Legal Principles of Illegality and Justification Grounds

Item VI. Illegality

1. Formal and Material Unlawfulness

When conduct is unlawful, it means that it is contrary to the law. To conduct the trial of "illegality" is not enough to determine whether, formally, the accomplished fact meets the elements contained in the legal description of the crime. It should also be established that it affects the legal interests protected, which is a prerequisite for its criminal indictment. It is also accurate to say that it is not permitted by other laws, whether criminal or extra-penal.

The trial through which one assesses whether the conduct described by law legally affects the criminal protection order is called the material trial of unlawfulness and is conducted within the scope of typicity. Once the typicity of behavior is affirmed—that is, the correspondence between the elements that define the course of events described in the criminal law and those specifically present in the trial—one should consider the following crime category: illegality, where the formal trial of unlawfulness occurs.

It must be considered whether the typical behavior can indeed be considered contrary to law, in view of the specific circumstances of action, to the extent that the legislature has expressly provided various clauses of permit or justification for the typical conduct. The trial through which it examines whether illegality exists is called the formal trial.

2. Exclusions and Grounds for Justification

The causes of justification (for excluding criminal responsibility) include:

• Defense
• State of necessity
• Acting in pursuance of a duty
• Legitimate exercise of a right, office, or position

The concept of defense involves two ideas: First, it presupposes the commission of conduct that is, in principle, prohibited by the ordinance. It only makes sense to exempt from punishment a priori those to whom the law would otherwise apply—that is, those who have committed conduct generally prohibited by law (typical). Second, full accreditation brings the acquittal of the perpetrator of the conduct.

The concurrence of causes of justification does not negate the criminality of the conduct. Typical behavior is abstractly devalued by law and, therefore, should be avoided where possible. This is the reason why the grounds of justification must be interpreted restrictively. Justifications consist of objective and subjective elements, essential and secondary, whose specific configuration is examined in the analysis of each of them separately.

For full exemption from the penalty, fulfillment of both essential and secondary elements is required. If only the first are present, one can only appreciate an incomplete defense.