spain. It is a legal concept that allows a person to defend himself in a proportionate manner against an illegitimate aggression, without incurring criminal liability.
In the words of our Supreme Court, it is "a cause of justification based on the need for self-protection, governed as such by the principle of overriding interest, without the existence of an "animus defendendi" being an obstacle to the objective nature of any cause of justification" STS 794/2003, June 3 or STS 1262/2006, December 28.
It is regulated in Article 20.4 of the Spanish Penal Code, which establishes that the act of a person who, in defense of his rights or those of another person, repels an unlawful aggression is not punishable, provided that certain requirements are met.
These requirements are:
The existence of an illegitimate aggression. Which in the words of our Supreme Court is "any creation of an imminent risk to legitimately defensible legal assets" and which will occur "not only when an act of force is carried out but also when an attitude of imminent attack is perceived or from which the immediate aggressive purpose is evident" (STS Second Chamber dated 16/10/2000), which suggests that the use of self-defense could also be accepted in cases of threats, although it will have to be studied case by case. To this effect, Article 20.4 provides that the simple improper entry into a dwelling is already considered unlawful aggression.
The rational necessity of the means used to prevent or repel the aggression. This implies the realization of a value judgment on the proportionality of the means used to prevent or repel the aggression, for which the defensive reaction executed and the one that would have been sufficient to repel the aggression must be compared.
That is to say, a court will deny the concurrence of the cause of exemption from liability in cases in which the means used is, so to speak, superior in degree to the means with which it is assaulted, provided that another less harmful means could have been used. Likewise, the exonerating circumstance cannot be applied when the defense actions are carried out when the aggression has ended.
Lack of sufficient provocation on the part of the defender. It assumes that the person claiming the defense does not have to have previously assaulted the aggressor. For this reason, in practically all cases of mutually accepted quarrels, our jurisprudence rejects the application of this defense.
When all or some of the requirements are not met or are missing, the exonerating circumstance may not be appreciated, i.e., the person who tries to invoke it will not be exempt from liability and may be convicted, although in these cases what is called "incomplete self-defense" could be applied, which operates as an extenuating circumstance.
The recent Decision of our Supreme Court 1565/2023 applies this exonerating circumstance to a man (Mr. X) who had been sentenced in a judgment issued by the Provincial Court and ratified by the TSJ to 8 years imprisonment for killing another man (Mr. Y) who had previously attacked him with a stick and was about to take out a machete he was carrying, when they met face to face. Mr. X, in order to save his life from that attack, which he foresaw to be fatal, took out a pistol he was carrying and shot Mr. Y, hitting him in the head, causing his death.
The hearing and the TSJ understood that legitimate defense was present but as a mitigating factor, and not as an exonerating circumstance, since the requirement of proportionality of the means used was missing.
What is striking in this sentence is that the SC understands that, in this case, despite the fact that the firearm has a greater injurious capacity than the machete (which, as we have said, had led to the rejection of the exonerating circumstance in previous instances) at that time Mr. X had no other alternative that could have caused less damage to Mr. Y. Y, since he was trying to avoid his own death, and as for the area of the body where he shot him, our Supreme Court says in that sentence that the so-called "combat stress" prevents the defender from selecting "with the desirable reflection and mastery the area of the body to which he projected the shot", with which the SC understands that all the requirements to exempt him from criminal liability are met and acquits him of the crime of homicide.
