Defensa putativa Costa Rica
– Defensa putativa
La defensa putativa tiene los mismos presupuestos que la legítima defensa real, con la
diferencia de que, en la primera, la agresión no existe objetivamente, sino que es supuesta
por el agente, a causa de un error tolerable en la apreciación de los hechos, lo que deberá
acreditarse en el proceso o, en su defecto, se deberá crear la duda razonable y debe repeler con un medio razonable ese ataque. Presupone entonces que el sujeto
conoce que está siendo agredido o que corre riesgo de serlo, por una acción inminente.
Por su parte, la defensa putativa implica que el sujeto activo cree subjetivamente que es
víctima de un ataque que le hace reaccionar defendiéndose, pero que en definitiva, este
ataque no era posible porque su “ofensor” no tenía los medios idóneos para hacerlo195.
La problemática de las justificaciones putativas debe verse como un error de prohibición,
con lo cual no debe acudirse a la tesis de excluir el dolo en estos supuestos, y, por
consiguiente, se mantiene la antijuridicidad del hecho, ya que la contradicción con el
ordenamiento jurídico, permanece vigente.
La defensa putativa es la acción frente a una agresión que no
existe realmente, y solo dará lugar a una causa de exculpación,
si el error era invencible o a una atenuación de la pena,
si era vencible.
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