Self-defence in the EU: how the Roggero case would have ended in Germany, France and Spain
A ruling that has sparked a great deal of controversy, but which would probably have reached the same conclusion in France and Spain as well. Only in Germany, perhaps, might the outcome have been more favourable to the jeweller.
The case of Mario Roggero — the jeweller from Grinzane Cavour, definitively sentenced by the Court of Cassation to 14 years and 9 months’ imprisonment for chasing and killing two fleeing robbers in the street — is a clear example of the boundaries between the right to self-defence and the prohibition on taking the law into one’s own hands. In Italia, the courts ruled out self-defence as the jeweller’s physical safety and that of his family were no longer at risk (the criminals were by then outside the shop) and the use of lethal force solely to defend property was deemed disproportionate. This outcome has sparked much controversy, but it would probably have been the same in France and Spain. Only in Germany, perhaps, might the outcome have been more favourable to the jeweller.
France: a total ban on killing for property
In France, légitime défense is governed by Articles 122-5 and 122-6 of the Code pénal. French law draws a clear distinction between personal safety and private property: the defence of persons must be in response to an actual or imminent attack, and must be necessary and proportionate. Defence of property is permitted to prevent the commission of a property offence, but the Code expressly states: “sauf l’homicide volontaire” (except in the case of voluntary homicide). On French territory, it is strictly forbidden to kill someone to protect property or to recover stolen goods.
The case of Stéphane Turk, the jeweller from Nice
There is a similar legal precedent in France: the case of the jeweller from Nice Stéphane Turk. In 2013, he shot a robber in the back as the robber was fleeing on a scooter with the loot. His claim of self-defence was rejected outright: on 31 May 2018, Stéphane Turk was given a five-year suspended prison sentence (meaning he would not serve time in prison). The court decided not to convict him of murder, but rather of “intentional assault with a weapon resulting in death without the intention to kill”. Turk accepted the sentence without appealing.
Spain: the ‘rational necessity’ test
The Spanish Criminal Code (Código Penal, Art. 20.4) regards legitimate defence as a ground for full exoneration (eximente completa), provided that three conditions are met. Firstly, an unlawful attack: in the case of property, this must constitute an attack entailing a serious and imminent risk of loss. Secondly, the rational necessity of the means employed: this means that the defender must choose the least harmful response possible from among those actually available to stop the attack. Thirdly, there must be no provocation on the part of the person defending themselves. According to the Spanish Supreme Court, once the robber ceases to threaten people and flees, the attack on personal safety has ended. Using a firearm against fleeing individuals to protect a purely economic interest (the jewellery) radically violates the principle of the rational necessity of the means.
Germany: the exception of the ‘right that does not yield to wrongdoing’
Germany has historically had the strictest legal framework in favour of a citizen under attack. Self-defence is based on the philosophical and legal principle that “Das Recht braucht dem Unrecht nicht zu weichen” (The law need not yield to wrongdoing). The fundamental difference lies in the definition of the ‘imminence of danger’: under German law, an attack on property is considered to be still ongoing (gegenwärtig) as long as the thief is fleeing with the stolen goods and has not yet taken them to a safe place. Technically, therefore, the “defence situation” persisted even whilst the robbers were running towards the car.
