AGORA International Journal of Juridical Sciences, www.juridicaljournal.univagora.

ro
ISSN 1843-570X, E-ISSN 2067-7677
No. 4 (2014), pp. 13-18

SELF DEFENSE IN THE NEW REGULATION.

Magdalena Maria Barsan

Abstract: Article aims to bring in the most important aspects of self-defense. The paper
refers to issues of comparative criminal law regarding self-defense. The second chapter of the
new Romanian Criminal Code describes those justifiable causes, certain circumstances which
eliminate the second essential trait of crime - the unjustified character. The New Criminal Code
chose to divide the causes which eliminate criminal liability in justifiable causes, those causes
which make a deed lose its illegal character and non punitive causes, which remove the third
essential trait of crime – accountability.
Key words: Romanian Criminal Code, self defence, justifiable causes, illegal.

Introduction
The second chapter of the new Romanian Criminal Code describes those justifiable
causes, certain circumstances which eliminate the second essential trait of crime - the unjustified
character. This regards in rem circumstances, as their effects extend to the participants as well.
The New Criminal Code chose to divide the causes which eliminate criminal liability in
justifiable causes, those causes which make a deed lose its illegal character and non punitive
causes, which remove the third essential trait of crime – accountability. The difference between
these two criteria is obvious. First of all, unjustified causes do not question whether the crime
was committed by the person who benefits from the justifiable cause. It comes from the will of
the person who commits the deed fully aware and responsible for his actions. Still, although the
fact exists, it is committed in certain circumstances which make room for the presumption that
the person who committed it must have had a serious legal reason, as stated by law. Thus, the
deed appears as “justified” and the incompatibility between the deed and the regulation created
by the lawmaker no longer exists. Second of all, the non punitive clauses question the freedom of
the person to act (as is the case of physical or moral constraint), the judgment (minority and
irresponsibility) or the contribution of other factors which have either affected the perpetrator’s
ability to act and think (intoxication) or have hid the existence of a state, situation, circumstance
(error). In regard to accidental circumstances, it goes without saying that the person couldn’t
have foreseen that he will commit such a deed for reasons outside of his will.
In regard to self defense, several opinions were considered, opinions expressed by
doctrine and the experience of other laws (article 15 of the Swiss Criminal Code, article 20 of the
Spanish Criminal Code, article 122-5 of the French Criminal Code); in the light of all these
regulations, the condition of grave danger generated by the attack was eliminated, as the gravity
of the danger and the actions for its removal being appreciated from a proportionality point of
view. Also, we will notice that the title used by the Romanian lawmaker, namely “justifiable
causes” is not one seen in other European states’ law, which preferred to regulate these causes
without distinctive names, as they are found in the section which regulates that certain crime.
Furthermore, we will notice that not all justifiable causes stated by the Romanian law are found
in other European states’ law and those who are found, comprise different regulations, either
more strict or more permissive in regard to what the lawmaker wished to achieve at the time of
the regulation.
 SELF DEFENSE IN THE NEW REGULATION. ELEMENTS OF COMPARED CRIMINAL LAW

Differences between the old regulation and the new Criminal Code
(article 19 of the Romanian Criminal Code and the former article 44
of the Romanian Criminal Code)
Article 19 of the new Romanian Criminal Code, which regulates self defense, as opposed
to the former article 44 of the Romanian Criminal Code, which states, in the first alignment, that
the deed stated by criminal law which is committed in self defense is justified. According to the
provisions of the second alignment, the person who acts to remove a material, direct, immediate
and unjust attack on his person, on others, on the rights of others or a general interest, acts in self
defense as long as the defense is proportional to the severity of the attack; alignment (3) states
that the person who commits the deed, under the circumstances regulated in alignment (2), in
order to prevent the wrongful, violent, devious breaking in of a person inside a house, room of
other surrounded place, during the night, is presumed to have acted in self defense. Under these
new conditions, the report between the severity of the danger generated by the attack and the
actions undertook in order to remove it will be analyzed from the perspective of proportionality
between the attack and the defense. The removal of the serious character of the danger generated
by the attack widens the area of self defense, thus creating a reason for applying the most
favorable criminal law. According to the new Romanian Criminal Code, the condition that the
attack be serious enough to endanger the person and its rights will no longer be considered;
neither will be the condition of the proportionality of the defense. The analyzed aspects will
regard only the proportionality conditions.
Alignment (2): the spaces considered by the presumption of self defense no longer
include the spaces marked by clear distinctive marks, only involving houses, rooms,
dependences and other surrounded spaces. This was as a turn back to the phrasing of article 44
second alignment of the Romanian Criminal Code, as it was before being modified by Law no
247/2005.
The area of the presumption is limited, as the conditions become more specific, requiring
the location be surrounded and connected to a domicile. From this perspective, the old law will
be the most favorable criminal law. The content of the new regulation, in regard to spaces
considered by the presumption of self defense, is identical to that of the trespassing crime (see
article 244 of the new Criminal Code).
It was also stated that the breaking in must be illegal; the statement didn’t seem to be
necessary considering that the wrongful character of the breaking in was already regulated.
Otherwise said, as long as the breaking in occurs without right and the means by which it
is accomplished will also be illegal (we are in the presence of a hypothesis of an analogy clause
with a homogenous character). As illegal and without right are synonyms, the text may seem
redundant, may even cause some difficulty in being applied; probably the lawmaker wished to
strengthen and make the existence of the analogy clause even more obvious, a hypothesis in
which there is no analogy contrary to the principle of legality. The phrasing “other such illegal
ways” replaces the phrasing “other such means”.
When listing the ways of breaking in, the one committed during night time was added; in
order to identify night time, the criteria already stated by doctrine will be applied, since they
have already proven to be quite useful in practice. Night time is the period of time when there is
darkness outside, regardless of the astronomical time of sunrise and sunset. According to the text,
it would appear that breaking in during the night would be enough, without there having to be
committed by violent, devious ways.
Another significant difference in the current regulation is that in longer regulates as self
defense the so-called justified excess of self defense regulated by article 44 third alignment of
the Romanian Criminal Code. This becomes, according to the new Romanian Criminal Code, a
cause which eliminates guilt (see article 26 of the new Romanian Criminal Code).
If in the Romanian law we can find the existence of four justifiable causes: self defense,
state of necessity, exercising a right or fulfilling an obligation, consent from the injured person,
in German law only two are regulated, as the other two are just variants of the first ones. Thus,
 M.M. Barsan
we will find self defense and state of necessity as well as the exceeding the limits of self defense
and justifiable excess, as a variant of the state of necessity1; these are all regulated in “Self
defense and the state of necessity”. Thus, article 32 of the German Criminal Code states that “the
deed regulated by criminal law but committed in self defense is not punished”. The German
lawmaker defines self defense as “that defense which is necessary for avoiding an immediate and
illegal attack against a person or a third party”. Although the regulation seems to be a general
one, we can distinguish the conditions for self defense and for the attack.
In regard to the defense, it must consist of a deed regulated by criminal law, it must be
necessary in order to avoid (and reject) an attack, and by it the defense of a person or a third
party must be accomplished. By expressly regulating the need for defense, the German lawmaker
wished to point out that it must be able to reject or avoid the attack and it also must be
proportional to the attack. As for the defense, it must be said that it should be able to protect the
person who commits it (the person under attack) or a third party; the area of things which can be
protected is much more limited than the one stated by Romanian law.
The German lawmaker expressed the idea that the attack which is rejected by committing
a deed regulated by criminal law in self defense must be immediate, illegal and directed against
the person (who acts in self defense) or a third party. As we can see, the conditions of the attack
as regulated by the German lawmaker are found in the ones regulated by the Romanian
lawmaker as well, who was more rigorous by clearly expressing it. Another difference regarding
the attack is that it is directed only against a person; the deed regulated by criminal law
committed in order to protect a right or a general interest will not be qualified as self defense. As
for exceeding the limits of self defense, this will be considered only if it is owed to the state of
confusion, fear or terror of the person who commits the criminal act, as we can see from the
regulations of article 33. This provision, which is correctly tied to self defense by the German
lawmaker, is found in Romanian law under the name if “non imputable excess”2.
The French Criminal Code doesn’t regulate the justifiable causes regulated in Romanian
law; they are described and regulated together with the regulation of the crime itself; they are
named “causes which eliminate or mitigate criminal liability”. In French law we will find self
defense, presumed self defense, state of necessity, the exercising of a right or fulfilling an
obligation3.
As for self defense, the French lawmaker states two such situations: when “the person
who commits a deed regulated by criminal law in self defense, in order to protect itself or others
from an unjust attack directed at him or at another person, except for the situation in which the
means used are disproportionate in regard to the severity of the attack” and when “the person
who, in order to reject a crime or an offence directed against a good, commits an act of defense
(thus committing a deed regulated by criminal law), except for murder, as long as that act is
necessary for the desired purpose and the means used are proportional to the severity of the
attack”.
In regard to the first situation, we can see that, in order to have self defense, it will have
to comprise several conditions: to be a deed regulated by criminal law, to be committed with the
purpose of protecting a person and to be proportional to the severity of the attack. It is worth
noticing that, in case the latest condition is not fulfilled, there will be no self defense, as the
French lawmaker does not regulate justified excess. As for the attack, it must be unjust and
directed against a person, regardless of whether that person is the one who is protecting itself or
he is protecting another person.
As for the second situation, the conditions of attack and defense are a little different in
regard to what is to be protected by the defense. Thus, the defense must comprise of a deed

1
In Romanian law, no imputable excess – the former justified excess – in case of self defense and state of necessity
are regulated in the chapter regarding the non punitive clauses.
2
This provision replaces justifiable excess from the old regulation.
3
It is worth mentioning that the legal provisions have no marginal names in the French Criminal Code; they were
used merely to east their description.
 SELF DEFENSE IN THE NEW REGULATION. ELEMENTS OF COMPARED CRIMINAL LAW

regulated by criminal law, it must be committed in order to stop a crime or an offence against a
good, it must be necessary for the desired purpose4, it must be proportional to the severity of the
attack and it must not be murder. The specific element to take into consideration is the negative
condition which is expressly regulated. In regard to the attack, the only difference from the
previously described situation is represented by the fact that attack is directed against a good.
Article 122-6 regulates presumed self defense as follows “It is presumed that the person
who committed a deed regulated by criminal law 1. in order to reject the attempt of breaking into
a living space by violence or devious means during the night; 2. in order to protect himself from
the authors of a theft or robbery5„.
The first described situation is similar to the Romanian regulations regarding the
presumed self defense, except for the fact that the French lawmaker makes no distinction
between “breaking in” and “the attempt to break in”; this first one (breaking in) must be deduced
by way of interpretation. Also, we can notice that the French lawmaker is stricter in, as opposed
to the Romanian lawmaker who provides an example listing.
The second situation is not found in Romanian law, as this is the most obvious difference
between the two laws in regard to presumed self defense.
Another law in which justifiable causes regulated by the Romanian lawmaker have a
correspondent is the Italian law; the regulations of justifiable causes don’t have a distinctive title
and are listed along with the general provisions about crimes. The Italian Criminal Code
regulates “self defense” (and, as a corollary, “the legitimate use of a weapon”), state of necessity,
exercising a right or fulfilling an obligation and the consent of the holder of the right; we can
even notice that the provisions of the Italian Criminal Code are the closest to those of the
Romanian Criminal Code.
In regard to self defense, the lawmaker states in article 52 first alignment that “the person
who committed a deed regulated by criminal law while being forced by the need to protect a
right of his own of belonging to others from the present danger of a unjust attack, as long as the
defense is proportional to the attack, will not be punished”.
As we have done in case of the previously analyzed laws, we will distinguish between the
conditions of self defense and the conditions of the attack. In order to have self defense, the
defense must be accomplished by committing a deed regulated by criminal law, to be necessary
for protecting a personal right or a right belonging to another person, to be proportional with the
attack. These conditions must all be fulfilled. Furthermore, by means of interpretation, we can
deduce that the deed committed this way must be the only available means to protect this right.
As a similarity to all other analyzed laws, we notice the condition of the proportionality between
the deed and the attack. In regard to the latter, it must be unjust, it must be directed against a
right and it must be a present danger.
Another variant of self defense is found in alignment (2)6 of the same article, the novelty
being that the person who commits the deed regulated by criminal law uses a weapon which he
owns legally or another means to produce the defense. In the second case, the attack can be
directed against his own safety of the safety of a third person, as well as personal or third party
goods. In case the attack is directed against a good there must be no desist and, as a second
condition, there must be the danger of an aggression (physical or otherwise). These regulations
can be applied in any situation, except for when the defense was made at where the person
exercising the defense practices his job, profession or business.

4
So, as a result, we can deduce that this (the deed regulated by criminal law) must be the only way to protect the
good from the attack.
5
In the French Criminal Code, theft is the equivalent of robbery from the Romanian Criminal Code.
6
In the cases regulated by article 614 alignment (1) and (2), the proportionality report exists as regulated by
alignment (1) of the present article in case a person who is legally present at a determined place uses a legally
owned weapon or another mean to produce defense in order to reject an assault:
a. own safety or the safety of a third party;
b. own or third party goods, when there is no desist and there is a threat of aggression.
 M.M. Barsan
As a novelty in regard to the limiting of liability, the Italian lawmaker regulates in article
53 “the legitimate use of a weapon”. As a result, according to the provisions of the first
alignment of the same article “the public servant who, while exercising his duties, uses a weapon
or any other means of physical constraint when he is forced to do so by the circumstances in
order to reject an act of violence or to defeat an act of resistance regarding the exercising of
authority and by this course of action he prevents crimes such as murder, shipwreck, drowning,
plane crash, train wreck, homicide, armed robbery or kidnapping is not punished”.
The person who commits the deed regulated by criminal law is a public servant in the
line of duty and his actions are meant to prevent a crime. Unlike self defense, the action which is
rejected must be one of those specifically listed by the lawmaker. Furthermore, we will se that
these regulations are applied “to any person whose assistance was requested by the public
servant”. By way of interpretation, we can deduce that the request of the public servant must be
previous or at least simultaneous with the deed, as the simple acknowledgement will not
exonerate the person from criminal liability. Finally, the third alignment states that “the law can
establish other cases in which the use of a weapon or another mean of physical constraint is
allowed”.
In regard to all these clauses, whose main effect is the removal of the criminal character
of the deed, the Italian lawmaker regulated in article 55, the culpable excess, which can be
applied in regard to any of the clauses. Thus, when “by committing a deed regulated by article 51,
52, 53 or 54 the limits imposed by the law or authority order are exceeded, the provisions
regarding the deed committed without guilt are to be applied”. As a result, the Italian Criminal
Code states that culpable excess does not remove the criminal character of the deed, but is a legal
extenuating circumstance.
In order to underline the facts described above regarding the Romanian law, we will
provide an example of judicial practice – a criminal trial solved in 2009, before the coming into
force of the new Romanian Criminal Code (Law no 286/2009).
By the indictment of Bacau County attorney at law registered under the number
710/P/2009 complaints were filed against the defendant B.M. for committing manslaughter, a
crime regulated by articles 174-175 alignment 1 letter c) of the Romanian Criminal Code by
applying article 73 letter c) of the Criminal Code. Thus, in the evening of November 19th, 2009,
while she was at her house, as a result of the fact that her husband, the victim B.S., while under
the influence of alcohol, provoked her by trying to engage in sexual intercourse with her, she hit
the victim in the head with an axe, thus causing massive bleeding, which led to the victim’s
death over night.

Conclusions

As we have seen from the previously analyzed laws, the Romanian lawmaker is the only
one who uses the concept of justifiable causes. In the French law, these are called “causes which
eliminate or extenuate criminal liability”. In German and Italian laws, these are regulated along
with the general content of the crime, without having a distinctive title.
The provisions of the German Criminal Code are much stricter as opposed to other laws,
covering a small number of situations. The French law has a middle position, as it is located
somewhere between the German and the Romanian law. Thus, the French Criminal Code
regulates three such causes (presumed self defense is a corollary of self defense); as we have
noticed, the French lawmaker thinks that the injured party’s consent is not reason to commit a
deed regulated by criminal law.
Finally, the Italian law covers the widest area of situations among the analyzed laws;
unlike the other criminal codes, in the Italian one we can find “the legitimate use of a weapon”
but also “culpable excess”, which can be applied in regard to all listed causes.

Bibliography:
 SELF DEFENSE IN THE NEW REGULATION. ELEMENTS OF COMPARED CRIMINAL LAW

− The new Romanian Criminal Code and the law for its reinforcement;
− The Criminal Procedure Code;
− Pascu, T. Dima, C. Paun, Mirela Gorunescu, V. Dobrinoiu, M. A. Hotca, I. Chis,
M. Dobrinoiu, The new commented Criminal Code General part, Second revised edition,
“Judicial Universe” Publishing House, Bucharest, 2014;
− V. Dobrinoiu, M. A. Hotca, Mirela Gorunescu, M. Dobrinoiu, I. Pascu, I. Chis, C. Paun, N.
Neagu, M. C. Sinescu, The new commented Criminal Code, Second volume, The special part,
“Judicial Universe” Publishing House, Bucharest, 2012;
− The German Criminal Code;
− The French Criminal Code;
− V.Dobrinoiu, W.Branza, Criminal Law, The General Part, “Lumina Lex” Publishing House,
Bucharest, 2003;
− The Italian Criminal Code;
− See Explanatory Memorandum on the draft Law on the Criminal Code, http://www.just.ro.