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Right to self-defence

Sifu H. Schwaermer

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Self-defence is a term of the legal terminology and designates - regardless of certain conceptual differences in the individual legal systems - the  harmlessness by civil and penal law of damaging actions, if they are carried out in order to repel an attack  and if they are aimed at the aggressor or a third person.

The right to self-defence is derived from the Roman rule of law Vim vi repellere licet (violence may be responded by violence), in modern usage often the basic principle "the right does not have to give way to the wrong" (also called principle of legal probation) is applied. By this the right to self-defence shall be justified. But also a first principle is retained: Someone who is attacked must have basically  the right to defend himself by violence, even if  an escape as "the most moderate means" of the "self-defence" would be possible for him; therefore he can defend himself und does not have to yield.
 
Legal situation
Self-defence is the defence which is required in order to reject from oneself or another person a current illegal attack. (cp. § 227 clause 2. Civil code, §32 clause 2, penal code, §15 clause 2 Administrative Offences Act)
An act of self-defence corrresponding to these legal criteria is a justified intervention into the protected  interests of the aggressor and therefore no punishable injustice. All individual protected interests (for example the protected  interests such as  life, body, freedom, honor, property specified in §34 penal code) are covered by the self-defence paragraph. Attacks on protected interests of the general public are not in compliance with self-defence.
 
Situation of a self-defence
A condition for the legitimacy of a self-defence action is a situation of a self-defence due to  a current and illegal attack.
Each threat of legally protected interests  by human behaviour is regarded as such an attack. This implies only the "individual protected rights", not the "protected rights" of the general public (as for example the security in the traffic).
An attack is currrent as soon as a threat is imminent, is taking place or is continuing.
It is still controversial whether illegal means that a clear contradiction to the legal order must be recognizable or whether already a threat of the protected interests is sufficient which the person being attacked has not to tolerate.
In any case the illegality of the attack is always annulled if there is a reason for justification in favour of  the aggressor himself (for example self-defence or emergency). If for example a person being attacked makes use of an object of a third person in order to reject an attack against himself, the third person may not take away the object from the attacked person. For the third person there is no situation of a self-defence, as the use and possible damage of the object is justified by the person being attacked due to his situation of a self-defence. Self-defence against an act of self-defence is not possible.
 
Act of self-defence
An act of self-defence is an action which the defender undertakes in order to repel an  attack. Self-defence only authorizes to the necessary defence. A necessary defence is the least offensive one of all possible ones  which is suitable to put safely and definitely  an end to the attack.
The person who acts in self-defence has to choose the least offensive means, he is however not obliged to take any risks when defending himself. Neither is he obliged to a disreputable escape, as the right has not to give way to the wrong. A weighting of the conflicting protected interests does not take place. This means, the person acting in self-defence does not have to check the commensurability. For this reason nobody has to accept a physical injury, if this one can only be avoided by an act of defence leading to death. There is only an exception in case of the so-called striking  inadequacy. To steal fruit for example  (at least by children tried as minors) may not be defeated by using  lethal guns. To steal objects with an average value however may be repelled, according to majority opinion  with a defence act ending deadly  if less offensive means are not available.
 
Defence
Self-defence may only be applied to the aggressor. If other persons are involved into the act of self-defence, only reasons of justification and excuse (e.g.state of emergency) are taken into consideration.
 
The will of defence
In jurisdiction in addition to the existence of objective conditions of § 32 penal code a subjective element of justification, the will of defence is required as a condition of a self-defence exempt from punishment.
Example: If someone strikes down a thief on the run  without knowing that the thief was fleeing, he cannot plead non criminal self-defence for lack of will of defence, even if objectively there is a situation of self-defence.
 
Justification
Furthermore the act of self-defence must be justified in order to be legitimate ("a person commiting a crime which is justified by self-defence does not act illegally" - § 32 clause 1 penal code). In this case we speak of " social-ethical restrictions". In normal case the act of self-defence is justified; it has only to be investigated in the (following) pertinent case constellations:
 
Provocation of self-defence
It is a special case if the attacked person himself has caused the situation of self-defence either intentionally or by other means (e.g. by provoking the aggressor). In this case we speak of a provocation of self-defence.
 
Excess of self-defence
Intensive excess of self-defence
If the defender exceeds the extent of the self-defence, consequently the necessity of his act of defence, we speak of an intensive excess of self-defence. In this case the defender acts illegally, he may however not be punished, if he acted  by confusion, fear or shock (the so-called asthenic affects). In contrast to the wording of the law (cp. § 33 penal code), according to the reigning jurisprudential  opinion  this is an exculpation and not only an individual/subjective reason for exemption from punishment. According to both opinions a criminal participation in the act of excess is possible (cp. §29 penal code).
If however the offender is driven to intensive excess of self-defence  by sthenic (powerful) emotions like anger, rage, jealousy, craving for recognition, he is in principle completely liable. If these emotions appear the diagnosis of asthenic affects under the application of § 33 penal code is not affected if there is a mixture of motivations.
 
Extensive excess of self-defence
An extensive excess of self-defence is a qualitative exceeding of the self-defence, so that the conditions for a self-defence do not exist and the offender is completely liable, for example excess in the selection of means (necessity) or the defence of further interests but not protected by self-defence or the defence not justified by time (timeliness).
 
Penal law
According to the German three-step structure of delicts (in the sense of the rules of action in the penal law,  applied not only in individual cases or in the past) the infringement of a penal law (the so-called  proportionality of the elements of a crime) does not justify alone  the C  of the offender.
In fact  in the second step of the examination the illegality of the criminal act is already excluded, if the offender has a reason for justification.  If the offender can refer to a reason for justification he has not committed an injustice. There are a lot of reasons for justification in the German penal law  which are not specified completely.
Conclusion regarding  the right to self-defence: Treat everyone in the way he has deserved it! Sifu H. Schwaermer

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