(to be examined in case of illegality)
I. Emergency situation
1. Attack on legal property
an attack is any violation of legally protected individual goods or interests by a human act.
An attack is present when it is imminent, is taking place or is still ongoing. (No permanent danger!!)
The attack is unlawful if the attacker is not justified or the victim is not obliged to tolerate it.
II. Act of Self-Defense
A defensive action is required which, in the most gentle way with the mildest means available, can effectively and definitively fend off the attack, whereby the attacked person does not have to engage in the risk of insufficient defensive action.
It is sufficient that the act of defense at least complicates the attack in its concrete form.
b) Mildest means
Among several equally effective options, the one that causes the least damage must be chosen.
a) Exceptionally, the right of self-defense is subject to restrictions.
This is the case if:
- in the case of innocent attackers or a personal relationship with the attacker
- Negligent provocation of the attack
Then the “three-stage model” applies:
- First dodge / ask for help from third parties. If this is not possible
- Proportionate protection defense. If this is not possible
- Proportionate defense.
b) Exceptionally, the right of self-defense is not given.
This is the case with:
- a glaring mismatch between the consequences of the defense and the threat of injury to the attack
- Minor attacks (only proportional defense is allowed)
- Intentional provocation
An intentional provocation is committed by a person who, in the sense of the dolus directus 1st degree, challenges an attack by illegal conduct in order to be able to injure the opponent under the guise of the externally given objective emergency situation. (A textbook case from criminal law is the self-defense provocation case)
III. Subjective element of justification
Will to defend
The perpetrator must counter the attack with the will to defend himself, i.e. have the intention to fend off or at least mitigate the attack in the sense of a purposeful intention.