Every few years, whether in Spain or elsewhere in the world, there seems to be a controversial court case involving a property owner defending themselves against an intruder. But it's an open and shut case, you might think? If someone comes onto my property, I can defend myself however I see fit, right?
Well, not exactly.
What constitutes reasonable force, or a justifiable response, and what is considered proportional; these are all concepts under the law that are subjective, circumstantial, and must be proven before a court.
It's a situation nobody ever dreams of finding themselves in, but how can you defend yourself in your home in Spain? What is the law, and how do self-defence laws differ from other countries?
Spanish law
In Spain there are two main legal codes: the Código Penal, which covers criminal law (in non-legalese this basically means offences and punishments), and the Ley de Enjuiciamiento Criminal, or, the criminal procedure code.
In Spanish criminal law, self-defence is covered by Article 20.4 of the Código Penal, which outlines legal exemptions from criminal responsibility in situations where people defend themselves or their property (or defend others or their property), if each of the below criteria has been fulfilled:
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The defender must be responding to unlawful aggression that threatens grave personal danger of imminent injury that is considered unlawful aggression in the eyes of the law.
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That the methods used to prevent or combat that unlawful aggression were rationally necessary.
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A lack of “sufficient” provocation by the defender.
READ MORE: The secret language used by burglars to break into homes in Spain
Complicated Spanish legalese aside, simply put a person is exonerated of criminal responsibility, including any compensation claims, if their self-defence was against unlawful violence; that there was a justifiable need to use the means employed - in other words, if the method, whether with a weapon or not, was justified; and that the aggression was unprovoked by the property owner.
Crucially, Article 20.4 states that illegal entry into private property constitutes unlawful violence. That is to say, if someone enters your home illegally you have the right, legally speaking, to defend yourself if the situation meets all the other criteria.
You must, however, must prove they have met these requisites to be exonerated.
Guns for self-defence in Spain
Contrary to popular belief, there are guns in Spain. In 2017 the Geneva Small Arms Survey estimated that Spain was home to as many as 780,000 illegally owned firearms, but that number could be higher.
That's nothing compared to the United States, of course, but there are also ways to legally obtain a gun in Spain. This is most often for hunting and shooting, but few know that there is also a special license for obtaining a firearm for reasons of self-defence.
READ MORE: What's the law on guns in Spain?
There are believed to be as many as 8,000 Spaniards with special permission to carry guns for self-defence – those declared “at risk” and issued with a 'B license' by Spanish police.
Applicants must prove they are at risk or fear for their life, and it is believed that the majority of these special B license holdees are high-profile public figures like politicians or football players, or those who might come into contact with criminals, such as gun-sellers, judges or magistrates, and former police and military personnel. The weapons must be concealed.
There has been debate in recent years over the use of firearms for self-protection in Spain, with notable cases of gun owners jailed for shooting in self-defence, including a man in his 80s who was sent to jail after shooting an assailant who broke into his home in Tenerife and attacked his wife.
READ ALSO: Far-right Vox party wants to loosen Spain’s gun laws
It has been a recurring populist talking point of far-right party Vox, with leader Santiago Abascal calling for the loosening of gun control in Spain.
International comparison
USA
With the proliferation of guns in the United States, it is perhaps the country most associated with self-defence in the home controversies - often referred to as 'standing your ground.' But what's the law?
The American system rests on the common law principle of what is known as the “castle doctrine”. This enshrines the right to use reasonable force, including deadly force, to defend against intruders in the home. The law varies slightly depending on the state legislature, with some employing a 'duty to retreat' clause as a deescalation tactic, but the 'castle doctrine' remains a fundamental basis to all.
Like in Spain, the right to legal self-defence in the home is dependent on several criteria, of which all must be met:
The home owner or renter genuinely believed they were facing an unlawful attack on them or their property.
They believed the force used or threatened was “necessary to prevent or terminate the interference."
That the belief, even if mistaken, was 'objectively reasonable'.
That the attack was happening at that moment or was imminent.
United Kingdom
According to the GOV.uk website, the UK law on self-defence in the home rests on a loose understanding of using 'reasonable force' to protect yourself if a crime occurs inside your home.
This means you can protect yourself, including using an object as a weapon, and prevent an intruder from escaping, for example by tackling them to the ground
Legally speaking, there’s no concrete definition of ‘reasonable force’ actually entails. It is all very subjective and depends on the circumstances of the particular incident. Contrary to popular belief, you do not have to wait to be attacked before defending yourself in your home.
You do risk being prosecuted however, if you continue the attack after you’re no longer in danger - if the intruder was unconscious, for example - or if you lay a trap for someone.
France
Article 122-5 of France's Penal Code states "a person who, faced with an unjustified attack on themselves or a third person, simultaneously commits an act necessary to legitimate defence, shall incur no criminal liability except where the means employed are disproportionate to the seriousness of the attack."
Like in most countries, in France self-defence is legal only if it occurs simultaneously to the attack, is proportionate to the force used, and the threat is unjustified.
Simply put, similarly to the Spanish system, the behaviour of the home owner must be proportionate to the threat. For example, reacting to verbal abuse by shooting someone would be considered disproportionate and likely to risk prosecution.
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