What does self-defense mean?

The criminal-law basis for self-defense is found in
Section 32 of the German Criminal Code (StGB). According to
this provision, anyone who commits an act required by self-defense does not
act unlawfully.

Self-defense is the necessary defense against a present unlawful attack on
oneself or another person.

If the statutory requirements are met, an act that would otherwise be
punishable — for example, as bodily harm — can therefore be justified.

The requirements for self-defense

Justification through self-defense essentially requires four elements:

• There is an attack on a legally protected interest.
• The attack is present (ongoing or imminent).
• The attack is unlawful.
• The defense is necessary and warranted.

In addition, the acting person must act with the intent to ward off the
attack. Mere retaliation against or punishment of the attacker is not
covered by self-defense.

What counts as an attack?

An attack is considered to be a threatened violation of legally protected
interests caused by human conduct. Protection extends not only to life and
physical integrity. Depending on the situation, interests such as freedom,
property, the right to exclude others from one’s premises, or sexual
self-determination may also be affected.

Not every unpleasant, rude, or provocative behavior already constitutes an
attack within the meaning of self-defense law. What matters is whether a
violation of a protected legal interest is imminent or already occurring.

When is an attack “present”?

An attack is present when it is directly imminent, currently taking place,
or still ongoing. Defensive action must not begin merely because an attack
is generally feared. At the same time, it must not continue once the attack
has definitively ended.

An attack that has already been fully completed generally no longer
constitutes a self-defense situation. Anyone who uses force afterward may no
longer be acting in defense, but out of revenge or retaliation.

However, what matters is not simply whether the attacker is, for example,
lying on the ground. The decisive factor remains whether a present attack
still emanates from them. Even a person on the ground may, under certain
circumstances, continue the attack.

When is an attack unlawful?

An attack is unlawful if the attacked person is not legally required to
tolerate it. A person acting lawfully does not thereby generally become an
unlawful attacker.

This must be distinguished from the question of whether the attacker acts
culpably or is criminally responsible. Children, persons lacking criminal
responsibility, or persons who are recognizably mistaken can, in principle,
still carry out an unlawful attack. Such circumstances can, however, play an
important role in determining what defensive action is warranted.

What does “necessity aid” (Nothilfe) mean?

The right to self-defense is not limited to defending oneself. Anyone who
wards off a present unlawful attack on another person is providing what is
known as necessity aid (Nothilfe).

In principle, the same requirements apply to necessity aid as to self-defense.
However, the helping person must assess the situation with particular care.
As far as it is discernible, the actual or presumed will of the attacked
person must also be taken into account.

Necessity of the defense

A defensive action is necessary if it is suitable to end the attack
immediately and definitively, or at least to weaken it. If several equally
effective options are available, the relatively mildest equally suitable
means must generally be chosen.

However, the attacked person cannot be required to rely on a means of
defense whose success is uncertain or which would expose them to an
additional significant danger.

What action was necessary is assessed based on the specific situation. This
depends, among other things, on the following circumstances:

• the nature and intensity of the attack,
• the physical capabilities of those involved,
• recognizable weapons or numerical superiority,
• spatial conditions and possible escape routes,
• the defensive means available and actually usable,
• the speed and dynamics of the situation.

The legal assessment is made from the perspective of the attacked person at
the moment of the defense. It must not be judged solely on the basis of what
would, in hindsight, have proven sufficient.

Is there a duty to flee from an attack?

Under German self-defense law, there is generally no general duty to flee
from an unlawful attack. This does not mean, however, that insisting on a
physical confrontation is always legally unproblematic.

In particular situations, stepping back, protective defense, or seeking
state assistance may take priority. This can play a role especially in
cases involving recognizably non-culpable attackers, children, close
personal relationships, or a confrontation that was culpably brought about
by the defender.

Regardless of the legal situation, leaving a dangerous situation early
generally remains the safest decision, provided this is possible without
additional risk.

No rigid proportionality between attack and defense

Self-defense law does not apply a rigid proportionality test requiring the
attack and the defense to be exactly equal in severity. The attacked person
is not required to limit themselves to an ineffective or dangerous reaction.

What matters instead are the necessity and
warrantedness of the defense. Nevertheless, the right to
self-defense is not unlimited. In the case of an unbearable or gross
disproportion between the protected legal interest and the consequences of
the defense, the defense may, exceptionally, not be warranted.

It would therefore be wrong to conclude, from the principle of no rigid
proportionality, that unlimited severe force may be used against even the
most minor attack.

Warrantedness: socio-ethical limits of self-defense

Even a necessary defense can, in individual cases, be legally restricted.
Such restrictions are summarized under the concept of
warrantedness (Gebotenheit).

Case law in particular recognizes the following categories of cases:

• a gross disproportion between attack and defense,
• attacks by recognizably non-culpable persons,
• attacks by children,
• particular close relationships or protective relationships,
• culpable or intentional provocation of the self-defense situation,
• minor attacks with especially severe consequences of defense.

Classification always depends on the specific individual case. The
categories mentioned do not automatically lead to a complete loss of the
right to self-defense. Often, however, a graduated response may be
required: first stepping back, protective defense, or a warning, and only
afterward a more intensive defense, provided this remains necessary.

Provocation of self-defense

A person who deliberately provokes a confrontation in order to induce the
other person to attack, and then uses force under the guise of self-defense,
generally cannot rely on an unrestricted right to self-defense.

Even unintentional but culpable provocation can restrict the right to
self-defense. However, not every insult, disagreement, or unreasonable
behavior automatically leads to a loss of the right to self-defense. What
matters is the nature, weight, and context of the provocation.

When does the right to self-defense end?

The right to self-defense ends as soon as the attack has definitively
ended. This may be the case, for example, when the attacker clearly gives
up, flees, has been disarmed, or is otherwise no longer able or willing to
continue the attack.

Every further use of force must then be assessed anew under the law.
Strikes, kicks, or other actions that serve only to punish or retaliate are
generally no longer justified by self-defense.

The overall actual situation must always be considered. A brief
interruption, a step back, or the attacker falling does not necessarily
mean that the attack has already definitively ended.

Excessive self-defense under Section 33 StGB

If a person exceeds the limits of self-defense, this may constitute what is
known as excessive self-defense (Notwehrexzess). Under
Section 33 StGB, a person is not punished if they exceed the limits of
self-defense out of confusion, fear, or fright.

This provision does not mean that every overreaction in a conflict
situation goes unpunished. In particular, a connection is required between
the excess and a legally recognized so-called asthenic affect, such as
confusion, fear, or fright.

Anger, rage, revenge, or intent to punish do not, by themselves, generally
lead to exculpation under Section 33 StGB.

Mistakenly assumed self-defense: putative self-defense

If a person mistakenly believes they are being attacked, even though no
actual self-defense situation exists, this is referred to as
putative self-defense.

In such a case, there is no genuine justification under Section 32 StGB.
However, the mistake may affect criminal responsibility. The legal
assessment depends in particular on what exactly the person was mistaken
about and whether the mistake was avoidable.

Examples for general orientation

The following examples serve solely to illustrate the concepts. They do not
permit a conclusive legal assessment of any specific incident.

Warding off an ongoing physical attack

If a person is suddenly struck and wards off the attacker with a suitable
action, this action may be justified by self-defense. The prerequisite is
that it serves to end the still-ongoing attack and is necessary and
warranted.

Force after the attack has ended

If the attacker definitively gives up and no further danger emanates from
them, no further strikes or kicks may follow. Such actions may be
prosecuted as independent criminal offenses.

Intervening on behalf of another person

Anyone who observes another person being directly physically attacked may,
in principle, provide necessity aid. Here too, the intervention must be
suitable, necessary, and warranted.

Merely suspected danger

A vague uneasy feeling, or the mere assumption that a person might possibly
attack later, does not by itself constitute a present self-defense
situation. Appropriate precautions remain permissible, however, such as
gaining distance, leaving the location, and contacting the police.

Why prevention and de-escalation should come first

Even though the law permits physical defense under certain conditions, the
safest confrontation is generally the one that can be avoided.

Responsible self-defense therefore does not begin with a physical
technique. It includes, in particular:

• recognizing dangerous situations early,
• creating distance and being aware of escape routes,
• setting clear verbal boundaries,
• not escalating conflicts through one’s own behavior,
• specifically asking other people for help,
• contacting the police early if needed.

In a values-oriented martial arts school, it is therefore not only about
physical skills. Equally important are self-control, awareness, a sense of
responsibility, risk assessment, and a level-headed approach to conflict.

What can matter after a self-defense incident

After a physical confrontation, the first few minutes can be significant
for the later clarification of events. To the extent the situation allows,
it may be advisable to:

• leave the danger area,
• contact the police and, if necessary, emergency medical services,
• assist injured persons without putting oneself at renewed risk,
• identify possible witnesses,
• have injuries and damaged items documented,
• seek qualified legal advice before giving a detailed statement.

Even a person who, from their own perspective, defended themselves
lawfully may initially be treated as a suspect. This does not automatically
mean that their defense was unlawful. It is the task of the investigating
authorities to examine the facts and the requirements of self-defense.

Conclusion: self-defense also means legal responsibility

Self-defense makes it possible to defend oneself or others against a
present unlawful attack. What matters is not whether the defense had
exactly the same intensity as the attack. What matters is whether it was
necessary and legally warranted to ward off the attack.

The right to self-defense ends as soon as the attack has ended. Retaliation,
punishment, or deliberately continued force are not covered by it. At the
same time, no one is required to choose an uncertain or obviously
unsuitable form of defense and thereby expose themselves to significant
danger.

Good self-defense therefore combines awareness, prevention,
de-escalation, self-control, and the ability to act appropriately in an
unavoidable dangerous situation.