Concept and Meaning of Excessive Self-Defense
Excessive self-defense is a significant concept in criminal law, describing situations where a person exceeds the legally permitted limits of self-defense. While self-defense under § 32 of the German Criminal Code (StGB) generally allows someone to defend against an unlawful attack without penalty, in cases of excessive self-defense, the boundaries of necessary defense are overstepped. Excessive self-defense is addressed particularly in § 33 StGB (“Exceeding Self-Defense”), which may provide for exemption from punishment under certain conditions.
Legal Basis
Self-Defense under § 32 StGB
To understand the concept of excessive self-defense, it is necessary to distinguish it from lawful self-defense:
- Self-defense is the defense that is required to avert a present, unlawful attack from oneself or another.
- Anyone who acts in self-defense is, in principle, not acting unlawfully and is protected from punishment.
Exceeding Self-Defense – § 33 StGB
The central reference point for excessive self-defense is found in § 33 StGB. It states:
“If the perpetrator exceeds the limits of self-defense due to confusion, fear, or shock, he shall not be punished.”
The provision offers a personal exemption from punishment in cases where the perpetrator, in a highly charged situation, exceeds the necessary degree of defense due to intense emotional stress.
Factual Elements of Excessive Self-Defense
Exceeding the Boundaries of Self-Defense
Excessive self-defense requires that the limits of necessary defense are exceeded. This transgression may relate to Intensity (intensive excessive self-defense), as well as to Duration (extensive excessive self-defense):
- Intensive Excessive Self-Defense: The defense is performed with greater force than was objectively necessary to ward off the attack, e.g., by using disproportionate means.
- Extensive Excessive Self-Defense: The defensive action takes place outside the time frame of self-defense, e.g., before an attack has started or after the attack has already ended. It is disputed whether § 33 StGB also applies to this case (see below for more).
Situation of Self-Defense
The existence of a self-defense situation is required. Thus, excessive self-defense presupposes an actual, ongoing, unlawful attack. If only a supposed attack exists, an error of justification may be present, which must be assessed separately.
Subjective Element: “Confusion, Fear, or Shock”
Immunity from punishment under § 33 StGB does not apply if the perpetrator exceeds the boundaries of self-defense in a mental exceptional situation as named in the statute. This refers to:
- Confusion: A state of mental disarray triggered by the attack situation.
- Fear: Intense emotional reaction of anxiety.
- Shock: Sudden, intense fright that impairs controlled action.
Outside this scope, the perpetrator remains liable to punishment, e.g., if acting out of revenge or with deliberate intent.
Exclusion of Immunity in Case of Intent
§ 33 StGB does not apply when the transgression occurs intentionally or for other motives.
Types of Excessive Self-Defense
Intensive Excessive Self-Defense
In this type, the defensive act occurs within a real self-defense situation, but is intensified beyond what is necessary for defense. Example: Inflicting excessively serious injuries on the attacker despite the possibility of a milder defense.
Extensive Excessive Self-Defense
In this case, the defensive action takes place outside the period of the attack, i.e., before or after the self-defense situation actually existed. The application of § 33 StGB to this situation is controversial in academic literature and case law. The prevailing opinion, particularly since a decision by the Federal Court of Justice (BGHSt 1, 255), largely excludes extensive excessive self-defense, so that § 33 StGB applies only to intensive excessive self-defense.
Distinction from Related Legal Concepts
Necessity (§ 34 StGB)
While excessive self-defense involves exceeding the limits of necessity, the justifying necessity under § 34 StGB concerns balancing conflicting interests in the context of a present danger—not necessarily in connection with a human attack.
Putative Self-Defense and Error of Justification
If someone acts under the mistaken belief that there is a situation of self-defense (putative self-defense), the legal situation is different: here, a mistake about the prohibition or justification can be considered, each requiring separate examination.
Legal Consequences of Excessive Self-Defense
The assessment is based on the differentiation between immunity from punishment under § 33 StGB and criminal liability for conduct satisfying all elements of an offense (e.g., bodily injury or manslaughter). § 33 StGB grants immunity from punishment only for such excesses that result from a psychological exceptional situation brought about by the self-defense situation. In other cases, the perpetrator remains punishable, but there may be the possibility of mitigation of punishment (§ 49 StGB).
Court Practice
Courts place great emphasis on a careful examination of the perpetrator’s psychological exceptional state. Important factors include:
- objective assessment of the attack situation,
- determination of the emotional state,
- examination of the self-defense situation and the extent of the excess.
Only in rare exceptional cases is the excessive overstepping of boundaries due to emotion acknowledged and leads to immunity from punishment.
Summary and Significance
Excessive self-defense is a special and to be interpreted restrictively exceptional provision in German criminal law. It protects only those who, in an acute emergency, are driven to an excessive reaction by confusion, fear, or shock from criminal prosecution. Careful differentiation according to the type, timing, and circumstances of the transgression is of central importance for legal assessment. Especially the restrictive interpretation with regard to the timing (exclusion of extensive excessive self-defense) and the close examination of the mental exceptional state are emphasized in jurisprudence and legal scholarship. Excessive self-defense illustrates the balance between individual rights of defense and the principle of proportionality in state punishment.
Frequently Asked Questions
How is excessive self-defense treated under German criminal law?
In German criminal law, excessive self-defense is governed by § 33 StGB. It is distinguished from so-called “intensive” excessive self-defense, which is present when the limits of necessary defense are exceeded due to confusion, fear, or shock. In these cases, the perpetrator may not be punished because of the exceptional emotional state. However, § 33 StGB does not apply to “extensive” excessive self-defense, i.e., when the act of self-defense takes place significantly after the attack has ended. It is important that only acts of self-defense exceeding the necessary limits are covered by excessive self-defense, not situations where there is no longer any need for defense at all. The legal consequence is exemption from punishment if the aforementioned conditions are met.
Under what circumstances does excessive self-defense occur?
Excessive self-defense under § 33 StGB requires that the limits of self-defense have been exceeded “due to confusion, fear, or shock.” This means the defender acts, for psychological reasons, beyond what is necessary. There must have been a present, unlawful attack to which the perpetrator responded in a way that was, in itself, still justified, but, due to their internal state (confusion, fear, or shock), went too far. The overstepping of the boundaries of self-defense must be directly caused by one of these mental states. Furthermore, case law requires that an “intensive” excess is present: the action essentially takes place during the ongoing attack, with a certain degree of simultaneity between attack and excess generally required.
What role do psychological states play in excessive self-defense?
The psychological states—confusion, fear, or shock—are the central criterion for the application of § 33 StGB. Confusion refers to a condition in which rational consideration is only limitedly possible, making it difficult to assess the self-defense situation and the necessary degree of defense correctly. Fear refers to anxiety triggered by the attack, leading to an overreaction. Shock is a state of sudden, severe fright, which impairs the capacity for calm action. These conditions must be so overwhelming that the perpetrator is no longer able to control himself, thus crossing the boundary of self-defense. Proving these internal processes is often difficult in practice and must be clarified in individual cases through the taking of evidence.
Can a negligent overstepping of the self-defense limits also justify excessive self-defense?
A merely negligent overstepping of self-defense boundaries is not sufficient for the application of § 33 StGB. Rather, the courts require that the transgression occurs consciously or at least in a state in which control over one’s own actions is lacking due to confusion, fear, or shock. A mistake about the necessary degree of self-defense or an unintended excess due to carelessness is not enough. It is necessary that the psychological exceptional state is the determining cause for the action taken beyond self-defense. If only an avoidable error is present without the named mental states, excessive self-defense does not apply.
How does intensive differ from extensive excessive self-defense?
Intensive excessive self-defense refers to an overreaction within the temporal bounds of the ongoing attack. The defense goes beyond what is necessary, while the attack is still ongoing or at least not fully completed. In contrast, in extensive excessive self-defense, the exceeding of self-defense boundaries lies in the fact that the defense occurs after the actual attack has ended, so at that moment there is no longer a self-defense situation. § 33 StGB favors only the “intensive” excess; the extensive excessive self-defense is not privileged under current law and can be relevant only under aspects of a mistake excluding culpability (§ 17 StGB) or for lack of intent.
What are the legal consequences if excessive self-defense is present?
If the court determines excessive self-defense under § 33 StGB, the perpetrator is not punished for intentional bodily harm, homicide, etc., because the law excuses the act. This is not a justification, but rather ground for excluding punishment due to the special mental state of the perpetrator in the self-defense situation. Guilt is excluded due to the exceptional psychological condition. However, negligent offenses remain punishable if committed—for example, in the case of a negligent outcome—since § 33 StGB only applies to intentional acts. Civil claims, such as for damages by the victim, may also persist depending on the circumstances.
What significance does the perpetrator’s awareness of wrongdoing have in excessive self-defense?
Although the perpetrator in excessive self-defense exceeds the legal boundaries of self-defense, he regularly lacks a clear awareness of wrongdoing or at least the ability to control his actions due to the prevailing emotional state. This is characteristic of excused excessive self-defense under § 33 StGB, since the overstepping is directly due to the emotional exceptional situation. The perpetrator can no longer reflect on or avoid the legal consequences of his actions. However, the lack of awareness of wrongdoing only leads to excuse if it actually results from confusion, fear, or shock; otherwise, the act remains punishable.
