The Concept and General Definition of Necessity (Notstand)
Necessity is a central legal concept in German law as well as in many other legal systems. It describes an exceptional situation in which the commission of an otherwise unlawful act may be justified to avert an imminent danger. The legal assessment and statutory requirements of necessity differ depending on the area of law, with criminal law and civil law each providing specific provisions. Necessity constitutes an important legal justification and forms part of the so-called supra-statutory justifications.
Necessity in Criminal Law
Legal Basis (§ 34 StGB)
In German criminal law, necessity is specifically regulated in § 34 of the Criminal Code (StGB). This provision grants exemption from punishment to a person who commits an unlawful act in order to avert an imminent, otherwise unavoidable danger to a legally protected interest of himself or another. It is always important to observe the requirements of appropriateness and proportionality.Wording of § 34 StGB:
“Whoever, in an imminent, otherwise unavoidable danger to life, limb, liberty, honor, property, or another legal interest, commits an act to avert the danger from himself or another, does not act unlawfully if, when weighing the conflicting interests, especially the legal interests involved and the degree of imminent danger, the protected interest substantially outweighs the affected one. However, this applies only as long as the act is an appropriate means to avert the danger.”
Requirements for Justifying Necessity
- Imminent Danger:
It is required that there is a current danger to a legally recognized interest. The danger must be of such a nature that immediate action appears necessary.
- Danger Otherwise Unavoidable:
The act must be the only means of averting the danger. The person obliged to act must not have a less intrusive possibility of averting the danger.
- Weighing of Interests:
In weighing the interests, it must be examined whether the interest protected by the act substantially outweighs the interest affected. Courts assess this by considering the individual circumstances of each case.
- Appropriateness of the Means:
The measure taken to avert the danger must be suitable, necessary, and proportionate to the imminent danger.
Limits of Justifiable Necessity
Not every case of necessity justifies an otherwise punishable act. For instance, the killing of innocents to save others is typically not justified by necessity. The humane weighing of the individual legal interests involved is crucial.
Difference: Necessity and Self-Defense
While self-defense (§ 32 StGB) presupposes defense against a current unlawful attack, necessity concerns a danger but not an attack by a person. Therefore, necessity is broader in scope than self-defense.
Necessity in Civil Law
Legal Basis (§§ 228, 904 BGB)
In civil law, the German Civil Code (BGB) regulates different forms of necessity:
- Defensive necessity (§ 228 BGB):
Here, damaging or destroying another person’s property is permitted if it is necessary to prevent imminent danger that originates from the property itself.
- Aggressive necessity (§ 904 BGB):
Permits acting upon another’s property if it is necessary to avert an imminent danger and the interest protected substantially outweighs the affected interest.
Origin and Legal Consequences
By applying the provisions on necessity in civil law, the unlawfulness of the act is removed. However, compensation claims may arise, such as appropriate compensation if another’s interest has been adversely affected.
Necessity in Criminal Procedure and Police Hazard Prevention Law
Special rules regarding necessity also exist in police law and administrative offences law. Here, the focus is on hazard prevention for public safety and order. According to state police laws, necessity is viewed as an authorization to intervene in the rights of uninvolved persons in dangerous situations, if this is required to prevent substantial harm.
The Supra-statutory (Extra-statutory) Necessity
In addition to codified necessity provisions, there exists the so-called supra-statutory necessity. It is recognized by case law particularly in extreme situations where a statutory regulation is lacking but action appears required based on general legal sensibilities – for example, in averting a major catastrophe.
Distinguishing from Other Legal Grounds for Justification
Necessity must be distinguished from other justifications, such as self-defense, the principle of consent, or standard police measures. While self-defense requires an unlawful attack, in the case of necessity an imminent danger to legally protected interests is sufficient.
State of Necessity in Public Law
Necessity is also addressed in various statutory provisions in public law, especially in constitutional law. This includes, for example, the so-called legislative state of necessity or measures in the case of defense pursuant to the Basic Law (Art. 115 GG et seq.).
International Aspects of Necessity
The concept and legal consequences of necessity are found not only in German law, but also in international law and in many national legal systems. In international law, for example, necessity is recognized as a sovereign right of a state to protect itself from existential crises by means of exceptional measures.
Summary
Necessity is a complex legal concept embedded in criminal, civil, and public law, encompassing different aspects and specific legal requirements. The focus is always on balancing conflicting legal interests, where the protection of overriding interests can justify unlawful acts in individual cases. The precise application of necessity rules requires careful examination of all factual and legal requirements.
Frequently Asked Questions
Are there different types of necessity in German law?
In German law, a distinction is generally made between justifying necessity (§ 34 StGB) and excusing necessity (§ 35 StGB). Justifying necessity allows for the commission of an act that would normally be punishable if it averts an imminent danger to an important legal interest and the protected interest substantially outweighs the affected one. This justifies the act and precludes criminal liability. In contrast, excusing necessity applies where the perpetrator indeed fulfills all elements of an offense but acts without culpability for special human reasons, for example, to avert danger from himself, a relative, or a person close to him. Here, culpability is excluded, but the offense remains fulfilled. In civil law, necessity rights (§ 228 BGB: defensive necessity and § 904 BGB: aggressive necessity) also exist, regulating under which conditions another’s property may be damaged or used to avert danger. Each type of necessity has its own requirements and legal consequences, which must be clearly distinguished from one another.
When is an act legally permissible in a state of necessity?
An act is legally permissible within the framework of necessity if it fulfills all statutory requirements of the relevant necessity provision. For justifying necessity (§ 34 StGB), this first requires an imminent danger to a legal interest, such as life, limb, liberty, property, or other important interests. The act must be necessary, meaning it is the least severe means to avert the danger. Additionally, a weighing of interests in favor of the protected interest must take place—the saved legal interest must substantially outweigh the impaired interest. Finally, the act must not be motivated by an inappropriate motive. In the case of excusing necessity (§ 35 StGB), it suffices if there is an imminent danger for oneself, a relative, or a close person; however, here only culpability is excluded, not the unlawfulness of the act. In civil law, with necessity (§§ 228, 904 BGB), proportionality and unavoidability of damage to or use of property must especially be observed.
What is the significance of the weighing of interests in necessity?
The weighing of interests is a central element, particularly in the case of justifying necessity (§ 34 StGB). In each individual case, it must be examined whether the protected interest substantially outweighs the impaired interest. This means, for example, that saving human lives is generally considered more important than the protection of property. Courts have a certain scope for assessment, but must apply objective standards. It is not sufficient for the protected good to be of roughly equal value; rather, the act of averting the danger must clearly protect overriding legal interests. If the weighing of interests leads to a different outcome, i.e., there is no clear preponderance of the protected interest, justification by necessity does not apply and the act remains punishable.
How is the role of necessity regulated in civil law?
Specific regulations for necessity exist in civil law under §§ 228 and 904 BGB. In defensive necessity (§ 228 BGB), a person may damage or destroy another’s property to avert a danger emanating from that property from himself or another, provided that the damage is not disproportionate. Aggressive necessity (§ 904 BGB) permits the use or damage of another’s property to avert an imminent danger if the danger cannot otherwise be averted and the resulting damage is not disproportionate to the imminent danger. In contrast to criminal law, in civil law the obligation to pay damages often remains—the person performing the act under necessity may only demand to be released from claims for damages if he acted within the statutory requirements.
What impact does a state of necessity have on possible claims for damages?
The effects of necessity on claims for damages depend crucially on the legal context (criminal law or civil law) in which necessity is applied. In civil law (§ 228, § 904 BGB), if the statutory requirements and proportionality are met, a claim for damages by the injured party can generally be opposed to the acting party, but the latter is then entitled to be released from the obligation to pay damages or to compensation in accordance with § 906 para. 2 sentence 2 BGB. This means that, in cases of permitted necessity, the perpetrator often has no or only limited liability for damages. In criminal law, when justifying necessity is present, criminal liability ceases, but civil claims for damages may still exist, especially if the requirements of civil necessity law are not met.
Does a state of necessity have to be reported or proven immediately?
There is no direct legal obligation to immediately report a state of necessity. Nevertheless, especially in the context of investigations and court proceedings, proving a state of necessity may become essential if the perpetrator seeks to rely on such justification or excuse. This requires evidence or at least substantiated submissions regarding the danger situation, the necessity, and proportionality of the act. In the absence of such evidence, reliance on necessity is generally rejected. In cases of deadly or serious consequences, comprehensive documentation is advisable to secure one’s legal position.
How does necessity relate to the right of self-defense?
The right of self-defense (§ 32 StGB) and the law of necessity differ fundamentally in principle and structure. Self-defense is always directed against an unlawful human attack, while necessity can be used to avert dangers not caused by humans, such as natural disasters or animal attacks. In self-defense, weighing of interests is not required; every necessary action to repel an unlawful attack is generally permitted. By contrast, necessity always requires a balancing of interests and the principle of proportionality. Thus, the right of self-defense represents a more extensive legal justification compared to the law of necessity.
