Self-defense in the EU: how the Roggero case would have ended in Germany, France, and Spain

The case of Mario Roggero — the jeweler from Grinzane Cavour definitively sentenced by the Court of Cassation to 14 years and 9 months in prison for having chased and killed two fleeing robbers in the street — represents a clear example of the boundaries between the right to self-defense and the prohibition of taking justice into one’s own hands. In Italy, the judiciary excluded legitimate self-defense as the physical safety of the jeweler and his family was no longer at risk (the criminals were already outside the shop) and the use of lethal force to defend only property was deemed disproportionate. An outcome that sparked much controversy, but which would probably have had the same outcome in France and Spain. Only in Germany, perhaps, could the outcome have been more favorable to the jeweler.

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In France, the légitime défense is governed by articles 122-5 and 122-6 of the Code pénal. French law draws a clear line between personal safety and private property: the defense of persons must respond to a current or imminent aggression, be necessary and proportionate. The defense of property is permitted to interrupt the execution of a crime against property, but the code expressly specifies: “sauf l’homicide volontaire” (except voluntary homicide). In French territory, it is strictly forbidden to kill someone to protect objects or to recover stolen goods.

There is a similar jurisprudential precedent in France: the case of the Nice jeweler Stéphane Turk. In 2013, the man shot a robber in the back who was fleeing on a scooter with the loot. Self-defense was totally rejected: on May 31, 2018, Stéphane Turk was sentenced to 5 years in prison with a suspended sentence (suspended, therefore without going to prison). The court decided not to convict him of voluntary homicide, but rather for “voluntary violence with the use of weapons that caused death without the intention of causing it.” Turk accepted the sentence without appealing.

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The Spanish penal code (Código Penal, art. 20.4) considers legítima defensa as a cause of total justification (eximente completa), provided that three requirements coexist. First, illegitimate aggression: in the case of property, it must be configured as an attack that entails a serious and imminent danger of loss. Second, rational necessity of the means employed: this means that the defender must choose the least harmful response possible among those concretely available to block the offense. Third, lack of provocation on the part of the defender. For the Tribunal Supremo of Spain, from the moment the robber stops threatening people and flees, the aggression against personal safety has ended. Using a firearm against fleeing subjects to preserve a purely economic interest (the jewels) radically violates the principle of rational necessity of the means.

Germany has historically the most rigid legal system in favor of the attacked citizen. Self-defense is based on the philosophical and legal principle that “Das Recht braucht dem Unrecht nicht zu weichen” (Right does not have to yield to wrong). The fundamental difference lies in the definition of the immediacy of the danger: for German law, the attack on property is still considered ongoing (gegenwärtig) as long as the thief is fleeing with the stolen goods and has not yet brought them to a safe place. Technically, therefore, the “defense situation” persisted even while the robbers were running towards the car.

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