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According to an old anecdote known in judicial circles, an English judge was asked what to do if there was a burglar in his apartment with a knife in his hand. – Lőjék! Answered. The Hungarian criminal judge, on the other hand, simply spread his hands on the question: – Try to find out if you want to rob or kill yourself and choose a means of defense provided accordingly.
The world has changed a lot since the question and answer story, a Hungarian criminal judge should no longer answer the anecdotal question in a circular sentence. It sounds harsh, but in principle you could also answer: – Kill him! (Do not “shoot” because in Hungary it is, as it were, impossible to legally use a firearm for self-defense, because the weapon, if you have a weapons license, must be kept closed according to strict rules, separate from ammunition, which in case of an unexpected attack it makes the use of weapons difficult).
“He really judges himself”
Ferenc Finkey, former Crown prosecutor in 1909, Hungarian Criminal Law Textbook You have already strongly advocated for legitimate protection in:
It is the duty and duty of the state power to prevent anarchy and violations, and if they have occurred, to repair them later, and thus self-determination is effectively compromised, when the illicit attack is repelled; But there is also no doubt that the State, with its own means of defense (authorities), cannot be always and everywhere, so it must allow the individual to defend himself from extraordinary and clearly illicit attacks, because without him in many cases it would not be possible to prevent infringements.
The perception and regulation of legitimate protection has changed radically during the last decade. As a first step, the Penal Code was modified in the summer of 2009 to include article 29 / A, paragraph that said:
A person who uses the means of protection necessary to prevent an illegal attack against his own person or against the person or property of others will not be punished if he is unable to kill life and the illegal attacker suffers as a result, and if the defender has done everything possible to avoid the harm that could be expected of him in the given situation.
With somewhat clumsy wording, the legislature has significantly expanded the limits of legitimate protection. With exceptions and restrictions, of course. The law legitimate preventive protection As far as you know, you are only insured and still provide impunity if
- the protection device is not suitable for extinguishing life,
- only the illegal attacker suffers damage as a result of the functioning of the defense device,
- the defender has done everything that can be expected in the given situation to avoid injury.
In most criminal cases, preventive legal protection was out of the question because the remedy used was was able to extinguish life. This happened for example
- Szoboszlai Brown Cucumber Farmer In the case of someone who, in the summer of 2008, was conducting electricity at night on a small fence around his orchard and in vain drew attention to the danger with a signal, one of the thieves still died from the electric shock (Szoboszlai he was eventually reprimanded instead of one year in suspended prison); obsession
- Pál Vajtai is an antifreeze producer from Vácszentlászló who in the fall of 2013 poured antifreeze into the cherry wine barrel due to a series of robberies, resulting in a thief who also used designer drugs after the wine died of acute kidney failure (Vajtai was eventually sentenced to one year and a half in prison instead of seven years in prison).
The third faces
Preventive legal protection was regulated in April 2011 by the Basic Law Freedom and responsibility This was followed by Article V of Chapter II of the Convention, which raised the right to protection as a reason for impunity:
Everyone has the right to prevent illegal attacks or direct threats to his person or property, as provided by law.
According to István Kónya, retired vice president of the Curia, the constitutional regulation prescribes the protection of the right to life and, consequently, guarantees the right to legitimate defense, the criminal equivalent of which is legitimate protection.
However, to establish a legitimate defense, there must also be an unlawful attack, because there is no ground of impunity for a provoked attack or an accepted challenge.
The current Penal Code. It maintains that the legislator deliberately rejected the concept of proportionality, so that the only criterion of protection in legitimate defense is necessity. Illegal attack and need for repression: these are the two conditions that sustain legitimate defense.
Zoltán Márki, president of the Council of the Criminal College of the Mansion a Cure Cases In a video panel discussion titled:
If someone is illegally attacked, you can choose from three behaviors. One abandons and surrenders on the spot. Leaving the other tap priest behind, he escapes and the third one faces off.
Situational legitimate protection
The new Penal Code, which entered into force on July 1, 2013, entered into force. introduced it into Hungarian criminal law legitimate situational protection. According to this, in certain situations it is not necessary to examine whether the defense was necessary, since in the case of an unlawful attack on a person, the law presumes the need for reparation. An unlawful attack will be considered as if it was also intended to extinguish the life of the defender,
- if it is committed against a person at night, armed, armed or in groups,
- if you enter the apartment at night, armed, armed or in groups,
- if it is committed by armed intrusion into a fenced enclosure belonging to the home.
In these cases, therefore, the act is not punishable because it is not dangerous for society and the dissuasive action in a situation of legitimate defense is not illegal. A defender of an illegal attack cannot be held liable even for negligence. We can also say that
the risk of an illegal attack must be borne by the attacker.
In the dark all cats are black
One of the conditions for the legitimate protection of the situation is night offense. However, the concept of night is neither the new nor the old Penal Code. does not give a definition. Mihály Tóth, professor of law, with Alexandre Dumas The Three Musketeers He referred to his novel titledIn the dark, all cats are black “. The problem of night robbery, by the way, was simply solved by two and a half millennia of the twelve laws of the tablet:
if someone commits a robbery at night, if the owner kills that person, he is rightly considered dead.
It is true that the concept of night has already been developed by judicial practice. According to these
it covers the period between eleven in the afternoon and five in the morning in Budapest and the big cities at night, and usually between ten and five in the afternoon in the countryside.
During this period, it is more difficult for the assaulted person to seek and receive help, as it is difficult to find a police officer on the streets during the rest period and, anyway, calling another person for help is doubtful. In addition, the darkening makes it difficult to recognize the attacker, but also the attack itself.
They are for legitimate protection limitations it is:
- against verbal acts,
- not be used in retaliation,
- Accepting a mutual challenge creates a state of illegality for both parties,
- provoking an attack deprives the defender of the legitimacy of deterrence,
- Repeal of an act against property that does not involve direct violence should not normally result in the death of the attacker.
According to the decision of the legal unit of the Mansion taken in July 2013
for exceeding legitimate protection [2012. évi C. törvény 22. § (3) bek.] The defender is liable only if the illegal attack did not provoke fear or anger, and deliberately set aside the mildest, but convenient method of repression, when choosing the most serious outcome, because he thus used legitimate defense as a means of retaliation because this legal authority does not grant authorization.
A turning point in jurisprudence
Of course, a law is worth as much as it applies to it.
According to István Kónya, courts sometimes find it difficult to establish legitimate protection even today. There was a turning point in the jurisprudence on November 7, 2017, when the Curia acquitted the defendant of all charges against him, despite the fact that the Court of First Instance suspended a year in prison for dangerous road traffic and vandalism, followed by the Metropolitan Court. second case of attack against the highway and vandalism. He was sentenced to two years of suspended prison.
The story in a nutshell: The lady, who was waiting at a red light in her car, was attacked in 2012 by motorcycle thieves. The perpetrators hit the vehicle window and retrieved her purse from the mother’s seat, along with jewelry, cash and documents, and then drove away. The assaulted woman followed her with her car and, after a chase of about five hundred meters, came into contact with the motorcycle, which overturned and fell so unfortunately under a vehicle stopped there that one of the attackers died at the scene because of his wounds.
István Kónya summarized the essence of the absolution of the Curia as follows:
In this case, in order to protect property, the victim exercised legitimate protection, which also involves hotly pursuing the thief who committed the act. The defendant was the victim of an illegal, violent attack on a two-man checkpoint, and her defensive reaction was natural, necessary and lawful. This is not an exceptional opportunity, but a fundamental right for everyone!
(Cover Image: ppi / Index)
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