The Supreme Court (TS) has acquitted of a crime of homicide a man who shot another man who was chasing him armed with a stick, an ax and a machete and “aggressive attitude” for “having invaded his lands”, considering that he acted in legitimate defense.
However, he maintains the conviction for illegal possession of weapons, and orders his “immediate release”.
The events date back to March 10, 2020, when the now acquitted, then 65 years old, and his neighbor and friend Fernando, 77, were leaving to take care of the latter’s garden. Along the way, they caught “some wild asparagus in a neighboring olive grove.” Then, a third man, 47, the owner of a neighboring plot who had “some differences” with the owner of the orchard over the use of water, saw them from the other bank of a nearby stream and addressed them.
According to the account of proven facts, “he jumped across the riverbed to where they were, carrying a large wooden stick in his hand, as well as an ax and a machete in its sheath that he had attached to his belt,” began a argument with the two friends for “having invaded their lands”. “In fractions of a second,” he faced the 77-year-old man and pushed him to the ground, leaving him “stunned.”
Faced with this situation, the convicted man fled but the 47-year-old man pursued him “wielding the wooden stick in an aggressive attitude.” At one point, the defendant stopped on an esplanade. The other caught up with him, dropped the stick, pulled out the ax and tried to pull out the machete as well. The acquitted man, “fearing for his life or being seriously injured,” “pulled out a pistol that he usually carried with him” and shot his pursuer in the head, killing him “instantaneously.”
For these facts, the Provincial Court of Granada sentenced the 65-year-old man to 8 years and 6 months in prison for homicide and illegal possession of weapons, appreciating for the first offense an exemption circumstance of legitimate defense, but not in its entirety, when estimating that “the means that the defendant used for his defense was disproportionate in relation to the unlawful aggression of which he was the victim.”
“He was able to use the gun in a number of other less damaging ways than shooting to kill: from drawing the gun for warning display, to firing an intimidating shot into the air, to opening fire on other less vital parts of the victim’s body than the head”, details the original sentence.
The Superior Court of Justice of Andalusia confirmed this ruling but it was appealed again by the defendant before the Supreme Court, asking the high court to consider the case as one of legitimate defense and to acquit him.
The Supreme Court agrees with him and makes it clear that the analysis “must start from the legitimate right to self-defense or that of third parties, in the event of an unlawful aggression,” leaving aside “an ‘ex post’ perspective that takes into account exclusively the damage actually produced and the full range of defensive possibilities conceivable from the coldness and serenity of mind of those who do not face any risk”.
In fact, it stresses that, “ordinarily, those who are unlawfully attacked will not have a panoply of tools within their reach from which to choose the one most similar to the one the aggressor uses; nor, also commonly, the necessary time to ponder the qualities of one and the other until opting for the one finally chosen”.
For this reason, the Supreme Court indicates that “the specific circumstances of the attack must be considered, (among them, very prominently, the entity of the threatened legal right), and of the defensive response, in terms of possibility and effectiveness, at the moment in which that both occurred”.
For the Supreme Court, “when the legal right being defended turns out to be, precisely, one’s own life (or physical integrity in a strong sense), it is evident that the legal system cannot impose on those who are unlawfully attacked in those terms to renounce to effective defense, even though this, in turn, seriously compromises the same legal rights”.
Consequently, it explains that, although “there is no doubt” that “a short firearm, like the one finally used by the defendant, has a greater damaging capacity than a knife”, that “mere comparison between the different weapons in competition ” is not “as simple as it might seem at first sight”. And this, he exposes, because “a stabbing weapon, at a short distance from the victim (…) involves a serious risk to life if the person who carries it is determined to use it in the attack.”
The high court understands that the convicted person, who could not expect “any kind of immediate protection or support”, found himself in a situation with “objective aptitude to cloud the understanding of those who are subjected to it, of those who thus attacked observe that their life is in serious and immediate danger.”
“It would be necessary for the shooter to find himself in a situation of stability or emotional control, balance, alien and incompatible with the pressure that, -it goes without saying, due to its obviousness-, causes the possibility, certain and imminent, of losing one’s life,” he emphasizes.
Thus, the Supreme Court reasons that “since (the attacker) was approximately twenty years younger than (the convicted person), and that both were in the middle of the field, perhaps the defendant understood that any persistence in fleeing was destined to fail.” (…) and, when he was about a hundred meters from the starting point, he decided to stop to face his attacker”.
After analyzing the possible actions of the convicted person, the Supreme Court concludes that these are “hypotheses that are developed in the field of purely speculative matters”, stating that “the truth is” that the convicted person decided “not to use the firearm he was carrying until he was certain that the attack was irreversible” because the other “had reached him”. And he emphasizes that, despite seeing the weapon, he did not stop and tried to draw the machete “with an already unmistakable purpose.”
However, the Supreme Court acquits him of the crime of homicide by appreciating the complete defense of self-defense, nevertheless maintaining the conviction for illegal possession of weapons, and orders his “immediate release”.
