Lawful use of Arm (Art. 35 PC). panel code

Lawful use of Arm (Art. 35 PC).

            1 – “Subject to the provisions contained in the two preceding articles, a public officer shall not be punishable if, for the purpose of performing a duty his office, he employs or orders the employment of arms or orders the employment of arms or other physical coercion when he is compelled to do so by the absolute necessity of repelling violence or overcoming resistance to the authorities, or avoiding the escape of a person lawfully arrested or detained for an offence”.

            2 – “The provisions of the first paragraph shall apply to any person who, being lawfully requested by a public officer, affords him assistance”.

            3 – “Other cases in which the use of arms or other means of physical coercion is permitted shall be established by law”.

            This excuse has a subsidiary nature and applies only when it cannot be applied to self-defense and the fulfillment of a duty. In order to qualify for the excuse must be a public officer.

State of necessity (art. 36 PC):

1.     “Whoever has committed an act, having been compelled by the necessity of saving himself or others from actual danger of serious bodily injury, and where such danger has not been voluntarily caused by him or could not otherwise be avoided, shall not be punishable provided that the act is proportionate to the danger, and the person is not legally bound to expose to such danger.”

2.     The provisions of the first paragraph shall also apply if the state of necessity is caused by the threats of others; in this case, however, the person who has compelled another to commit an act shall be liable for the act committed by the other person.

            In the presence of a present danger of serious harm to the person, the person concerned can accomplish, to the detriment of a third, a fact provided by law as a crime.

            For the purposes of exclusion of the offense, it is necessary that such behavior is necessary to save, which is proportionate to the danger and that has not been put in place and / or caused by the offender.

            The first paragraph also includes the case of the so-called Rescue of needy person which occurs when the action infringes a protected interest comes not from the subject threatened but by a third rescuer.

                        Excess committed with culpa of Article 37 PC, occurs when the substantive requirements made of a justification   exists, but the offender,   and goes beyond the limits of the above mentioned Articles.

                        It is distinguished from the error culpable (Art. 38) since in the latter   situation, the exonerating not exist in reality but only in the mind of the           subject offender, while culpable excess, the exonerating exists but the subject, negligently exceeds the limits.