The much-touted bill on self-defense embodies more a cultural manifesto rather than a substantial amendment
At a first glance, the approval of the reform on self-defense by the Lower House of the Italian Parliament may appear as a great victory for the government. Having long been the pet subject of the Northern League, its passing wouldn’t have been possible without the backing of their allies, the Five Star Movement, among which 25 deputies abstained from voting. Although it has been presented as a landmark achievement against a judicial system often blamed for its securitiarianism in favor of felons, it might have little or no impact except in the papers, at best.
The reform on self-defence
Indeed, its amendments look pointless if not dangerous, as only three minor but controvertial adjustments have been made. First, it is now stated that proportionality between offense and defense “always” exists, provided that the assault happens at home or at work. Then, a new subsection of article 52 of the criminal code is brought in, by which self-defence is always legitimate if someone fends off a break-in carried out with violence or threat. Lastly, it is established that, if someone protect themselves from an assault in their own house, it would not represent excessive self-defense.
But what does proportionality mean? It is a principle according to which a person who is forced to defend himself or others from a crime is not punishable, as long as defense is commensurate with an offence, even if merely potential. As a consequence, the reaction must be the only viable solution to avoid harm. On the other hand, when response is excessive as compared to likely danger or the damage, a person may still be charged with excessive self-defence.
Another question may thus arise: when reaction is proportionate to offense? Not only should the circumstances be evaluated by the judge in any event, but also personal rights must always be considered. Therefore, a thief “only” stealing some jewels in a house should not be killed, as the life of a person is more important than property right. The law does not require anyone to remain powerless when there’s a threat, but it demands to have a proportional attitude. It is hard to find that balance in the eyes of a law which was very difficult to overhaul, due to the fact that Italians feel always more unsafe. However, although many people claim that proportionality is only a rule that benefits criminals, it should be pointed out its importance, since people may really take the law into their own hands without an unambiguous principle of proportionality hard to refute.
Therefore, legal experts, judges and opposition parties have given rise to strong criticism. Setting aside the resulting possible proliferation of guns like in the Old West — which is not the point this article wants to make — the reform appears to be merely verbose, as it stresses an already existing jurisdiction introduced by the previous reform of 2006. The then center-right government led by Silvio Berlusconi, indeed, introduced the presumption for which the proportionality between offense and defense always exists when dealing with intrusions at home or at the workplace.
It comes out that the sought-after reform on self-defense is, at best, useless. In fact, the amendments do not change the pivotal point of the system, according to which self-defense is considered such only when an assault comes about. Moreover, while Salvini declared during his electoral campaign that “the defenders in their own house should not be investigated or stand trial”, he unfortunately forgot a key principle of the Italian legal system, Article 112 of the Constitution, according to which prosecuting attorneys have the duty to initiate a criminal proceeding on facts that constitute crimes. It appears that our Interior minister should brush up on legal studies, before making untenable promises to Italians who are really worried about their safety.