Causes of Justification in Criminal Law
ITEM 21 – Causes of Justification
Regulated in paragraphs 4, 5, and 7 of Article 20 of the Penal Code, justifications are special situations where an act is not unlawful because a rule authorizes or requires it. Any cause of justification presupposes an unusually permissive rule that allows the realization of the act. Prohibitive rules (mostly) generally prohibit actions that harm legal rights. However, these rules are sometimes superseded by permissive provisions that make it difficult to objectively assess the occurrence of the typical elements of a crime and remove evidence of illegality. Justifications operate by allowing, in certain cases, situations that are generally prohibited.
Sources of Justifications
Causes of justification can come from any area of law and need not be explicitly regulated by criminal law. Whether an action is justified is decided according to the entire legal system. While the sources of justifications coincide with the sources of law, the Supreme Court has long held that there are no justifications beyond those listed in the Penal Code. However, a doctrinal sector acknowledges that the root cause of justification can be found outside the Penal Code. For example, the fulfillment of duty (i.e., the legitimate exercise of a right, title, trade, etc.) is a justification under Article 20, and we often rely on rules outside the Penal Code to define it. Therefore, the sources of justifications lie in the whole legal system.
Article 20 of the Penal Code also provides for defenses (which allow the subject to remove themselves from a dangerous situation) and causes of inimputability (cases in which the liability of the subject is eliminated because they do not know what they are doing). Initially, justifications were regulated in reference to specific crimes (e.g., self-defense in relation to murder). However, for reasons of legislative economy and legal technique, codes usually address justifications in a single article that regulates all of them. These are called generic justifications and are likely to apply to any crime. Alongside these generic justifications, we sometimes find specific justifications that the Code governs for a particular crime (e.g., assisting a person without risk to oneself or others). The fact that they are in specific articles does not mean they are not subject to the same rules as other causes of justification or that they produce different effects. The only difference is their location within the Code.
ITEM 21 – Fundamentals of Justifications
The foundation of such authorization lies in two principles:
- The Overriding Interest: Rules that recognize justifications try to resolve conflicts of interest. On one side is the legally injured or endangered party; on the other, the interest served by the cause of justification. This may be an interest in upholding the law against unjust aggression (defense), avoiding a greater evil than the one caused (necessity), exercising a legally recognized right, or safeguarding the rule requiring the behavior (performance of a duty). When all the requirements of the provision providing a justification are met, the law considers the interest it represents to be of higher value than the injured interest—an overriding interest.
- Lack of Interest: Criminal laws are established to protect legal rights. When the holder of the legally protected right expresses disinterest in its defense by consenting to the injury, the conduct cannot be considered unlawful. For conduct to be justified, the legal right must be either in danger or waived. This foundation applies only to specific grounds of justification, such as the consent of the victim, which has a limited scope.
General Effects of Justifications
The existence of a justification determines that conduct is not unlawful, making it lawful. This has several consequences, which are also effects of other grounds for excluding criminal responsibility.
- Self-defense is not precluded against those acting under a justification. (One cannot claim self-defense against a police officer acting in the line of duty.)
- Anyone who participates in a justified act is exempt from criminal responsibility. The theory of accessoryship falls apart here because, to punish an accomplice, the principal must have performed a typical and unlawful act.
- Justifications determine the responsibility, if any, of the actor. To what extent is a person acting under a justification liable? They are not criminally liable because they commit a lawful act. However, there is also no civil liability, which is a response to the performance of a wrongful act causing injury to another. In this case, there can be no liability, except in cases of necessity to defend the interest of a third party. In such cases, the law expressly provides that liability falls on the person for whom the damage was caused. While acting out of necessity is lawful, the recipient of the favor assumes responsibility for repairing the damage.
- Security measures cannot be imposed on those acting under a justification. Because they commit a perfectly legal act, they are not considered dangerous individuals, and there is no basis for implementing security measures. Furthermore, it is absurd to apply a sanction to those acting according to law.