A shooting in Bystrzyca Kłodzka, Poland, has ignited debate over self-defense laws, with critics arguing the legal system may favor attackers over those defending themselves.
Limits of Self-Defense in Polish Law
Polish criminal law defines the limits of permissible self-defense against any legally protected “good.” These limits are determined by the concepts of “contemporaneity” and “proportionality,” with proportionality understood as the balance between defensive measures and the “danger of the attack.”
These concepts are inherently vague and subject to individual assessment in each case.
Firearms and Proportionality of Defense
This ambiguity is particularly problematic when firearms are used in self-defense. With a rising number of gun permits issued in Poland, the likelihood of firearm use in self-defense situations is increasing, prompting reflection on socially acceptable interpretations of permissible self-defense, especially when involving firearms.
Firearms are considered exceptional defensive tools, providing a significant advantage over an attacker. However, due to the severe consequences of using a firearm, courts rarely accept its use in self-defense, often resulting in tragic outcomes for the defender – either imprisonment or accusations of exceeding the limits of self-defense.
The Dilemma for Armed Citizens
Facing an attack, a legally armed individual is therefore confronted with a difficult choice: submit to the attack or defend themselves, risking almost certain conviction for exceeding the limits of self-defense. Post-incident evaluations often focus on the consequences of using a weapon, overlooking the fact that the person shot was previously the attacker.
The consequences of using a firearm often overshadow the events leading up to the decision to defend oneself, obscuring the situation faced by the actual victim – the person defending themselves.
Firearms and the Principle of Proportionality
The expectation that a defender always choose defensive measures proportional to the attack is reasonable, which is why firearm owners are advised to carry additional tools like pepper spray or tasers. This allows them to adjust their response to the circumstances, as required by the law’s principle of “proportionality.”
However, this principle clashes with the need for adequate protection of crime victims. A rational person with a gun permit should only resort to lethal force when absolutely necessary.
Subjectivity in Assessing Self-Defense Situations
It is comfortable to assess a potential victim’s situation from the perspective of a courtroom or prosecutor’s office. However, a proper and complete assessment requires experiencing a similar attack firsthand.
Such an assessment would be subjective, based on one’s own perception, skills, and mental resilience, which vary greatly. Attempts to “average” or “objectify” the expected response are likely to fail. How, then, can we judge or condemn a victim for taking “disproportionate” measures to defend their health or life, when their freedom is at stake?
Difficulty Establishing the Avoided Consequences
It is also difficult to accurately determine the consequences a victim avoided. Assessing the attacker’s weapons is insufficient, as severe injuries can result from a simple beating. This deprives victims of a key argument when considering the “proportionality” of their response.
This leads to rhetorical questions like: “Should I have allowed myself to be beaten like a law-abiding citizen?” The use of a firearm is often deemed “disproportionate” even when the attacker possesses a knife or other dangerous weapon.
Article 25 of the Penal Code in Practice
Criticism is directed at the justice system, which often overlooks Article 25 § 3 of the Penal Code, which exempts from punishment those who exceed the limits of self-defense under the influence of fear or agitation justified by the circumstances of the attack. This condition is met in most cases of self-defense against a sudden, direct attack on one’s health or life.
It is difficult to imagine a direct attack not provoking fear or agitation, and linking the method of defense to these emotions is logical.
The Need for Enhanced Citizen Protection
The state cannot protect citizens in every situation. Given this deficit, protecting citizens should prioritize enabling them to effectively defend themselves against crime. This includes allowing victims to use more intense and radical means of defense than those employed by the attacker.
A victim should not hesitate to defend themselves against an unlawful attack for fear of repercussions from the state, which may critically evaluate their defensive actions. As one internet user put it: “In Poland, you can quickly decide whether to die or go to prison for self-defense.”
A Preventative Factor and Reasonable Limits
Such an understanding of self-defense would serve as a preventative factor. Potential attackers would have to consider that their victim might be able to “do more” under the law. However, “more” does not mean “everything.” The limit of such self-defense should be a “flagrant” disproportion between the defensive measures and the potential threat.
The right to self-defense should not be transformed into a license to attack under any pretext.
Double Standards: Home Defense vs. Public Self-Defense
Polish law features provisions that implement this approach, allowing the use of more intense, disproportionate measures in specific cases – protecting one’s home (Article 25 § 2a of the Penal Code). The rationale for increased protection of one’s home and household is unclear when that protection is not extended to a woman walking in a park.
The Need for Consistent Standards
The coexistence of these two protection regimes seems illogical and fails to meet societal expectations. The limits of self-defense should be consistent and uniform, regardless of the threatened good. A higher tolerance for self-defense, as in the case of home protection, seems appropriate in a state governed by law.
Only a “flagrant” disproportion between the defensive measures and the danger of the attack should define the limits of permissible self-defense. Achieving this requires either a gradual evolution of judicial practice or a change to the penal code.
