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Alberto Bielsa de las Pozas

INTRODUCTION

Polish and Spanish law have their differences and similarities as both come from the same

legal culture which is the Continental law, as opposed to Common law practised in English-

speaking countries. They both derive from Roman-Germanic law, being the Polish law more

influenced by Germanic law and Spanish by Roman law. This will help in order to understand

best the concept that I will be comparing between the two countries: self defence.

SELF DEFENCE IN POLAND

Concept and regulation

This legal concept is defined in the rozdział III (exclusion of criminal liability) in article 25.1

of the Polish Criminal Code and it states that “Anyone who, out of necessary self-defence,

repels a direct illegal attack on any legally protected interest is not deemed to have committed

an offence”.

Elements of self-defence. A perfect self-defence in Poland.

This paragraph contains the elements which create a perfect self-defence and therefore, if

followed, make for a complete lack of criminal liability. These elements are listed on the

definition of the concept itself.

First, an unlawful attack is needed. This act has to be direct, unlawful, actual, real and against

any legal protected good (it can also be an omission). This means the aggression should be

close in time to the response, it must constitute an illegal act in itself, it has to exist

objectively ( the belief of the defendant that the threat is real is not enough, I will discuss

article 29 later on) and it has to be directed against a legally protected good. This includes

another person's well-being, protected by law, safety or public order. It is also manifested in
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the Criminal Code that it is not punishable by anyone who crosses the boundaries repelling

the attempt to enter any living premises, which includes self defence as legal when defending

one’s living premises and private property.

Then, we need the defence. This act’s only purpose should be to fight off the attack and it

should be motivated by it. This means that if a defence is made after provoking the attacker,

the self-defence would not be perfect. The act has to be proportionate to the aggression or the

self-defence could be deemed imperfect.

If the defendant happens to gather these requirements in his or her circumstances, its

self-defence has been perfect and no criminal liability can be applied.

Limits of self-defence. An imperfect self-defence.

If in any given situation the requirements mentioned before are not met, the self-defence is

imperfect and it would not constitute a total exclusion of criminal liability.

Even though the responsibility would not be totally extinct, in this same article it is explained

that if the defence exceeds the necessary (for example if it is disproportionate), the court may

apply an extraordinary mitigation of the penalty or issue an absolute decree (article 25.2). If

these limits are exceeded because of “fear or emotional distress, justified by the

circumstances of the attack”, the court will issue an absolute discharge (article 25.3).

It is also interesting to look at article 29 of the Polish Criminal Code, as it states that “no

offence is committed by anyone who performs a prohibited act in the justified but mistaken

conviction that there are circumstances excluding unlawfulness or guilt; if the offender’s

mistake is unjustified, the court may apply an extraordinary mitigation of the penalty”. This

further explains and examples another excession of self-defence which constitutes an

imperfect act of defence.

Self-defence regarding public officials.

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This is regulated in article 231a, where it is stated that “The legal protection provided to

public officials during or in connection with the performance of public duties extends to an

official also if an unlawful attack on his person is carried out because of his or her profession

or position”.

Conclusion

To sum up what is said in the Criminal Code, necessary self defence in Poland can be used to

protect oneself, property, social goods and order and others and it can only constitute an

offense if the defendant exceeds the limits of it by being disproportionate.

SELF DEFENCE IN SPAIN

Concept and regulation

Necessary self defence in Spain is regulated in chapter II of the Spanish Criminal Code

(Código Penal) in article 20.4. in it, it is stated that “he who acts in self defense or defending

his own rights or in defense of a third party or his rights is excluded from criminal

responsibility”.

The history of self-defence in Spain

Historically, this concept in Spain was associated with personal revenge, as a way of

protecting rights or goods which had been disturbed. Later on, a new legal trend established

the necessary self defence as a symbol of legal order and the protection of personal goods and

rights against unjustified agressions, leaving behind the concept of personal “vendetta”.

Self defence first appeared in the Penal Code in 1949 during Franco’s dictatorship, it was

later reformed and included three kinds of self defence: the personal, the one in favor of

relatives and the one in favor of strangers.

This legal concept was last amended in 2015, when the possibility of self defence against an

aggression which doesn’t constitute an offense was eliminated.

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Legal nature

The legal nature of self defence in Spain was controversial and jurists doubted between

justification and the exclusion of culpability. Nowadays, it is agreed that its legal nature is

found between the causes of justification that elude criminal responsibility when given the

appropriate circumstances.

Elements of self-defence. A perfect self-defence in Spain.

The objective and subjective circumstances to consider that an act was made in self defence

are included in article 20.4 and are mainly 5.

The first one is the need of a recent unjustified aggression against legally protected goods or

goods which can be legally protected, one can’t plead self defence against an act which was

committed years ago (it needs to be recent or actual) nor can it be plead if it is against any

good which can’t be legally protected.

The second one is that the defence needs to be rational and proportional to the aggression.

This is best illustrated if, for example, you retaliate a punch with a shot, even though you are

defending against an aggression, the defence is disproportionate.

The third requirement is a lack of incitement towards the aggressor, self defence can’t be

plead when the aggressor has been provoked to act illegally.

The last circumstance needed for the self defence to be perfect is the subjective element of

the defence itself, the legislator demands the defendant’s knowledge of the objective

requirements of self defence. If he or she were to act against the aggressor without any

defensive purpose and with harmful intent, the self-defence would not be licit, even though,

being a subjective issue it is problematic to prove otherwise.

Limits to the concept. An imperfect self-defence.

In contrast to what makes any self-defence perfect, we need to understand the opposite side:

What creates an imperfect self-defence in Spain?

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Any mistake in this concept can affect the extension of the criminal liability when the

defendant believes the situation allows him to act in any given way, without taking into

account the limits established by the criminal legislator about the proportionality of the

response. It can also directly affect the convergence of the objective requirements that create

a perfect self-defence which I mentioned above, any mistake when acting in defence of

oneself regarding those requirements established by article 20.4 create an imperfect

self-defence.

These two situations would result in the denial of this legal concept or a mitigation of the

penalty instead of a total discharge of criminal responsibility.

Self-defence regarding public officials.

This kind of self-defence is regulated in the Organic Law 2/1986, it determines that the

actions of the agents must be influenced by three principles which are congruence,

opportunity and proportionality.

The doctrine has discussed whether it is possible that self-defence can happen only when

acting as a private individual or it can be determined that it can occur when police officers are

exercising their duties, as many believe allowing the exclusion of criminal liability for

individuals but not for public officials can harm article 14 of the Spanish Constitution (which

contains the principle of equality and non-discrimination).

However, there is a need to develop legislation in the area of use of force and self-defence

whether it is also possible when the agent is exercising his or her functions.

Conclusion

The regulation of self-defence in Spain also allows the individual to protect him or herself,

any legally protected good (whether it is theirs or from others) and also social order and

social goods.
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SIMILARITIES BETWEEN BOTH COUNTRIES

The similarities are found mainly in two aspects, but I have to say that in general both

regulations are the same.

The first aspect would be the legal nature of self-defence itself, as in both countries this legal

concept is used to protect the same goods and ensure the same lawful responses to unlawful

attacks.

The second aspect would be the elements and limits of self-defence, in both legislations the

nature of the attack as well as the importance of a proportionate defence act are well

explained and settled. Also, the limits and the consequences of exceeding them are quite

similar, all of them meaning a mitigation of the penalty.

DIFFERENCES BETWEEN BOTH COUNTRIES

The differences regarding this legal concept between Poland and Spain are basically

non-existent, as both countries’ Criminal Code and law principles derive from the same legal

culture.

The only remarkable difference that I can observe is the extension of the concept in the

Criminal Code, as in Spain self-defence is thoroughly explained. This can mean that

self-defence in Poland is more subjective than in Spain and it relies more on the judge’s

criteria before each specific circumstance.Whereas in Spain it seems as if the law provides a

guideline to a perfect self-defence and there is less room for analysing the situation.

CONCLUSION

Self-defence is an important legal concept as it dictates the path an individual has to follow in

order to protect himself or any other good with another act. Its regulation ensures individual

safety and further establishes social order and protection.

Throughout this essay it is safe to say that in comparison with one another, Poland and Spain

have very similar legislation about this topic and share the same idea about legally protected
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goods. This can be influenced by the European Union but it also shows the relevance of legal

cultures.