Definition of the Term ‘Final Rescue Shot’
The ‘final rescue shot’ refers, within German police and security law as well as criminal law, to a deliberately aimed shot at a person, which will, with high probability, be fatal. This means is used exclusively to avert an acute danger to a person’s life that cannot otherwise be prevented when less severe means of averting danger are unavailable or insufficient. Thus, the final rescue shot serves as the ‘ultima ratio’ of police action. The term is legally influenced, although statutory regulations often refer to targeted firearm use or ‘firearm use with lethal effect.’
Legal Basis of the Final Rescue Shot
Police Law
General Powers under the Police Laws of the Federal States
The legal prerequisites for the use of firearms by the police for the purpose of averting present danger to a person’s life or physical integrity are set out in detail in the police laws of the German federal states. Although these regulatory systems vary, they generally contain provisions that, in extreme exceptional cases, explicitly permit the targeted use of firearms – including with fatal effect.
According to section 63 of the Saxon Police Law (SächsPolG), for example, the use of firearms against persons is generally prohibited, but is declared permissible under special circumstances, such as in order to ‘avert a present danger to the life of another.’ The other police laws of the states contain similar provisions. Application is always subject to the principle of proportionality.
The Standard of Proportionality
The use of firearms, notably the final rescue shot, is legitimate under the principles of police law only if
- no less severe means is available (principle of subsidiarity),
- the measure is necessary to avert the danger, and
- is proportionate to the imminent danger.
These principles specify the prohibition of excess enshrined in Article 2 (2) of the Basic Law (right to life and physical integrity) and Article 1 (1) of the Basic Law (human dignity); their particular significance must be observed in the case of the final rescue shot.
Criminal Law Assessment
Justification Grounds: Self-Defense and Necessity to Assist Others
The final rescue shot can be justified under criminal law as self-defense (section 32 of the Criminal Code) or as necessity to assist others. Self-defense exists when an imminent unlawful attack upon a legally protected interest (life, physical integrity) is imminent or underway. If there is no milder means to avert the danger, the use of lethal force is fundamentally justified (requirement, section 32 of the Criminal Code).
Justifying State of Necessity
If there is no self-defense situation, but there is a danger to the life of third parties or uninvolved persons, a final rescue shot may be permissible under the narrow requirements of the justifying state of necessity (section 34 of the Criminal Code). Here, a balancing of interests must always be carried out, whereby the life saved generally outweighs the one placed at risk, provided that there are absolutely no alternatives.
Culpable Excess and Limits
Criminal justification is excluded if the use of firearms exceeded the measure of necessity or constituted an abuse of the right to self-defense (‘excessive self-defense’, section 33 of the Criminal Code). Also, heightened requirements apply to the subjective element: The actor must primarily be motivated by the intention to save, not by retribution or other motives.
Constitutional Framework Conditions
Human Dignity and Proportionality
Articles 1 and 2 of the Basic Law (GG) place the life and dignity of the individual under the full protection of the constitution. The final rescue shot thus exists at the tension point between the protection of the perpetrator’s life and that of potential victims. The Federal Constitutional Court regularly emphasizes the duty of the least injurious defense, with killing as a last resort (‘ultima ratio’) only being legitimate when all less severe measures have been exhausted (BVerfGE 115, 118, so-called Aviation Security Act).
Binding to Law and Justice
The final rescue shot is only permissible if based on a clear legal foundation or justified by supra-legal reasons (such as self-defense). Legal gaps must not be filled by extensive action; every use of firearms is subject to strict prior legal review and subsequent control.
Practical Conditions and Implementation
Training and Practical Implementation
Preparation for a final rescue shot takes place in the context of police basic and advanced training. These modules cover tactical approaches, legal boundaries, and psychological preparation. Essentially, the final rescue shot is provided for as an absolute exception in operational guidelines and is subject to the highest thresholds. The decision is generally made by the highest-ranking police officer available on site, with documentation requirements and a subsequent review by internal as well as external investigative bodies being mandatory.
Documentation and Investigative Procedures
After a final rescue shot has been fired, an investigation must be launched in every case, reviewing both the legality and proportionality. This ensures due process of law and the protection of the rights of those affected. In addition to investigative authorities, the public prosecutor’s office, internal audits, and in some cases independent control bodies are often involved.
Conclusion and Significance in the German Legal System
In German law, the final rescue shot functions as the last, extremely rare, and strictly regulated means of the state’s monopoly on force. Its application occurs only under the strictest conditions and court-proof oversight to protect both the lives of potential victims and the right to life of the affected person. Detailed regulations in police and criminal law as well as in the constitutional context ensure that the final rescue shot remains the absolutely last resort for saving lives.
Further Regulations and Literature
- Sections 32, 33, 34 of the Criminal Code (StGB)
- Art. 1, Art. 2 of the Basic Law (GG)
- the respective police laws of the federal states, e.g. § 61 PolG NRW, § 63 SächsPolG
- Federal Constitutional Court, Ruling on the Aviation Security Act (BVerfGE 115, 118)
- Permanent commentary literature on police law and criminal law, relevant administrative regulations
This article provides a comprehensive and legally sound overview of the prerequisites, limits, and constitutional implications of the final rescue shot in German law.
Frequently Asked Questions
When is the final rescue shot legally permissible?
The final rescue shot is an exceptionally severe measure in both police and criminal law, permissible only under strict legal conditions. It is the last attempt to avert an acute, otherwise unavoidable danger to the life of third parties. Legally, the final rescue shot is supported by the principles of self-defense law (section 32 of the Criminal Code) and state police enabling acts (for example, section 63 (4) PolG NRW). It is only permissible if there are no other, less severe means to avert the danger. The measure must be proportionate to the imminent danger (principle of proportionality). Furthermore, the final rescue shot must always be applied as a last resort after all milder means are exhausted or ruled out from the outset. It must also be ensured that measures for warning and admonition were in fact not feasible beforehand without endangering the protected interests.
What legal requirements must be met before applying a final rescue shot?
Before a final rescue shot can be taken, it must be imperatively examined whether there is in fact an imminent, significant danger to the life or physical integrity of one or more persons and whether the shot is the only means available to avert the danger. The decision must be based on a sound risk assessment and responsible weighing of interests. The relevant official must also determine whether the target person can be unequivocally identified as the perpetrator to exclude the mistaken killing of uninvolved persons. Legally, it is also required that – wherever possible – a clear warning or threat of shooting must precede the action, unless this is not possible in the particular case because doing so would endanger the life of others. Subsequent judicial review, especially within the framework of a public prosecutor’s investigation, is mandatory.
What role do fundamental rights play regarding the final rescue shot?
The use of the final rescue shot represents a serious encroachment on the fundamental right to life and physical integrity of the target person as protected by Article 2 (2) sentence 1 of the Basic Law. However, the legislator has clarified that this fundamental right can be restricted under strict legal requirements in order to protect the lives of others. Particularly relevant are the principle of practical concordance, which requires a balancing of the conflicting fundamental rights (for example, the life of the victim versus that of the perpetrator), and the principle of proportionality. Even under the European Convention on Human Rights (ECHR), interference with the right to life is only permitted in cases of absolute necessity (self-defense or necessity to assist others).
What are the legal consequences for the police officer after using a final rescue shot?
Police officers who carry out a final rescue shot act in accordance with their legal duties and are generally justified as long as all requirements have been met. However, in every case, a public prosecutor’s investigation is initiated for suspected homicide to review the lawfulness of the shot. If a justification (such as self-defense or necessity) exists, there is no criminal liability. Independently, an internal investigation may be conducted, and disciplinary consequences may follow if service regulations or applicable law were violated.
What documentation obligations exist in connection with the final rescue shot?
All circumstances that led to the use of a final rescue shot must be documented by the officers in detail. This particularly includes the initial situation, all considerations regarding proportionality, the measures taken to avert the danger, and the precise reasoning as to why no milder means were available. The documentation forms the basis for later reviewing bodies (courts, public prosecutor’s office, internal investigations) and is indispensable for the traceability and transparency of police actions.
How do national and state regulations differ regarding the final rescue shot?
While the law of self-defense is uniformly regulated in the Criminal Code (§ 32 StGB), the specific prerequisites for the final rescue shot from a police law perspective differ depending on the respective state police law. Some states contain explicit regulations on the final rescue shot, while others rely on general provisions regarding the use of firearms against persons. In all cases, however, the prohibition of excess, the principle of proportionality, and compliance with all constitutional requirements apply. The federal police regulate the final rescue shot similarly to most of the states, though sometimes with differing details in execution and follow-up.
