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Updated after the ruling of the TSJ of Castilla - La Mancha
The bookseller Pepe Lomas, 81, was sentenced by the Provincial Court of Ciudad Real in a controversial sentence to six years and three months in prison for the death of a man he shot twice after the man broke into his estate.
At the time, this sentence attracted the attention of the general public because it was considered that the homicide was committed in self-defense, and therefore, given the existence of this exonerating circumstance, he should have been acquitted. For this reason, many people positioned themselves in favor of Mr. Lomas and against the Court that sentenced him.
In this article I intend to explain the reasons for this sentence as well as to refer (again) to the defense of self-defense, to which I referred in a previous article.
THE DEFENSE OF SELF-DEFENSE
The exemption of legitimate self-defense or self-defense is included in our penal code in article 20.4, which states that the following are exempt from criminal liability
"Whoever acts in defense of his own or another's person or rights, provided that the following requirements are met:
First. Unlawful aggression. In case of defense of property, unlawful aggression shall be deemed to be an attack on such property that constitutes a crime and places it in serious danger of imminent deterioration or loss. In case of defense of the dwelling or its dependencies, unlawful aggression shall be deemed to be unlawful entry into the same or the same.
Second. Rational necessity of the means used to prevent or repel it.
Third. Lack of sufficient provocation on the part of the defendant. "
As we can see, the Penal Code makes very clear the requirements that must be met in order to appreciate this exonerating circumstance, since, otherwise, if any of them is missing, it cannot be applied or it will be done as an incomplete exonerating circumstance (which is an extenuating circumstance).
Similarly, the error about any of the requirements may affect the extent of the exoneration when the defendant mistakenly believes that the punishable act he suffers allows him to react in any way legitimately, without taking into account the legal limits and the proportionality of the means used. This error will be very important in the end in this case, as we shall see.
SELF-DEFENSE IN COMPARATIVE LAW
This mitigating factor, which exists in practically all legal systems, has, however, different scopes in different countries, since while in the United States the so-called "Castle Doctrine" (I suppose because of the "Castle Doctrine") is used in the United States, the "Doctina Castle" (I suppose because of the "Castle Doctrine") is used in the United States.my home is my castle") allows the use of lethal force against someone who enters your home illegally (i.e., to defend the "castle" you can use any means, no matter its scope, even to the death of the aggressor, resulting in impunity for the defender), in other countries, such as ours, the proportionality of the means used and the result produced is taken into account.
THE PEPE LOMAS CASE
THE PROVEN FACTS IN THE JUDGMENT
In this case, Mr. Lomas, who lived in a practically invulnerable house, since all the windows were boarded up for fear of aggressions (since he had already suffered several robberies in the past) - and therefore only had access to it through the main door - woke up when he was sleeping and after breakfast, took his flashlight and went for a walk to see the irrigation system of his property.
On his way out, he noticed that the door curtain had a knot in it, which he had not put in, and he went to the door of the shed and noticed that the irrigation control box was smashed.
In view of this, and given that the previous evening he had surprised a stranger inside his property, he returned to the bedroom from where he took the shotgun with two parallel smoothbore barrels, which was loaded with two semi-metallic cartridges of the same caliber, and with it he left the house in the direction of the corral on the outside of the property.
From the moment he left the house, and about 15 meters away, José Lomas realized that in the vicinity of the tool room there was a person who turned out to be the deceased, with a criminal and police record, who was carrying a chainsaw in his hands with the intention of stealing it, which he had previously taken from inside the tool room.
Immediately, the bookseller went directly towards the intruder, pointing the shotgun towards him at all times, and, when he was at a distance of between 5 and 10 meters from him, without directly intending that result, but representing as probable or possible that he could end his life, accepting this beforehand, and in spite of the fact that the victim, upon seeing the shotgun aimed at him, crouched down without wielding the chainsaw he was carrying, the accused fired a first shot from the front that hit the victim in the anterior face of the thorax at the height of his left shoulder, causing wounds.
Then, walking towards the intruder, he fired a second shot from behind, which hit the back of the thorax causing wounds. According to forensic reports, the first two shots caused fatal wounds, and the intruder died immediately as a result of them.
After these two shots, the bookseller returned to his room where he loaded his shotgun again with two more cartridges, went to the outside of the house and fired a third shot, with no record of the result.
After shooting, Lomas first called the Guardia Civil, and at the latter's indication, the National Police, to whom he communicated the events so that they could arrive on the scene, according to the sentence, which also states that he always acted in a cooperative manner with the authorities and that he showed his collaboration at all times.
Similarly and according to the sentence, José Lomas suffers from a delusional disorder and a mixed personality disorder (schizo-paranoid), former paranoia, which does not prevent him from knowing the nature and scope of his acts, nor does it prevent him from distinguishing between right and wrong, especially in facts of evident and primary morality.
The Magistrate-President of the Jury Court sentenced José Lomas to 6 years and 3 months imprisonment as the author of the crime of manslaughter with intent with the concurrence of the incomplete exoneration of psychic alteration and the simple mitigating circumstance of confession.
WHY WAS THE DEFENSE OF SELF-DEFENSE NOT CONSIDERED IN THIS CASE BY THE JURY COURT?
In Spanish law, as we have seen, not just any means can be used to defend against an attack, but it must be proportionate and suitable to repel the aggression.
In this case, the judgment took into account several issues to see if there was a legitimate defense:
- It was assumed that Mr. Lomas lived in a sort of "bunker" with all the windows apparently boarded up, with the result that the only access to the house was through the main door.
- Secondly, when questioned by the prosecutor, Mr. Lomas stated that with the shots fired, he intended to defend his property and not his life, this is not trivial as we will see below.
- It was also taken into account that despite the fact that the person against whom the convicted person shot was carrying a chainsaw, it was turned off.
Having said this, and putting all this in line with our penal code and with the judgments that develop it, it seemed clear that the requirements for the appreciation of the exonerating circumstance to which we are referring were not met.
First, because the legal assets at stake in these events were different, since while Mr. Lomas said that what he intended to do was to defend his property, this defense was done by violating the legal asset of the victim's life, so that, despite trying to protect his property, a much more serious harm was caused than the one that was intended to be avoided. There was no proportionality in the means, and even more so when, as has been said in the proven facts, it is stated that after the first two shots (which were already fatal) the condemned entered the house, reloaded the shotgun, and went out again, firing at least one more shot, and made no mention that the deceased had tried to attack him with the chainsaw (turned off).
Second, because in this case Mr. Lomas had other options to defend his property that were not as serious as taking the thief's life. He could have stood at the door of his home to defend the only entrance to it and called the police, or fired a warning shot.
For this reason, the Court of the Jury understood that the requirements to acquit Mr. Lomas were not met, since the defense of self-defense could not be considered either complete or incomplete.
UPDATE: FOLLOWING THE FILING OF AN APPEAL AGAINST THE SENTENCE, THE COURT OF THE TSJ OF CASTILLA -LA MANCHA UNDERSTANDS THAT THE ATTENUATING CIRCUMSTANCE OF LEGITIMATE DEFENSE IS PRESENT.
Last October 2024 and after the filing of an appeal by the defense of Mr. Lomas, the Chamber of the Superior Court of Justice of Castilla La Mancha reduced the sentence from 6 years and 3 months to only 9 months of imprisonment on the grounds that there was an "overdue error" in self-defense, (putative self-defense due to an overdue error) and for this reason it does not consider that the same would operate as an exonerating circumstance (which would have led to acquittal) but that the same would be considered a mitigating factor, which together with the mitigating factors of mental disorder and confession already recognized by the jury, would allow the sentence to be reduced to 9 months and four days.
Putative self-defense occurs when a person reasonably, but erroneously, believes that he is being subjected to an illegitimate aggression, whether actual or imminent, and, acts to defend himself; however, such aggression does not actually exist. And so the ruling of the TSJ, which rectifies that of the Provincial Court (Jury Court) and points out that, although the previous criminal situation justified a defensive reaction, Mr. Lomas committed a misperception of the magnitude of the threat. In the court's view, such an error could have been avoided with greater diligence, for example, by firing warning shots instead of firing directly at the intruder's body.
The Chamber of the TSJ starts from the proven facts declared by the jury: that the assailant had in his hands the chainsaw which, although turned off, is a potentially dangerous instrument; that the events occurred in an isolated place and far from any kind of help; and that the shelter inside the house was not very safe, taking into account that the intruder had already exceeded the external protection measures of the property; and also the dangerousness of the assailant, who had a police and criminal record and had just been released from prison.
In this way, it is possible to apply putative self-defense due to an overdue error, which allows attenuating the criminal liability. The sentence points out that from the response given by Lomas, by taking a shotgun and firing the shots, after the attack he was suffering against his property and home (which also constituted a potential threat against property of a personal nature) the conduct of self-defense can be inferred, but in any case based on an overdue error, that is, in the words of the TSJ that "...". the alternative of firing two shots with such a dangerous firearm at close range in the direction of vital areas of the intruder's body in order to repel an imaginary aggression to his person is evidenced as the result of an error that could have been avoided by using greater diligence, since those alternatives that the Chamber points out in the exposed situation would have allowed him allowed him to determine with greater certainty if in fact the personal aggression was real and imminent or on the contrary it was an aggression to his home and property that is clearly disproportionate to protect according to our classic and well known doctrine on self-defense through acts harmful to the life and personal integrity of the attackers of these goods, especially if, as in this case, lethal firearms are used at close range to repel them."
