Concept and Legal Foundations of Emergency Aid
Emergency aid is a central term in criminal law that regulates the defense against present, unlawful attacks. In Germany, emergency aid is regulated as a special case of self-defense in Section 32 of the Criminal Code (StGB) and includes the right to use force in defense against an attack also for the benefit of a third party. While the term is sometimes used synonymously with self-defense, emergency aid focuses on the defense of another person.
Statutory Regulation
Section 32 Criminal Code (StGB)
The statutory basis for emergency aid is Section 32 StGB, which covers both self-defense and emergency aid. According to paragraph 2, self-defense is the defense necessary to avert a present, unlawful attack from oneself or another.
Scope of Protection
Emergency aid protects the life, physical integrity, health, freedom, property, and other individual legal interests of third parties. In contrast to self-defense, where a person defends themselves, emergency aid confers the right to ward off an attack on the above-mentioned legal interests of another.
Requirements for Emergency Aid
1. Existence of a Present Unlawful Attack
The basic requirement is a present attack that objectively poses a risk of violation to the legally protected interests of another. The attack must be imminent, already underway, or still ongoing. It must also not be lawful, e.g., as part of police measures.
2. Necessity of the Defensive Action
The defense must be suitable and necessary, i.e., it must constitute the mildest means capable of securely and definitively averting the attack. Not every conceivable means is permissible; the actor must not use unnecessarily more severe means nor unduly endanger the attacker if milder measures are available.
3. Appropriateness of the Defense
The act of emergency aid must be ethically justified. It is not permissible in cases of gross disproportionality between the protected and the injured legal interest (extreme cases), in attacks by visibly innocent or mistaken individuals, or in the case of attacking children.
4. Defensive Intent (Subjective Element of Justification)
The actor must act with the intention of defending the legal interests of another, i.e., must deliberately wish to protect someone else’s legal interests.
Distinction from Other Grounds of Justification
Necessity (Section 34 StGB)
Justified necessity pursuant to Section 34 StGB allows interference with legal interests to avert a present danger, while emergency aid is exclusively directed against attacks by humans.
Self-Defense (Section 32 StGB)
While self-defense covers the defense of one’s own legal interests, emergency aid refers to the defense of third-party legal interests. However, both are subject to the same requirements.
Defensive Necessity (Section 228 BGB)
In civil law, defensive necessity is regulated, which gives the right to damage or destroy an object to avert a danger.
Legal Limits and Special Features
Excess and Proportionality
Although self-defense law does not involve a strict principle of proportionality, emergency aid is nonetheless restricted if the chosen defense measure is manifestly inappropriate or cruel.
Mistake Regarding the Emergency Aid Situation
A mistake regarding the existence of an emergency aid situation can, under criminal law, be considered putative self-defense, which can affect criminal liability (mistake as to justification).
Police Emergency Aid
Police officers are also entitled to provide emergency aid on behalf of third parties. In doing so, they often assume a guarantor position and are, in certain situations, obliged to provide emergency aid.
Procedural Consequences in Criminal Law
An act of emergency aid that fulfills all statutory requirements negates the unlawfulness of the act. The actor cannot therefore be prosecuted for an act that would otherwise be a criminal offense.
Significance of Emergency Aid in International Comparison
Austria
In Austria, emergency aid is also regulated (Section 3 StGB), and its basic structures are comparable to those found in German criminal law.
Switzerland
The Swiss Criminal Code refers to emergency aid as ‘Notwehrhilfe’ (Article 15 StGB), with similar requirements as under German law.
Relevance and Practical Significance
Emergency aid is of great importance in case law and has significant practical relevance in everyday situations – for example, during attacks in public spaces. It protects the societal interest in repelling unlawful attacks and enables civil courage through legal protection.
Literature and Further Sources
- StGB, Criminal Code (Germany), Commentary
- Fischer, Criminal Code, Textbook and Practice Commentary
- Schönke/Schröder, Criminal Code, Commentary
Note: The legal remarks refer to the legal situation in the Federal Republic of Germany. Country-specific peculiarities may result in differing regulations.
Frequently Asked Questions
When may emergency aid be applied in a legal sense?
In criminal law, emergency aid is an act by which someone repels a present, unlawful attack on a legally protected interest (e.g., life, health, property) of a third party or themselves. Its legality is subject to strict conditions: There must be a present attack, meaning it is imminent, has already begun, or is still ongoing. The attack must be clearly unlawful, i.e., not itself justified by law. The defensive act must be necessary to avert the attack and must be a suitable, mildest means. The degree of defense must not exceed what is objectively necessary to avert the danger (principle of necessity). If the defender exceeds these limits, they may be criminally liable unless an excuse applies (e.g., excusable necessity due to emotional overwhelm, Section 33 StGB).
What requirements must an act of emergency aid meet in order to be lawful?
For an act of emergency aid to be lawful, several requirements must be met: The attack must be directed at a legal interest capable of being the subject of emergency aid, belonging to another or to the actor themselves. The attack must be present and unlawful. The defense must objectively be suitable and necessary to avert the threat; it must not exceed what is necessary for immediate defense. The prohibition against excess applies: The defense must not be clearly disproportionate to the threat at hand. If all requirements are met, German law deems the defensive act lawful, such that the person providing emergency aid does not commit a criminal offense.
What are the legal consequences if emergency aid goes too far?
If an act of emergency aid is no longer covered by self-defense law, for instance because it exceeds what is necessary for defense or is clearly disproportionate, this can have criminal and possibly civil consequences. If someone knowingly exceeds the limits of emergency aid, they are typically criminally liable (e.g., for bodily harm or property damage). To avoid liability, it is always necessary to carefully assess whether the defense remains proportionate. An exception is excusable necessity if the person exceeded the limits due to confusion, fear, or panic (Section 33 StGB).
Is emergency aid permissible in cases of attacks on strangers?
German law expressly permits defending not only oneself but also third parties by way of emergency aid. This is regulated, for example, in Section 32 StGB, which states that anyone may act to avert a present, unlawful attack also on behalf of another. However, the same strict conditions and limits apply as with self-defense for personal protection. Particular attention must be paid to whether there is truly an attack on a legal interest of another capable of protection by emergency aid and that the defense is actually directed at the attacker.
How is the necessity of the emergency aid action legally assessed?
Necessity is determined according to objective criteria. An act of emergency aid is only permissible if it is suitable to end or at least mitigate the attack, and no milder but equally effective means are available to avert the danger. In case of doubt, the actor must choose the mildest available means. The assessment is based on an ex-ante perspective, i.e., the view of a reasonable third party at the time of the defense. Subsequent knowledge that a milder means would also have sufficed is irrelevant.
What restrictions exist for exercising emergency aid within the legal framework?
Emergency aid is legally limited by various boundaries: It is not permissible in so-called trivial attacks, where the defense is disproportionate to the danger. In addition, certain groups (e.g., children, persons incapable of guilt) must be considered, against whom emergency aid is not readily permissible. The prohibition of excess also precludes such drastic defense measures where the harm to the attacker’s legal interests clearly outweighs the danger to be averted.
What special considerations apply to emergency aid in connection with state intervention or official actions?
In principle, emergency aid may also be exercised against state authorities if they are acting unlawfully (e.g., manifestly unlawful use of force by police officers). However, significant restrictions apply: Self-defense/emergency aid is generally excluded if official actions are clearly lawful, since in such cases there is no unlawful attack. In practice, assessing the unlawfulness of state action in the specific situation can be difficult. Moreover, the legal system may require that one subsequently defends oneself against unlawful state conduct through legal channels rather than by means of force at the time of the incident (legal protection against official misconduct).
