Facts
The appellant, Gil y Duarte, was convicted of intentional homicide and attempted homicide and sentenced to seven years in prison and 15 years of expulsion from the country. The incident occurred on November 9, 1973, when Gil y Duarte took a hat that did not belong to him in a restaurant in Biel-Mett. The rightful owner of the hat, Hans Schindler, followed Gil y Duarte to his apartment and demanded the hat back. Gil y Duarte reluctantly handed over the hat and returned with Schindler to the restaurant. There, a confrontation ensued, during which Gil y Duarte drew a pistol and shot at several people, killing one person and injuring two others.
The jury court of the IV district of the canton of Bern convicted Gil y Duarte and acknowledged putative self-defense, but considered Gil's reaction to be inappropriate. Gil y Duarte filed a complaint of nullity with a request for referral for acquittal.
Considerations
The Federal Court examined the question of the appropriateness of the defense exercised by Gil y Duarte in putative self-defense. It found that the appellant had deliberately shot at each of the alleged attackers and had done so with the intention of killing Witschi, and at least with the acceptance of potentially fatal injuries against Marchetti, Gertsch, and Hurni.
The court pointed out that putative self-defense only entitles one to proportional defense and that the reaction of the person attacked must be appropriate to the circumstances. It stated that the lower court had not misconstrued the criteria for assessing Gil's reaction and that the targeted shooting at Witschi and the other alleged attackers was disproportionate under the…