Self-Defense in Germany: Legal Guide & Criminal Defense

The legal basis for the right of self-defense is standardised in Section 32 of the German Criminal Code (StGB):

(1) Anyone who commits an act that is required by self-defense is not acting unlawfully.

(2) Self-defense is the defense required to avert a present unlawful attack from oneself or another.

Self-defense is a ground of justification which renders an act unlawful. Anyone who acts in justified self-defense does not commit a criminal offence. This distinguishes self-defense from mere grounds for mitigation of punishment or grounds for excuse, where punishment is merely waived.

While self-defense describes the defense of one’s own legal interests, it is also possible to act in the defense of another. Legally, both cases are covered by Section 32 StGB and are largely subject to the same requirements. The legislator equates the defense of a third party with self-defense by expressly permitting the defense against an attack ‘against oneself or another’. In both cases, the same legal requirements apply to the immediacy and unlawfulness of the attack as well as to the necessity of the act of defense.

A legitimate self-defense situation exists if there is a current unlawful attack. These requirements must be met cumulatively: An attack is any imminent violation of legally protected interests caused by human behaviour. All individual legal interests are protected, such as

• Life and physical integrity,
• freedom,
• property and possessions,
• honour,
• domiciliary rights,
• General personal rights, in particular the right to one’s own image and word.

The attack must be present. This is the case if it:

• is immediate (imminent danger) or
• is currently taking place or
• is still ongoing (ongoing threat).

Neither a future threat nor an attack that has already been completed justifies an act of self-defense. In the case of permanent offences such as deprivation of liberty or trespassing, there is a present danger as long as the unlawful situation continues.

The attack must be objectively unlawful, i.e. it must violate the legal system. The decisive factor is the objective unlawfulness, not the culpability of the attacker. Therefore, self-defense is also generally permissible against persons who are incapable of culpability, such as children, the mentally ill or those who are heavily intoxicated, although special socio-ethical restrictions must be observed here.

The act of defense must meet the following criteria to be considered justified self-defense. The defense must be necessary to ward off the attack. This means

• The defense must be suitable to end the attack immediately and definitively.
• The means chosen must be the mildest means available to safely repel the attack. In principle, the following applies: The attacked person does not have to choose the mildest means if its effectiveness is doubtful. He may resort to the safest means necessary for an effective defense.
• The act of self-defense must also be reasonable.

The right of self-defense can be severely restricted in certain situations. Case law has defined several groups of cases in which the right of self-defense is restricted:

• Attacks by Persons who are Incapable of Culpability or Reduced Culpability: In the case of attacks by children, persons with intellectual disabilities, severely intoxicated persons or other persons who are incapable of culpability, there is an increased duty to evade or to choose milder means of defense. A defense with life-threatening means is only permissible as a last resort.
• Attacks in the Case of Minor Offences: In the case of minor attacks on property or other petty offences, the person attacked must generally first try to evade or call for help before resorting to dangerous means of defense:
• Provocation in Self-Defense: Anyone who has provoked an attack intentionally or through gross negligence can only invoke self-defense to a limited extent. Depending on the nature and severity of the provocation, the right of self-defense may be completely waived or severely restricted.
• Special Close Relationships: In close personal relationships, especially between family members, there may be an increased duty to evade or protect according to case law.
• Excess in self-defense: One speaks of an excess of self-defense when the limits of self-defense are exceeded:
  • “Intensive Excess of Self-Defense”: In the case of an intensive excess of self-defense, a disproportionately strong means of defense is used, although milder means would have sufficed.
  • “Extensive Excess of Self-Defense”: Extensive excessive use of self-defense occurs when the defense is continued even though the attack has already been repelled or ended.
  • According to Section 33 StGB, an excess of self-defense is exempt from punishment if the perpetrator has gone beyond the limits of self-defense out of confusion, fear or fright. This is an important provision that considers the human reaction in extreme stress situations.

It is often particularly difficult to establish self-defense in the case of physical altercations. Here, the question often arises as to who the attacker was and whether there may have been a provocation of self-defense.

Domestic violence often leads to situations of self-defense. For a self-defense situation to exist, there must also be a present attack in the specific situation. The question regularly arises as to whether it was possible and reasonable to avoid the attack. The specific circumstances of each individual situation must always be examined on a case-by-case basis.

In the case of property offences such as theft or damage to property, self-defense is generally permissible. However, the courts place high demands on proportionality here. Injury to the attacker’s life or physical integrity to protect property is only justified in certain cases, for example if the attacker does not respond when called upon, milder means of defense are not available or have been unsuccessful and the property in question is particularly valuable, the loss of which would mean a significant impairment of the defender’s livelihood.

The question of whether self-defense may also be exercised preventively is the subject of controversial legal debate. In principle, preventive self-defense against future attacks is not permitted, as the attack must be ‘present’. The situation may be different in the case of permanent threats, where an unlawful situation persists. In such cases, an act of self-defense may be justified if the unlawful situation could turn into a concrete injury at any time. Examples of this include secret photography by a stalker, an unlawful deprivation of liberty or the unlawful withholding of an object. Case law recognises that the present nature of the attack can exist for the entire duration of the unlawful situation.

Putative self-defense (also: alleged or imagined self-defense) is when the perpetrator mistakenly assumes a self-defense situation that does not objectively exist.

Example: A person feels attacked by a supposedly threatening gesture and strikes, although the supposed attacker did not actually have any hostile intent.

In such cases, the German Federal Court of Justice has consistently held that the person allegedly acting in self-defense cannot be punished for an intentional offence. However, if the error was avoidable, the person could be liable to prosecution for an offence of negligence, such as negligent bodily harm.

A successful defense in self-defense cases in Germany requires

• Early legal advice: a specialist criminal defense lawyer should be consulted from the very first contacts with investigating authorities.
• Comprehensive clarification of the facts: All details of what happened must be carefully reconstructed.
• Strategic plea: A well-thought-out plea in self-defense can be decisive.
• Preservation of evidence: Witness statements, injury documentation, crime scene photos and other evidence must be preserved.
• Expert reports: In complex cases, forensic or technical expert reports can help to reconstruct the exact sequence of events.