Concept and Introduction to Putative Self-Defense
Die Putative Self-Defense is a term from criminal law and refers to the mistaken assumption of a self-defense situation. The perpetrator acts under the belief that it is necessary to defend himself against a current and unlawful attack, even though objectively no such situation exists. Putative self-defense thus constitutes a special case of the error regarding the factual elements of a justification, and it has far-reaching significance for criminal responsibility.
Distinction: Self-Defense, Self-Defense Situation, and Putative Self-Defense
Definition of Self-Defense
According to Section 32 (2) of the German Criminal Code (StGB), self-defense is the defense that is necessary to avert a present unlawful attack from oneself or another. The classic prerequisites are:
- A present, unlawful attack
- A necessary and appropriate act of defense
Lack of Self-Defense Situation in the Case of Putative Self-Defense
Unlike actual self-defense, putative self-defense objectively lacks a self-defense situation. The perpetrator nonetheless believes himself to be in such a situation because he misjudges or incorrectly perceives facts. The characteristic feature of putative self-defense is thus the factual error regarding the prerequisites of self-defense.
Legal Dogmatic Classification
Error Regarding the Elements of a Justification
In German law, putative self-defense is considered a so-called Error Regarding the Elements of a Justification. It is an error regarding the actual circumstances of a recognized ground for justification (in this case: self-defense). This error leads the actor to assume that he is justified.
Distinction from Error Regarding the Existence of a Justification
The error regarding the elements of a justification (putative self-defense) must be distinguished from a error regarding the existence of a justification . In the case of an error regarding the existence of a justification, the perpetrator is not mistaken about facts, but merely about the existence of a legal ground for justification. Example: a perpetrator believes that simple insults justify an act of self-defense, which is not legally correct. In contrast to putative self-defense, there is no reference to facts here.
Criminal Consequences of Putative Self-Defense
Error of Law or Error of Fact
From a legal perspective, in the context of putative self-defense, it is examined whether an error of fact (§ 16 StGB) or an error regarding the elements of a justification (§ 17 StGB, analogously) exists. According to the prevailing opinion, putative self-defense is treated as an error regarding the elements of a justification.
Effects on Criminal Liability
If the perpetrator acts out of a mistake about the existence of a self-defense situation, he lacks the so-called intent of wrongdoing. According to § 16 (1) sentence 1 StGB, the intent-based liability for the unlawfulness lapses. The perpetrator is then not criminally liable for an intentional offense due to the lack of intent. However, liability for negligent offenses usually remains possible, provided the specific criminal provision covers negligence.
Illustrative Application
A classic example is the case in which the perpetrator defends himself against a supposed attacker who later turns out to be an uninvolved third party. If the mistake was unavoidable, criminal liability for intentional bodily injury or other intentional offenses is excluded.
Order of Examination and Application in Practice
Elements of the Offense and Unlawfulness
Putative self-defense is assessed during criminal proceedings within the context of culpability . The perpetrator’s conduct fulfilling the statutory offense is, objectively, unlawful; however, the assumption of a ground for justification can affect, in individual cases, the presence of intention or negligence.
Requirements for the Mistake
In order to exclude liability based on intent, the mistake must have been unavoidable . If the mistake was attributable to the perpetrator, punishment for negligent conduct may follow. The benchmark is the diligence of a conscientious person in the same situation.
International References and Legal Situation Abroad
Comparable provisions exist in other legal systems as well. In Anglo-American law, putative self-defense is referred to as ‘putative self-defense’ and is sometimes treated similarly.
Significance for Practice and Case Law
Case law regularly affirms that putative self-defense is an important corrective in the area of intentional criminal liability. It protects good-faith actors from unjust prosecution, provided there is a mistake of fact regarding the existence of a self-defense situation.
Overview of the Most Important Aspects
In summary, putative self-defense is a key concept in criminal law for understanding the distinction between intentional and negligent conduct in connection with a mistakenly assumed self-defense situation. Its consistent application serves to protect legal certainty and to balance the interests of the perpetrator with the victim’s interest in criminal protection.
Further Topics:
Frequently Asked Questions
What are the legal consequences of a mistake regarding the existence of a self-defense situation (putative self-defense)?
A mistake regarding the existence of a self-defense situation—the so-called putative self-defense—has significant effects on the criminal responsibility of the actor under German criminal law. Pursuant to § 16 (1) StGB, a mistake about actual circumstances that would fulfill the requirements of justifying self-defense is considered an error of fact. This means that if the perpetrator incorrectly assumes he is being attacked, but objectively no such situation exists, he acts without intent as to the unlawfulness of his action. If the mistake was unavoidable, criminal liability for an intentional offense is excluded. The perpetrator can therefore not be punished for intentional conduct, although liability for negligent conduct remains if negligent commission is punishable and the mistake could have been avoided.
What is the distinction between putative self-defense and an error regarding the elements of a justification?
Putative self-defense constitutes a subcategory of the error regarding the elements of a justification. In ‘classic’ putative self-defense, the perpetrator is mistaken about the actual existence of a self-defense situation (he believes he is being attacked, although there is no attack objectively), whereas in the general error regarding the elements of a justification, the mistake concerns the actual prerequisites of a ground for justification. In both cases, the perpetrator mistakenly believes he is justified in acting, even though this is not actually the case. Legally, the mistake is treated under § 16 (1) StGB, provided it concerns actual circumstances. If, however, the perpetrator is mistaken about legal prerequisites, it constitutes an error of law pursuant to § 17 StGB.
How does putative self-defense affect criminal liability for negligence?
Assuming putative self-defense precludes liability for intentional offenses if the mistake was unavoidable. However, liability for a negligent offense remains possible if the conduct of the perpetrator was objectively and subjectively negligent. This means that the perpetrator neglected the required standard of care necessary to properly assess the actual circumstances. In such cases, it is examined whether the mistake was objectively and subjectively avoidable. If this is affirmed, the perpetrator may be held liable for a negligent offense.
Can errors in the perception of events give rise to putative self-defense?
Yes, perceptual errors that lead the perpetrator to assume a self-defense situation, even though none exists objectively, can constitute putative self-defense. This includes especially mistakes regarding the situation (for example, failing to recognize that an apparent threat is in fact not one), the participants, or the attack. The requirement remains that the mistake is about facts and not a misinterpretation of the law. The circumstances must be such that they appear to amount to a self-defense situation, even if that is not actually the case.
What significance does the recognizability of the mistake for third parties have?
For the assessment of criminal responsibility, whether third parties could recognize the mistake is generally irrelevant. What matters is whether the perpetrator, subjectively based on the circumstances, believed himself to be in a self-defense situation and whether this mistake was avoidable or unavoidable for him. However, objective recognizability can be relevant in the assessment of negligence, for example, if an average third party would have correctly assessed the situation. Objective standards therefore play a role in examining a breach of the subjective duty of care.
What role does the standard of a ‘reasonable observer’ play when examining putative self-defense?
When assessing putative self-defense, the standard of a reasonable observer is often used to determine whether the perpetrator’s mistake was avoidable. If the perpetrator failed to recognize the actual circumstances contrary to his duties, and a reasonable person in the same situation could have avoided the mistake, the mistake is considered avoidable. This means that the assessment of avoidability is not purely subjective, but is based on the care that an average careful person would exercise. Only an unavoidable mistake leads to action without intent and thus to the exclusion of criminal liability for an intentional offense.
Can putative self-defense lead to complete exemption from punishment?
Yes, in certain cases putative self-defense can lead to complete exemption from punishment. If there is an unavoidable error regarding the elements of a justification, the intentional violation of the law is excluded. If the alleged offense cannot be committed negligently, or negligent commission is not punishable, then all criminal liability is excluded. Only if the mistake was avoidable and a corresponding offense by negligence exists, can liability arise. Putative self-defense can therefore, in case of an unavoidable mistake, result in complete exemption from punishment.
