Sometimes we find ourselves in situations where we have to protect ourselves or others, for example from an attack or an impending danger. But when is it permissible to defend yourself? What does the law say about this? The terms self-defense and emergency are important terms in German law that explain when we are allowed to defend ourselves without having to fear criminal consequences.
What is self-defense?
Self-defense is regulated in Section 32 of the German Criminal Code and stipulates the right to defend oneself against a current and unlawful attack. Self-defense ensures that no one has to expose themselves to an attack defenselessly. If the conditions are met, the act committed in self-defense is not unlawful and one is not committing a criminal offense.
requirements for self-defense
For an act to be justified as self-defense, several conditions must be met. These relate to the attack, the defense and the proportionality of the act.
The attack
First of all, there must be a present and unlawful attack. An attack is understood to be an immediate threat or violation of legally protected goods, such as physical integrity or property. The attack is present if it is imminent, is currently taking place or is still ongoing. Finally, the attack must also be unlawful. This is the case if it is objectively in conflict with the legal system.
The defensive action
Furthermore, there must be a defensive action. This means either a purely defensive defense against the attack or a defense in the form of a counterattack. It should be noted that this defensive action must be objectively necessary. This means that it is suitable for defending against the attack and represents the relatively mildest means.
The necessity of defense
Finally, the defense must also be necessary. This means that it cannot be unlawful in exceptional cases, even though it is necessary and appropriate. The defense is unlawful in exceptional cases, for example, in the case of minor attacks. If the attack is only minor, a violent reaction can be disproportionate. The legal system also requires restraint if the attacker is obviously innocent, such as in the case of children or mentally ill people. In family or close personal relationships, such as between spouses or parents and children, the person attacked is also expected to de-escalate or choose milder means of defense if possible. A defense is also inadmissible if the attack occurs as part of socially acceptable behavior, such as if someone accidentally bumps into someone on the subway. In addition, an act of self-defense may be inappropriate if there is a blatant disproportion between attack and defense, for example if a shoplifter is stopped by deadly force. Anyone who intentionally provokes a situation of self-defense in order to be able to use violence is abusing the law and loses the protection of self-defense. Finally, persons with special responsibilities, such as parents or nursing assistants, are encouraged to use milder measures because they have a guarantor position against the attacker.
What is an emergency?
The justifying state of emergency is regulated in Section 34 of the German Criminal Code. It exists when someone averts a danger to themselves or others by impairing another legal interest. The justifying state of emergency thus makes it possible to justify a violation of a legal interest in certain exceptional situations if it averts a greater danger. This legal concept serves to weigh up two competing legal interests in conflict situations and to allow the legal system to react flexibly to existential threats.
conditions of the state of emergency
Certain conditions must also be met for a justifying emergency to exist. These include the present danger, the emergency action and the will to avert it.
Present Danger
First of all, there must be a present danger. This means a situation in which, due to the circumstances, there is a significant probability that a legal interest will be damaged. The danger must be imminent or have already occurred. Future, hypothetical dangers are not sufficient. All legally recognized interests are protected, such as life, health, property or freedom. This also includes ideal values such as honor.
emergency action
Furthermore, there must be an emergency action. This action must be necessary to avert the danger. This is the case if there is no milder means to eliminate the danger just as effectively and the action is suitable to actually avert or reduce the danger.
In addition, a balancing of interests is carried out, in which the interests affected are weighed against each other. The protected interest must significantly outweigh the impaired interest. This balancing is carried out on the basis of objective criteria. On the one hand, the quality of the legal interests is taken into account. Higher-value legal interests such as life and health usually outweigh material interests such as property. On the other hand, the extent of the danger must also be taken into account. The impending danger must be significant, while the damage caused remains as low as possible. Finally, the act must be an appropriate means of averting the danger and must therefore not be disproportionate to the danger.
will to avoid
Finally, the perpetrator must confront the danger with the will to avert it, i.e. have the intention in the sense of a goal-oriented will to avert the danger completely or at least to mitigate it.
Conclusion
Both self-defense and emergency are essential rules that allow you to protect yourself or others in dangerous situations. While self-defense aims to ward off an attack, emergency serves to counter danger. In both cases, the decisive factor is that the defense is proportionate and necessary. Despite their importance, such measures should always remain the exception, as they often lead to legal and moral considerations. In cases of doubt, it is therefore advisable to seek legal advice in order to better understand the limits and possibilities of this legal concept.
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