La legítima defensa en riñas - rompimiento de las condiciones de equilibrio del combate

Abstract

The Supreme Court of Justice, a criminal cassation chamber, has constituted probable doctrine regarding the non-admissibility of legitimate defense in quarrels; however, a sub-rule has been introduced which seeks to create an exception to the general rule of non-admissibility of self-defence in quarrels, which is that when the conditions of balance of combat between opponents have been broken, the disadvantaged party may act in self-defence. However, this sub-rule of the breakdown of the balance of combat has not been explained in detail by the Court, which has meant that its applicability has no concrete effects. For this reason, in the present work it was proposed to solve the following problem question: How should the Sub-Rule adopted by the Supreme Court of Justice – Criminal Cassation Chamber – be interpreted as breaking the conditions of balance of combat so that legitimate defense in quarrels is admissible? For its development, legitimate defense was approached from its foundations, the elements that are inherent to it according to doctrine and jurisprudence were developed and it was tried to locate it dogmatically; Likewise, it was sought to elaborate a jurisprudential line that will detail the progress that the sub-rule in mention has had within the Supreme Court. This allowed us to reach a conclusion on how the Sub-Rule of Breaking the Combat Balance should be interpreted. In effect, we propose that this sub-rule be understood through three scenarios: (i) the first is the "temporary" that allows to determine what are the means agreed by the opponents when accessing the quarrel; (ii) the second is the psychological one that allows us to understand the situation in which it is placed who, after voluntarily agreeing to a quarrel, is seriously affected by that will due to the ignorance of the rules initially agreed (temporary) to such an extent that the quarrel is unknown; and (iii) the third scenario is the material, from which the agreed means to cause mutual harm will be analyzed, and the imbalance caused by the introduction of unagreed elements. Here a definition will no longer be made of the moment in which the dispute originated (temporary), nor what happened later in the subject who saw his agreement of will (psychological) altered, but the equality that was preached of each one in front of that of the adversary at the right moment of the quarrel. That is to say that the interpretation of the breakdown of the balance of the combat must be given taking as a starting point the quarrel, and through this determine which the conditions before it and those that were agreed at the time of accessing the quarrel (temporary), what was the reaction of the aggressor subjects later to vary the conditions of the combat (psychological) and what was the situation that was lived at the exact moment of the quarrel (material). Together, these elements will give the judge the necessary elements to determine whether in the particular case of quarrel the ground for justification of self-defence was presented.