Self-defence in special situations

• Author: Lamya-Diana H?r?t?u
• Position: PhD Candidate, Teaching Assistant, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (e-mail: av.ldk.ro@gmail.com).
• Pages: 192-198

LESIJ NO. XXII, VOL. 1/2015

SELF-DEFENCE IN SPECIAL SITUATIONS

Lamya-Diana HĂRĂTĂU*

Abstract

In the reality of practical cases and in certain special situations, self-defence may present some

complex forms consisting either in accidental amplification of the issue in fact when self-defence is

claimed, or in the correlation in fact of self-defence to other cases which remove the criminal nature

of act1. For these reasons, we decided to analyse few of such special situations.

Keywords: self-defense, criminal nature, state authority, acts committed on fault, deviated

counter.

1. Issue of existence or inexistence of

self-defence if the attack co mes from the

representative of a state authority. 

1

In time

2

, other specialised works

approached the issue of existence or

inexistence of self-defence if the attack

comes as well from the representative of a

state authority.

Although this issue no longer

represents a problem currently, we have

considered presenting few theories lying on

the base of its settlement.

 Abolition theory.

According to this theory, the citizen

had the obligation to submit unconditionally

to the orders and acts of the representative of

authority, enjoying the absolute presumption

of legality.

 Liberal theory.

 PhD Candidate, Teaching Assistant, Faculty of Law, “Nicolae Titulescu” University of Bucharest ( e-mail:

av.ldk.ro@gmail.com).

1

V. Dongoroz, S. Kahane, I. Oancea, I. Fodor, N. Iliescu, C. Bulai, R. Stănoiu, Theoretical explanations of

Criminal Code, vol. I, Bucharest, ed. Academiei RSR, 1969, p.358.

2

PhD Thesis of D. Clocotici, entitled ”Self-defence – excuse of challenge”, under the coordination of prof. Gr.

Rîpeanu, 1971.

3

French journalist, historian and essayist.

4

Declaration of human and citizen rights, 1789; The main scope of this declaration was to provide to every

individual the use and ma intenance of its rights.

According to this theory, it is deemed

that the citizen was entitled to reject the

illegal act of authority. As stated in t he

doctrine, this theory was sustained in France

by Ar mand Carr el

3

in the magazine

”National” dated 24 January 1832, as well as

in front of the jury of Sena on 13 March 1832

by the lawyer Odillon Barrat. Their

assertions relied on the disposals of art. 11 of

the Declaration of human and citizen rights

4

stating that any act exercised by a

representative of the state and without the

acts claimed by law, is arbitrary and

tyrannical.

 Intermediary theory.

This theory divided however the right

to turn to defence depending on the

aggressors, more exactly depending on the

authority of aggressing agents. Thus,

submission is deemed obligatory according

to this theory only towards the age nts