Term and Definition of Means of Defense
The term means of defense refers in the German legal system to all permissible means and actions by which a party, especially in civil and criminal proceedings, defends itself against attacks or accusations or repels a claim. Means of defense are indispensable for the right to be heard and for safeguarding a fair trial. They include all procedural options and tactical measures by which a party under attack presents its position, refutes allegations, enforces legitimate claims, or fends off unfounded demands.
Types and Examples of Means of Defense
Substantive and formal means of defense
Means of defense are divided into substantive und formal means of defense:
- Substantive means of defense refer to the substantive presentation of factual and legal reasons that oppose the asserted claim or the raised accusation (e.g., objections or defenses, submission of statements on the matter).
- Formal means of defense relate to the procedure itself and include all procedural rights and actions, such as raising objections to procedural errors, requests for extensions of deadlines, or doubts about the admissibility of the claim.
Examples of means of defense in civil proceedings
In civil proceedings, means of defense include, among others:
- Raising objections (e.g., defense of limitation)
- Disputing the opposing party’s submissions
- Submission and request for evidence (e.g., documents, witnesses)
- Filing motions (e.g., for dismissal of the claim)
- Asserting counterclaims (e.g., counterclaim, set-off)
- Procedural motions (e.g., suspension of proceedings, inspection of records)
Examples of means of defense in criminal proceedings
In criminal proceedings, the following means of defense are particularly used:
- Statement on the indictment
- Filing evidentiary motions (e.g., designation of witnesses, expert evaluation)
- Requesting suspension or interruption of the main hearing
- Assertion of legal remedies (objection, appeal, revision)
- Objection to procedural violations (e.g., rules of evidence exclusion)
- Examination of witnesses or experts
Legal Foundations
Statutory Regulations
Means of defense are protected and regulated by numerous provisions in German law. The most important include:
- Code of Civil Procedure (ZPO): Provisions on the rights of the parties (in particular §§ 128 et seq. ZPO)
- Code of Criminal Procedure (StPO): Rights of the accused and the defense (e.g., §§ 137–152 StPO)
- Basic Law (GG): Article 103(1) GG guarantees the right to be heard as a fundamental right of defense
- European Convention on Human Rights (ECHR): Article 6 ECHR secures the right to a fair trial and defense
Significance in the context of the right to be heard and procedural principles
The right to use means of defense is an expression of the procedural principle of the right to be heard. Each party must be given the opportunity, both in civil and criminal proceedings, to represent its interests and refute allegations through submissions of fact, motions, and evidence.
To ensure the effectiveness of the principle of equality of arms, there are extensive protective mechanisms in favor of the parties, especially the accused in criminal proceedings.
Admissibility and Limits of Means of Defense
Not every desired means of defense is also admissible in proceedings. Admissibility is determined by the general procedural legal principles:
- Timeliness: Means of defense must generally be asserted within the time limits prescribed by law. Late means of defense may be rejected by the court if they delay the resolution of the dispute (§ 296 ZPO).
- Relevance: The means of defense must relate to the subject matter of the dispute and be suitable to refute the asserted claims, accusations, or attacks.
- Legality: Means of defense that are inadmissible or abusive (e.g., false statements, obstruction of evidence) are disregarded or may be sanctioned.
Distinction from Means of Attack
Means of attack are the counterpart to means of defense. While means of attack serve to assert one’s own claims or to present an offensive case, means of defense serve exclusively to repel an attack or defend against accusations. In practice, a close interconnection is often observed, for example when objections against asserted claims at the same time serve as a means of attack to enforce one’s own rights (e.g., set-off).
Importance in Various Types of Proceedings
In civil proceedings
In civil litigation, means of defense enable comprehensive and appropriate clarification of the facts and legal position from both parties’ perspectives. They thus play a central role within the duty of the court to clarify the facts (§ 139 ZPO).
In criminal proceedings
The right to means of defense is a fundamental component of a fair criminal trial. The accused is entitled to freely and comprehensively defend against a criminal charge and to use all available legal options.
In administrative proceedings
Means of defense are also available to affected individuals in administrative proceedings, for example by raising objections to decisions or submitting evidence.
Case Law and Current Developments
Courts have emphasized the importance and scope of means of defense in numerous rulings. The Federal Constitutional Court protects the ability to take means of defense as an essential part of the right to be heard. In recent years, the discussion about digitalization and its impact on the effective use of means of defense has increasingly come into focus.
Summary
means of defense are indispensable for effective legal protection and ensuring a fair procedure in German law. They include all permissible procedural and substantive measures by which a party in civil, criminal, or administrative proceedings repels attacks or defends claims. The use of means of defense is protected by numerous laws, but is subject to certain procedural boundaries. Their appropriate application is fundamental for the enforcement of procedural rights and the maintenance of the right to be heard.
Frequently Asked Questions
Can possession of means of defense be punishable in Germany?
Possession of means of defense can be punishable in Germany if acquisition, possession, or carrying them is prohibited by the Weapons Act (WaffG) or other relevant regulations. For example, firearms and certain dangerous knives such as butterfly knives, switchblades, or push daggers are subject to strict legal restrictions. The Weapons Act also distinguishes between license-required, prohibited, and freely available means of defense. While some items such as simple personal alarms or flashlights may be freely purchased and possessed, others, such as irritant spray devices (pepper sprays), must at least bear the ‘BAM test mark’ and may be used solely for animal repellent purposes, provided no firearms permit is present. Possession of prohibited items (e.g., brass knuckles, blackjacks) is generally punishable and can be sanctioned with fines or imprisonment. In addition, seemingly harmless everyday objects can be classified as weapons in certain contexts, and their carrying or use may be criminally relevant.
What must be considered when carrying means of defense in public?
Carrying means of defense in public is subject to strict regulations in Germany. First, a distinction is made between mere possession (e.g., at home) and carrying (i.e., taking outside one’s own secure property). Transport of many means of defense, such as blank-firing weapons or irritant sprays, is only allowed under certain circumstances. Carrying blank-firing weapons that bear the PTB test mark in public requires a so-called ‘small firearms license.’ If one does not possess this and still carries such a weapon, it is a criminal offense. For carrying knives, there are restrictions regarding blade length and type of knife; for example, fixed-blade knives with a blade length over 12 cm and certain switchblades and gravity knives may not be carried without ‘legitimate interest.’ Exceptions apply for professional need (e.g., trade) or for traditional customs. Violations may lead to regulatory offenses or criminal charges under the Weapons Act.
What are the legal consequences of misuse of means of defense for self-defense?
The misuse of means of defense can have significant criminal consequences. The use of a means of defense is justified solely within the context of self-defense according to § 32 StGB, i.e., defense against a current, unlawful attack. The principle of proportionality applies: the defensive action must be necessary to stop the attack and must not exceed the level of necessary defense. Exceeding this framework (e.g., using pepper spray against a non-threatening person) may constitute the criminal offense of aggravated assault (§ 224 StGB) or other relevant offenses. The perpetrator can also be held liable under civil law for any resulting damages. The use of prohibited means of defense is always punishable, even in cases of self-defense, since the legal system does not recognize self-defense using a prohibited weapon.
Are there age restrictions for acquiring or possessing means of defense?
The acquisition and possession of means of defense in Germany are subject to age-related regulations. Many means of defense, such as blank-firing weapons or irritant sprays with PTB or BAM test marks, may only be sold to persons over 18 years of age. For knives, there is generally no overall age restriction, although trade is usually limited to adults. Access to prohibited weapons or items (e.g., brass knuckles, electroshock devices without CE certification) is forbidden for both minors and adults. The trade and possession of license-required weapons is only permitted to adults who are reliable, personally suitable, and have been granted the relevant firearms license.
Are means of defense generally prohibited in certain public areas?
Yes, in certain public areas, carrying means of defense is generally prohibited. According to § 42 WaffG, carrying weapons and weapon-like objects at public events (for example, public festivals, fairs, sports events, demonstrations) is strictly forbidden. In addition, many cities and municipalities establish so-called weapons prohibition zones, where carrying weapons and certain dangerous objects is completely forbidden; this often includes railway stations or areas with increased public safety risks. These rules apply regardless of whether one holds a small firearms license or other firearms permits. Violations are prosecuted as administrative offenses or, in the case of dangerous or prohibited items, as criminal offenses.
What are the documentation and labeling obligations regarding means of defense?
For some means of defense, there are documentation and labeling requirements. Blank-firing weapons must bear the PTB test mark issued by the Proof House in order to be legally acquired, possessed, and carried in Germany. Irritant spray devices (pepper sprays) must have the BAM test mark, which confirms that the device is approved solely for animal repellent purposes. When acquiring certain license-required weapons, the holder is obliged to register them with the authorities (e.g., entry in a firearms possession card) and to report any changes (sale, loss). Such obligations do not generally apply to knives, but instructions regarding permitted blade length and design must be observed.
Can I take means of defense abroad for self-defense?
Taking means of defense abroad is subject to special legal requirements and is prohibited or strictly regulated in many countries. Everyone must inform themselves before taking means of defense (such as pepper spray or blank-firing weapons) about the regulations in the country of travel. Many countries do not permit the import or carrying of such items at all or only under certain conditions; violations are often punishable and carry severe penalties. Even transit through other countries with means of defense can cause problems. There are no uniform regulations within the EU, and at the latest upon entry into non-EU countries, carrying should always be avoided. Violating foreign laws can, under circumstances, result in arrest, fines, or imprisonment.
