Concept and Legal Classification of Self-Defense
Self-defense is a central legal term in German criminal law that governs the defense against an ongoing, unlawful act of aggression by means of an appropriate defensive action. Self-defense is regulated in § 32 of the Criminal Code (StGB) and, under certain conditions, allows for a statutory justification—meaning that the person acting in self-defense does not act unlawfully. Self-defense is relevant both in criminal law and civil law, for example in the context of claims for damages, and also finds equivalents in public law, such as in police and regulatory law.
Legal Basis
§ 32 Criminal Code (StGB)
§ 32 StGB Self-defense: (1) Whoever commits an act that is required by self-defense does not act unlawfully.
(2) Self-defense is the defense that is necessary to avert a present unlawful attack from oneself or another.
Requirements of Self-Defense
For a self-defense situation to exist and for the legitimation of a self-defense act, several requirements must be met.
Self-defense Situation
The self-defense situation describes the conditions under which a defensive act is recognized as self-defense. These requirements are:
Present Attack
An attack is any threat to legally protected interests by human conduct. “Present” means that the attack is imminent, has already begun, or is still ongoing, but not yet completed. An attack is no longer present if it has already ended and there is no risk of repetition.
Unlawfulness of the Attack
The attack must be unlawful, i.e., in contradiction to the legal order. An attack is not unlawful, for example, if police intervention occurs on the basis of statutory powers; in such cases, the person concerned does not have the right to self-defense.
Self-defense Act
The defensive act must be necessary and appropriate to avert the attack.
Necessity
The manner of action must be suitable for the immediate repulsion of the threatening harm and, among several equally effective options, must be the mildest means. There is no requirement to evade or retreat—the so-called ‘right not to yield to injustice’ applies.
Appropriateness
Defense is appropriate if it does not lead to a gross disproportion between attack and defense. A limitation may exist in cases where particular circumstances suggest an abuse of the right of self-defense, such as in so-called ‘gross disproportion’ or provocation of the attack.
Subjective Element of Justification
In addition to the objective conditions of self-defense, the actor must act with awareness of the self-defense situation and with a defensive intent. Lack of self-defense intent can result in criminal liability—for example, in actions motivated purely by anger or revenge.
Limits of Self-Defense
Excessive Self-Defense (§ 33 StGB)
If someone acts beyond the required measure due to confusion, fear, or fright, this is referred to as ‘excessive self-defense.’ In such cases, under certain conditions, exemption from punishment may apply.
Restrictions on the Right of Self-Defense
The right of self-defense may be restricted in various constellations, for example:
- Attack Provocation: Anyone who deliberately provokes an attack may, in certain cases, not be able to invoke self-defense.
- Ineffective Attack by Children or Persons Lacking Guilt: Defensive actions against these persons are only permissible under strict conditions.
Justification Grounds Similar to Self-Defense
Aid in Defense
Aid in defense (Nothilfe) is a case of self-defense directed at defending another person. Anyone who assists a third party in a self-defense situation enjoys the same justification.
State of Necessity
To be distinguished from self-defense are the grounds for justification also found in the Criminal Code, namely the justifying and excusing state of necessity (§ 34, § 35 StGB). Here, the focus is not on defense, but on averting a present danger.
Self-Defense in Civil Law
Self-defense is also important in civil law, for example under § 227 of the Civil Code (BGB). According to this, an act necessary for defense is not unlawful.
Self-Defense in the International Context
The concept of self-defense is anchored in numerous legal systems, though its specific form may vary. In international law as well, the principle of self-defense is recognized, for example, in the context of the collective security system.
Significance and Practical Relevance
Self-defense is a fundamental legal principle for the protection of individual and societal interests. It protects the holder of rights in particularly dangerous situations from the accusation of a legal violation and preserves public security interests. The correct application and interpretation of the right of self-defense are regularly the subject of judicial decisions.
Literature and Further Sources
- Criminal Code (StGB), § 32, § 33
- Civil Code (BGB), § 227
- Commentary: Fischer, StGB; MüKoStGB
- Textbooks: Wessels/Beulke/Satzger, Criminal Law General Part
- Case Law: Decisions of the Federal Court of Justice (BGH)
This article provides a comprehensive overview of the term self-defense, highlights the legally relevant aspects, and offers a systematic classification within German law.
Frequently Asked Questions
When does a present attack exist in the context of self-defense?
A present attack, as required for self-defense, exists when there is an imminent, already commenced, or still ongoing unlawful violation of legally protected interests. An attack begins as soon as the aggressor makes a specific and imminent threat of a violation of rights or initiates such action. It ends when the danger to the protected right—such as life, physical integrity, property, or freedom—has definitively passed, i.e., when there is no ongoing danger. Self-defense acts are legally permissible only during this acute threat situation. Mere fears of a future attack are insufficient, as are reactions after the act of aggression has concluded; in such scenarios, self-defense is excluded. The decisive factors are always the objective circumstances, taking into account the specific threat situation.
What requirements must be met for a lawful act of self-defense?
Three essential requirements must be met for justified self-defense: First, there must be an unlawful attack on a right capable of being defended by self-defense. Second, the defensive act must be directed against the attacker and necessary to avert the attack. The defensive measure used must be suitable to end the attack completely or at least make it more difficult. The defense may not exceed the necessary limits; an overproportionality ban applies. Third, the defense must not be obviously disproportionate (appropriateness), even though under German law, a strict proportionality test is generally not conducted in the narrower sense, but social-ethical restrictions—such as in cases of attacks by children or clearly innocent persons—must be taken into account.
What does the requirement of necessity mean in self-defense?
Necessity, in the context of self-defense, means that among several available and suitable means of defense, the mildest must be chosen that can repel the attack safely and conclusively. It must be weighed whether avoidance, mere protective behavior, or a less intensive defense measure would have sufficed to fend off the attack. Only if such alternatives are not available or clearly inadequate may a more intensive means of defense be used. The assessment of necessity is always made ex ante—that is, from the perspective of an objective observer at the time of the defense, without subsequent evaluation of whether another means would have sufficed.
What role does the awareness of the actor play in self-defense?
Awareness of acting in a situation of self-defense is required for the subjective element of justification. The actor must recognize that they are in a danger situation and that their action is repelling an attack. An excess of self-defense, in which the defender exceeds the limits of necessity due to confusion, fear, or fright, can, under § 33 StGB, in certain cases remain unpunished if the excess is based on these excusable affective states. If, however, there is no awareness of the self-defense situation and no intent to defend, justification by self-defense is excluded.
How is self-defense legally assessed against blameless or clearly helpless attackers?
The so-called ‘social-ethical restriction’ of self-defense applies in cases of attacks by blameless, clearly helpless, or particularly protected attackers, such as children, the mentally ill, or those acting without fault. In these cases, the appropriateness of self-defense must be carefully examined. While self-defense is not fundamentally excluded by law in such cases, higher requirements are imposed on the limits of defensive actions. If, for example, it is possible to avoid the attack without significant risk to oneself, evasion is generally required rather than active resistance. Case law requires the application of the “self-defense limitation” principle of leniency in such constellations.
Is there a time limit for acts of self-defense?
Yes, the admissibility of self-defense is strictly limited in time to the period of the present attack. This begins with imminent danger and ends with the elimination of the threat to the respective legal interest. Acts of self-defense performed before the onset of the attack (‘preventive self-defense’) or after its termination (‘acts of revenge’ or acts of retaliation) are not covered by the right of self-defense and are thus unlawful. Any use of force outside the acute danger situation falls under other legal assessments, for example the right of self-help under §§ 229 et seq. BGB or, where applicable, as a state of necessity.
Which legal interests may be protected by self-defense?
German self-defense law permits the defense of all individual legal interests of the person attacked or a third party. These include, in particular, life, bodily integrity, personal freedom, property, and other legally protected interests. Self-defense in favor of third parties (aid in defense) is expressly permitted, provided that the person could legally defend themselves and there is no consent by the defender to forgo defense. The limits of permissible protective action are determined solely by the specific self-defense situation, regardless of whether material assets or strictly personal rights are affected.
