Definition and Fundamentals of Putative Necessity
The Concept Putative necessity describes, in criminal law, a situation in which a person mistakenly believes they are in a state of necessity under Section 34 of the German Criminal Code (StGB), although, objectively, no such necessity exists. The term is derived from the Latin word ‘putare’ (to believe, to suppose, to consider) and thus refers to a so-called ‘imagined necessity.’
The relevance of putative necessity arises in the context of the examination scheme for culpability under criminal law, especially in the doctrine of mistake, as the person’s conduct is considered justifiable from their perspective, even though no actual justification exists.
Distinction: Necessity, Excessive Self-Defense, and Putative Necessity
Necessity according to Section 34 StGB
A genuine necessity exists when there is an imminent danger to a legally protected interest capable of justification, and the act of necessity is an appropriate means to avert this danger. This is a ground for justification that removes the wrongfulness of an offense.
Putative necessity
In contrast, putative necessity is based solely on the assumption or mistaken belief that a situation of necessity exists. The actor erroneously believes that there is an imminent danger, even though, objectively, no such danger is present.
Distinction from Excessive Putative Self-Defense
Putative necessity must be distinguished from excessive putative self-defense (allegedly exceeded self-defense) as well as from putative self-defense (mistakenly assumed self-defense situation). In putative necessity, the actor believes they must protect themselves or others from danger by means of an act of necessity; in putative self-defense, they (mistakenly) see themselves as subjected to an unlawful attack.
Legal Classification of Putative Necessity
Mistakes in Criminal Law
Putative necessity is a classic case of the mistake of fact regarding justification. The actor is mistaken about the actual existence of a ground for justification (§ 34 StGB), but not about the legal limits of their action. It is, therefore, a mistake concerning the factual prerequisites for a justification.
Mistake of Justifying Fact under § 16(1) Sentence 1 StGB
Putative necessity falls under the mistake of fact regarding justification, which according to § 16 StGB excludes intent if, at the time of the offense, the perpetrator is unaware of a circumstance that is part of the statutory offense. Since the existence of a situation of necessity is not an element of the offense but a ground for justification, the doctrine of mistake is applied analogously.
Effects on Culpability and Criminal Liability
In cases of putative necessity, the wrongfulness of the act generally does not cease to exist, since there is objectively no necessity. Depending on the doctrine of mistake applied, however, intent as an element of culpability is affected. The prevailing view applies in these cases the rules of the so-called mistake of fact regarding justification so that in cases of unavoidable mistake, focus must be placed on § 17 StGB (mistake of law), which can lead to the exclusion of culpability if the mistake was unavoidable for the actor.
Distinction from Error of Permission (Mistake of Law)
The mistake of fact regarding justification must be distinguished from the mistake of law (error of permission). In putative necessity, the mistake concerns factual circumstances (the existence of danger), while the error of permission relates to the legal assessment (wrong assumption about the extent of a justification ground).
Examination Structure and Legal Consequences
Factual Elements of the Act
First, it must be established whether the measures taken by the actor fulfill the statutory definition of an offense.
Justification – Examination of Actual Necessity
Within the examination of whether a ground for justification according to § 34 StGB applies, it must be analyzed whether there was actually an imminent danger to a legally protected interest capable of necessity. In cases of putative necessity, this is precisely not the case.
Intent and Treatment of Mistake
It must be clarified whether intent covered all objective elements of the offense. Since the perpetrator believes they are acting to avert danger, they lack intent regarding the commission of an unlawful act, provided the mistake of fact regarding justification is applied analogously as per § 16(1), sentence 1 StGB.
Culpability
If, after applying the mistake rules, a mistake of law within the meaning of § 17 StGB remains, it must be examined whether the mistake was avoidable. An unavoidable mistake leads to an exclusion of culpability, while an avoidable mistake results in liability with mitigating circumstances.
Dogmatic Classification and Dispute of Opinions
Theories on the Treatment of Putative Necessity
Jurisdictions and legal literature offer various approaches on how putative necessity should be dogmatically classified:
- Strict Intent Theory: No mistake of fact regarding justification exists, so intent persists and only culpability under § 17 StGB is excluded, provided the mistake was unavoidable.
- Limited Culpability Theory: The mistake of fact regarding justification eliminates intent. The perpetrator is treated as if they had actually acted lawfully.
- Combination Approaches: A distinction is made as to whether the mistake could have been subjectively or objectively avoided.
The prevailing opinion currently follows the limited culpability theory, according to which intent is excluded if the mistake was unavoidable.
Practical Significance and Examples
Putative Necessity in Case Law
In legal practice, situations of putative necessity mainly occur when fending off perceived dangers, such as during rescue operations, averting hazards, or supposed emergency aid, where the objective requirements of genuine necessity are not met.Example: A person believes that a child is in mortal danger inside a locked car during summer and breaks the window to rescue it. However, the child had already gotten out safely beforehand, so there was no danger. This is a classic case of putative necessity.
Summary
Putative necessity represents a scenario significant in the doctrine of mistake under criminal law, where a person erroneously assumes an actual emergency situation and acts to avert danger, although no objective danger exists. The assessment of the mistake is crucial for criminal liability. According to the prevailing view, intent is excluded in case of an unavoidable mistake, making the act not punishable. If the mistake was avoidable, criminal liability may arise due to an avoidable mistake of law, potentially with mitigating circumstances.
Putative necessity is therefore a central topic of the doctrine of mistake and plays an important role in the interplay between the protection of legal interests, security, and justice within criminal law.
Frequently Asked Questions
Who bears the burden of proof in cases of putative necessity?
In the case of putative necessity, i.e., a mistakenly assumed emergency, the defendant generally bears the burden of proof that they believed themselves to be in the relevant danger situation. The evidence primarily relates to the internal perception of the perpetrator at the time of the act and the actual circumstances that might have triggered this mistake. It is sufficient if the court is convinced of the existence of the mistake, or at least has considerable doubt, such that ‘in dubio pro reo’ (in case of doubt, for the accused) applies. However, the burden of presentation does not mean that the defendant must objectively prove that a danger actually existed, but rather that their subjective belief in such a danger is understandable and can be based on concrete circumstances.
How does putative necessity differ from excessive self-defense or putative self-defense?
The main difference lies in the fact that putative necessity refers to a (merely) presumed justifying necessity under § 34 StGB, whereas putative self-defense relates to a (merely) presumed self-defense situation. While excessive self-defense describes exceeding the boundaries of an actually existing self-defense situation (§ 33 StGB), putative necessity involves the perpetrator’s mistake concerning the actual existence of a necessity situation. In both putative cases, the requirements of the relevant justification do not actually and objectively exist, so no justification arises; but in putative necessity—just as in putative self-defense—a so-called mistake of fact regarding justification (§ 17 StGB analogously) is assumed, which can excuse the perpetrator due to their mistake about the conditions for a justifying situation.
What are the legal consequences of assuming putative necessity?
If putative necessity is assumed, that is, if the perpetrator believed themselves to be in a situation comparable to necessity, the act remains unlawful due to the lack of the objective prerequisites for necessity. However, generally intent is excluded—as long as the mistake concerns the factual requirements of the justification. This is treated as a mistake of fact regarding justification (§ 16(1) sentence 1 StGB), resulting in exclusion of liability for intentional offenses. However, prosecution for negligence is possible if the respective criminal offense (e.g., negligent bodily harm) allows negligent commission and it is imputable to the perpetrator that they could have avoided their mistake. Only if the perpetrator also acted in breach of duty and the mistake was avoidable, is punishment for negligence possible.
How is putative necessity examined in the structure of a criminal law opinion?
In the opinion, after examining the objective and subjective elements of the offense, it must be established whether, by exception, a ground for justification applies. If no necessity situation objectively exists and the perpetrator still relies on necessity, it must be examined whether a mistake regarding a justifying necessity—i.e., putative necessity—exists. This mistake is to be addressed under ‘culpability,’ specifically as a mistake of fact regarding justification (§ 16(1) sentence 1 StGB analogously). It must be shown how and why the perpetrator was mistaken and whether the prerequisites for such a mistake existed. The result may then be exclusion of intent, so that only negligent liability is to be considered.
What role does the duty of care play in putative necessity?
The duty of care is particularly relevant in putative necessity for the question of liability for negligent conduct. If the perpetrator’s mistake was avoidable because they ignored objectively recognizable circumstances or failed to adequately inform themselves about the situation, they may be accused of negligence. Conversely, there is no negligence if the mistake was unavoidable, i.e., even a conscientious and dutiful person could have assumed a necessity situation under the circumstances. Therefore, a careful weighing of facts and circumstances from the perspective of a reasonable third person is always required.
Can putative necessity be relevant to all criminal offenses?
In principle, putative necessity can become relevant whenever the respective offense allows a ground for justification under § 34 StGB. This includes, in particular, offenses where a situation of necessity may be conceivable, such as bodily injury and property offenses. However, a prerequisite is that the act was, from the perpetrator’s perspective, necessary to avert a (merely supposed) danger, and the perpetrator was thus mistaken. In genuine special offenses or criminal provisions without justification options, putative necessity, however, plays no role.
What significance does the perpetrator’s personal motivation have in putative necessity?
The perpetrator’s motivation is significant for the legal assessment of putative necessity to the extent that it allows conclusions to be drawn about the seriousness and plausibility of the mistake. What matters is that the perpetrator acts with rescue intent and truly believes they must avert danger to a legal interest. A merely pretended, not genuinely assumed situation of necessity is insufficient; rather, the perpetrator must be convinced they are acting within the framework of a justifying necessity—this may also be indirectly inferred from their conduct before, during, and after the act. Careful examination of the motives for action and thought processes is therefore essential.
