It is not always easy to distinguish between self-defense and first offense. In any case, the court has the last word when it comes to an action. We would like to give you a brief overview of which paragraphs are relevant in this context and also mention a few court decisions.
Attention: Our content has been carefully prepared, however, legal standards change and some are subject to interpretation. We can not guarantee the following information, for a legally sound advice please consult a lawyer. Its referring to the situation in Germany.
Self-defense in case of an attack
For the sake of simplicity, let’s start with the situation that allows the least leeway: A physical attack on an uninvolved person. Here, it goes without saying that one is allowed to defend oneself. Defending oneself from an attack can still be considered self-defense, but kicking a criminal who is lying on the ground can no longer be considered self-defense.
Self-defense according to §32 StGB(source)
(1) Whoever commits an act that is required by self-defense does not act unlawfully.
(2) Self-defense is the defense necessary to avert a present unlawful attack against oneself or another.
The following videos may also be of help to you:
Threat or coercion
It gets a little more difficult with the mere threat of violence. Of course, you do not have to accept this, but you should not defend yourself directly with a kick. You can only be absolutely safe if you only react to threats with a request to refrain from doing so. However, this is not always easy, because not every threat is made from 20 meters away, but is usually related to other harassment.
Nevertheless, you should keep a calm head and not directly physically defend yourself, otherwise this can have negative consequences for you in the end and you are ultimately the victim in this case. Call in a lawyer and have the facts checked, if necessary, there is a threat or coercion.
Coercion according to §240 StGB(source)
(1) Anyone who unlawfully coerces a person to perform an act, acquiesce in an act or refrain from an act by force or threat of a serious evil shall be liable to a custodial sentence not exceeding three years or to a monetary penalty.
Threat according to §241 StGB(source)
(1) Whoever threatens a person with the commission of a crime directed against him or a person close to him shall be punished by imprisonment for not more than one year or a fine.
One situation that predominantly women get into is sexual harassment. Here you must be very careful with your reaction, otherwise you quickly run the risk of crossing the line of self-defense. This is because touching the buttocks often does not pose a physical threat that would justify self-defense.
Always remember: self-defense is a defense that is necessary to avert an attack. If the perpetrator grabs you and leaves immediately, you are no longer in a self-defense situation, since no further attacks are to be expected. For sexual abuse, of course, the situation is different. When exactly this begins is of course not so clear to grasp, a clear limit we can unfortunately only with difficulty name here.
Sexual coercion; rape §177 StGB(source)
(1) Whoever, against the recognizable will of another person, performs sexual acts on that person or has them performed by that person, or causes that person to perform or tolerate sexual acts on or by a third party, shall be punished by imprisonment for a term of six months to five years.
(2) It shall also be a punishment for a person who performs sexual acts on another person or causes such person to perform sexual acts on or by a third person or causes such person to perform or tolerate sexual acts on or by a third person if
- the perpetrator takes advantage of the fact that the person is unable to form or express an opposing will,
- the perpetrator takes advantage of the fact that the person, due to his/her physical or mental condition, is considerably limited in forming or expressing the will, unless he/she has secured that person’s consent,
- the perpetrator takes advantage of an element of surprise,
- the perpetrator takes advantage of a situation in which the victim is threatened with serious harm if he resists, or
- the perpetrator has coerced the person into performing or tolerating the sexual act by threatening him with a serious evil.
(3) The attempt is punishable.
This is only an excerpt from the paragraph. The minimum penalty increases according to the severity of the sexual assault or whether weapons are used or the victim is injured.
Burglary or trespassingv
For many people, breaking into their own home is an absolute horror scenario that they would never want to experience. Understandably, because there is hardly an attack that penetrates deeper into your privacy. There are cases where the burglars were caught in the act, beaten up or even shot. And you have the right to defend yourself against a burglar, but proportionality must be maintained.
- According to the law of self-defense you are allowed to repel an attack on you, but if the perpetrator immediately takes flight at the sight of you, the attack is usually considered repelled and any further attack on the attacker can be interpreted to your disadvantage.
- Anyone who trespasses on your property or does not comply with a request to leave is trespassing. But there is no reason to harm the person physically and the right of self-defense will most likely not apply.
The paragraph §127 StGB allows to hold the intruder until the police arrives, but do you want to take this risk in an emergency? Instead: Call the police right away or drive the intruder away yourself, but please do the latter without using force.
Preliminary arrest §127 StGB(source)
(1) If a person is caught or pursued in the act, and if he is suspected of fleeing or his identity cannot be immediately established, anyone is authorized to arrest him temporarily, even without a court order. The determination of a person’s identity by the public prosecutor’s office or the officers of the police service shall be determined in accordance with Section 163b (1).
Bullying, unfortunately, presents a very difficult set of facts when we look for the justification of self-defense. Different laws may have been transgressed.
- In the case of “physical” mobbing, i.e. pushing into a corner, pushing around or forcing to the ground, a counter-defense by physical force is possibly still justifiable and also necessary and could be interpreted as self-defense.
- But what about psychological bullying? Insults, slander, spreading false facts? With these points no physical threat goes out and give no cause for the use of force.
This is where the cat bites the tail a bit. On the one hand, you should always choose the mildest means to stop the perpetrator, but if the mild means doesn’t do anything, you can’t just reach for the next one.
The best remedy for bullying in most cases is to get yourself a “group” so that you can compete with the bullying group. Find friends in an association who will stand up for you, then you have the best chance of stopping the bullying. Self-help groups and associations can also offer you support and assistance.
Insult §185 StGB(source)
The insult is punishable by imprisonment for up to one year or a fine and, if the insult is committed by means of assault, by imprisonment for up to two years or a fine.
Defamation § 186 StGB(source)
Any person who, in relation to another person, states or disseminates a fact which is likely to bring him into contempt or to disparage him in public opinion shall, unless such fact is demonstrably true, be punished with imprisonment for not more than one year or a fine, and, if the offence is committed in public or by dissemination of writings (Section 11(3)), with imprisonment for not more than two years or a fine.
Defamation § 187 StGB(source)
Any person who, against his better knowledge, alleges or disseminates an untrue fact in relation to another person which is likely to bring him into contempt or to disparage him in public opinion or to jeopardize his credit shall be liable to a custodial sentence not exceeding two years or to a monetary penalty and, if the offence is committed in public, at a meeting or by disseminating writings (Section 11 (3)), to a custodial sentence not exceeding five years or to a monetary penalty.
Coercion according to §240 StGB(source)
Interesting judgments on the right of self-defense
Camera out of the hand, with private sphere injury
A landlord gained access to the tenant’s apartment and wanted to take photographs. The tenant knocked the camera out of the landlord’s hand
The court says: self-defense because of violation of privacy. To the source
Self-defense with fatal consequence under influence of alcohol
Two acquaintances meet, drink a lot of alcohol and get into a fight. One of them hits repeatedly, the other reacts with a headlock. The thug dies as a result of asphyxiation
The court ruled self-defense and dismissed the charge of intentional bodily harm. To the source
Throwing glass, because of blowing smoke
A woman points out the ban to smokers in a non-smoking area. One of the men blows smoke directly into her face, whereupon she throws the glass in her hand at him
Verdict: self-defense. The blowing of smoke was an insult and bodily injury at the same time. To the source
Exaggerated defense of an attack
A man attacks a married couple and twists the woman’s finger. The husband hits with his fist in the latter’s face, causing the perpetrator to lose even his eye after 3 months.
The verdict: €27,000 in pain and suffering for the attacker, as the husband overreacted based on the situation. To the source
Shot with fatal consequence
A pensioner is attacked, held down and even tortured by a group of youths. They flee after setting off the alarm system of his safe. The pensioner grabs his gun and shoots one of the perpetrators in the back, who dies as a result
Verdict: manslaughter, since the group had already been fleeing when the shot hit. To the source
Unfortunately, there is usually no right or wrong with legal issues, but depends on the individual case. As a rule, however, you can pay attention to your conscience and your feeling. If you are in an emergency situation and you are threatened with harm or harm has been done, then you usually have the right to defend yourself. But emotions are usually a bad advisor, so only to the extent that you are protected.
If you were in such a situation, then we recommend you to contact the police (in urgent cases, of course, call 110 immediately!) and a lawyer. This way you are on the right side and can draw the right consequences from the incident.