Is it legal to kill someone in self-defense?
Self-defense - the sharp sword of criminal law
One often reads in the press that people appeal to self-defense. In this article we have summarized for you everything that can be included in self-defense and how far you can go in individual cases when exercising self-defense. The following explanations are deliberately formulated as vividly as possible in order not to overload you unnecessarily with legal terminology.
The legal basis
The legislature has regulated self-defense under criminal law in Section 32 of the Criminal Code. According to this, anyone who commits a crime that is required by self-defense is not acting unlawfully. The law further describes what is meant by self-defense: Self-defense is the defense required to avert a current unlawful attack on yourself or on another. This makes it clear that you are not only allowed to exercise self-defense to defend yourself, but that you can also help someone else who is being attacked in self-defense (this is called emergency aid).
When you can defend yourself with self-defense
You can always exercise self-defense if you or another person are attacked (for example assault, robbery, attempted homicide, etc.). But the right to self-defense is not limited to purely physical attacks. You can also exercise self-defense if, for example, your property or domiciliary rights are threatened. Self-defense is therefore always permissible if one of your protected legal interests (e.g. body, life, property, honor, etc.) is threatened.
Caution: no self-defense in the event of provocation
Your right to self-defense is restricted, however, if you have intentionally provoked the attack on yourself, for example by deliberately provoking the attacker until he attacks you, so that you can then injure him under the guise of self-defense. Your right to self-defense is considerably restricted here and, depending on the extent of the so-called self-defense provocation, can even be completely excluded.
So you can defend yourself in self-defense
If you are in a self-defense situation, you are allowed to defend yourself against the attack. The legislature requires you to use the mildest means available to you. However, this "mildest means" must then also be effective enough to reliably and definitively ward off the attack. So you are not obliged to try a milder remedy on the off chance first to see whether the attacker can be stopped with it. It is also crucial which self-defense means are available to you in the specific situation. Nor do you have to choose a defense that puts you at risk of injury. The principle applies: the right to self-defense is a sharp sword! Contrary to a widespread false assumption, German self-defense law does not have a principle of proportionality. The means with which you are allowed to defend yourself must only not be grossly disproportionate to the threat situation (for example fatal shot at young people who steal cherries from their own tree). Otherwise, in self-defense - as long as it is the mildest means available to you - everything is actually allowed that is suitable to ward off the attack on you safely and definitively. By the way, fleeing the attackers is not a milder means of defense. So you don't have to be accused of having escaped too. After all, the right does not have to give way to the wrong.
The use of weapons is also permitted
If you are attacked, you may also use armed force to defend yourself against the attacker if this is the mildest means available to you. Imagine that you are attacked at night in your house by two masked perpetrators who are threatening you with a gun. You have pepper spray and a sharp gun in your bedside table drawer. The use of pepper spray would certainly be the milder means from the point of view of the robbers. However, there is no question that the chances of success of using pepper spray are rather moderate in view of the specific attack situation. The pepper spray may be able to bring tears to the eyes of the attackers. But there is also the high risk that the perpetrators will act even more brutally against you. In the present case, the pepper spray would certainly not be suitable for safely and permanently ending the attack on you. In the present case, the use of firearms through self-defense would be justified.
Can I kill in self-defense?
In short: yes, you may also kill the perpetrator as part of the exercise of self-defense if this is the only effective means of defense. However, especially when using weapons, it must be checked whether the weapon can also be used in a non-lethal way (for example a shot in the air or in the attacker's leg, a stab with a knife in the arm). This would then be a milder means compared to shooting or stabbing the attacker in the chest. But here, too, the following applies: a warning shot in the air or a shot in the leg must then also be suitable in the specific situation to repel the attack safely and definitively. In our example, however, this is questionable. Because you are facing two perpetrators who you want to rob by force of arms. If you first shoot in the air or in the leg of one of the two attackers, you run the risk of the attackers making use of their firearms themselves. In the present case, you should therefore easily fire (possibly) fatal shots at the attackers as part of the exercise of self-defense.
The emergency defense excess - when panic is leading you
Victims of a crime may react in a panic to an attack. Here it can happen that you are in a clear self-defense situation, but out of panic you resort to a means of defense that you should not have chosen in the exercise of self-defense. Example: You are physically far superior to the perpetrator, but in a panic you seriously injured him with a knife. The legislature is aware that many people in a self-defense situation can no longer have a really clear thought. After all, most people's adrenaline rushes to the tips of their hair in such a situation. If one were to impose on each victim, under threat of criminal liability, to first make a rational decision as to which type of defense is lawful and which not, one would ask for the impossible. For this reason there is § 33 StGB, which regulates the so-called emergency excess: If the perpetrator (the term "perpetrator" refers to the self-defense victim) exceeds the limits of self-defense out of confusion, fear or horror, he will not be punished. The legislature has the risk that the victim in a panic with inadmissible means consciously imposes itself on the attacker. After all, it is also the reason why the victim had to defend himself in the first place.
Attention: the judge who is alien to life
Whoever defends himself against an attacker and kills him in the process, unfortunately, has to reckon with another imponderable: the alien judge. Then the actual victim is quickly turned into a perpetrator. Unfortunately, there are always cases in which courts bluntly refuse to use the specific self-defense situation as a yardstick for examining a right to self-defense, but rather bluntly the pattern "First a warning shot in the air, then the shot in the leg and only in the extreme Exceptionally a shot in the chest "are arrested. In doing so, they overlook the fact that only the specific situation in which the attacked was found should be taken into account. Consequently, a warning shot or a shot in the attacker's leg can only be requested if this type of defense is actually suitable for stopping the attacker permanently. In addition, it is often not taken into account which psychological effects an attack can have on the person concerned and that the attacked person often freezes in fear himself (very readable in this context: Erb, On the erosion of the right to self-defense through non-life judicial allegations, NStZ 2011, 186). Imagine you are walking home in the dark and are being harassed by a group of young men who threaten you to surrender your valuables. You have a pocket knife with you. In this situation it would be more than alien if you were to be asked to swing the knife threateningly through the air. Because if you did this, you would probably be rid of the knife faster than you would like. Rather, the right to self-defense allows you in such a situation to take advantage of the element of surprise and stab directly. In such a situation you are also not limited to stabbing one of the attackers in the arm in the hope that the entire group will then leave you alone.
Can I also use an illegal weapon in self-defense?
When exercising self-defense, it does not matter whether you illegally possess the object with which you are defending yourself. For example, you can use an illegal firearm or other prohibited weapon to defend yourself against an attack, as long as this means of defense is the mildest means available to you. However, you may be at risk of criminal proceedings for possession of a prohibited item. However, it does not matter to the question of whether your defense was covered by self-defense. There are even cases conceivable in which the possession of an illegal weapon itself can be justified. This comes into consideration, for example, if you purchased the illegal weapon for your protection due to a specific threat situation, because there was no other (milder) protection option. A competent defense lawyer will always take this into account in his defense considerations.
The police are investigating even though I was only defending myself
If you have injured or even killed the attacker in self-defense, the police will also initiate investigations against you. At first this is not unusual. However, you should keep in mind that you are the suspect in this preliminary investigation. Therefore, the same advice applies to you that a criminal defense attorney would give any other suspect: do not make a headless testimony to the police, but speak to a criminal defense attorney first. He will examine your case and defend you accordingly against the investigating authorities. The competent help of a defense lawyer is often essential, especially in self-defense cases. It is not enough for you to appeal to the police or the court in self-defense, as this is often dismissed as a protective claim. If the police are investigating you even though you only defended yourself, you are welcome to contact our criminal defense law firm in Karlsruhe at any time. You can reach us by phone at ☎ (0721) 976 646 80.
Just & Partner Kriegsstrasse 212 76135 Karlsruhe ☎ (0721) 976 646 80
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