Right to legitimate defense which is popularly known to us as the ‘right to self-defense’ is a right granted to the people residing in the United Arab Emirates through the Federal Penal Code (Fed Law no. 3 of 1987) (hereinafter known as ‘the law’).
This right is essential as it rightly differentiates the actions that are criminal from the ones that are not. The essential elements that need to be present in an act for it to constitute a crime are absent in acts that are in furtherance of the right to legitimate defense. The first element that is to be present in an act in order to make it a crime is the material element and second is the moral element. Now in order for an act to constitute a crime both these elements must exist simultaneously. The material element that is the physical act of performing the act is present in acts of legitimate defense but the moral element is absent. A moral element is the mental element which can be referred to either intention or error. Acts of legitimate defense lack both intention and error. During these acts the intention of the person performing it is not to perform a criminal act against any person or property but only to save of secure one’s self, loved ones, one’s own property or the property of loved ones. Thus criminal intention is not present. Also, error that is defined as mistake due to negligence is again not present in the acts of legitimate defense as the act that is undertaken is not by error but it is done with a purpose to secure oneself. Therefore the moral element that is to be present along with the material element for an act to constitute a crime is missing in the case of acts of legitimate defense and due to this reason these acts are not considered to be crimes and the person who performs such an act is not subjected to any punishment for the same.
We now have a general idea of what acts can be considered to be acts of legitimate defense. This article will further discuss the conditions that are to be fulfilled for an act to fall under the scope of ‘act of legitimate defense.’
1. If the defendant faces the impending danger of a forcible crime to be committed against his person or property or against another person or such other persons property; or if the defendant merely believes the existence of the said danger, provided that his belief is based on reasonable grounds.
The term ‘reasonable grounds’ mentioned herein is not defined as its scope varies in accordance with the circumstances of a case. Therefore while determining whether a case really falls within the purview of the legitimate defense acts, the court first takes in to consideration all the relevant circumstances.
2. If the defendant cannot in time have recourse to the public authorities to repel the danger.
The right to legitimate defense is not a right to take revenge; it is only a right to secure oneself when there is no other means available for the same. In case there is enough time and opportunity available for the person to contact the police and avert the danger, he cannot take things into his own hands and if he does so his act though undertaken to avert the danger is not considered to be an act of legitimate defense but only an act of defense which shall not be immune from penalty. But in case a person has already informed the police to send for help, he can take sufficient measures to prevent danger till help is received.
3. If the defendant disposes of no other mode of protection from the peril.
The person in danger must always take all measures to prevent the danger that do not pose any harms to any other life or property and only when all such means are exhausted the person may take up harsher measures to avoid the danger.
4. If the defense is necessary in order to resist the attack and is proportionate thereto.
The person while defending himself should take only measures enough to secure him from danger and not in excess of that. Where it is enough to avert the danger by threatening the person posing the danger, one must not exceed it and hit the person.
The right of legitimate defense cannot be used to claim immunity in case of a premeditated murder, unless it is committed for the purpose of repelling one of the following cases:
A. An act which makes the person fear that it may cause death or serious injuries, provided that such fear is based on reasonable grounds.
B. Compelling a female to have sexual intercourse or to disgrace by force any other person.
C. Kidnapping a human being.
D. Crimes of fire (arson), destruction or robbery.
E. Entering at night an inhabited house or any of its subsidiaries.
The law also provides an exception to the right which is in regards to resisting members of public authority. This exception comes into play only when the said member of public authority is performing a job in execution of the duties of his function and within its limits. Therefore where a police officer is chasing a person due to wrongful act the person, that person cannot hit the officer and claim for protection under legitimate defense. But in case a person fears that the said public authority is acting in excess of his authority and is likely to cause death or serious injuries. Such a fear must be based on reasonable grounds to invoke protection under the right to legitimate defense.
It is advisable to consult a lawyer whenever the need arises to raise defense that falls within the ambit of Legitimate Defense.
Right to legitimate defense which is popularly known to us as the ‘right to self-defense’ is a right granted to the people residing in the United Arab Emirates through the Federal Penal Code (Fed Law no. 3 of 1987). The present Article explains the reason why such right is provided by the law and also talks about the circumstances in which this right can be claimed.