Emmili Berendsen
Self-defence is an act necessary to repel an imminent unlawful attack. Self-defence includes the protection of one's own or another person's legal interests from an unlawful attack. Self-defence is a circumstance that excludes the illegality of an act if it corresponds to certain requirements. According to § 28 of the Penal Code, the illegality of an act is excluded if a person repels a direct or immediate illegal attack on his or another person's legal interests, damaging the attacker's legal interests without exceeding the limits of self-defence.
Thus, according to § 28 of the Penal Code, the prerequisite for the emergence of a state of self-defence is an immediate or direct unlawful attack.
An attack is an act of a person that threatens or damages a legal right and is considered an attack according to social understanding. A classic attack is, for example, assault and aggressive behaviour aimed at a person's health or life.
For the state of self-defence to arise, the attack must be unlawful, i.e. contrary to the legal order. According to old jurisprudence, the prerequisites for the state of self-defence were that the attack should correspond to elements of the offence, i.e. an act punishable by law.
Currently, however, the position has changed in judicial practice. Now, the basis for the state of self-defence can be, among other things, an attack that does not correspond to any of the elements of the offence. Thus, an unlawful attack does not have to be punishable as a misdemeanor or a crime, but it is sufficient if it intensively damages or threatens legal rights and is contrary to some provisions existing in the legal system. As a result, not only physical violence but also other activities that contradict some provisions can be considered an unlawful attack. Such a norm can be, for example, a violation of a personal right arising from section 1045 paragraph 5 of the Law of Obligations.
As previously stated, violation of personal rights is not only physical violence against a person. An attack that results from a person and creates a state of self-defence for another person can also be another activity that is not physically violent towards the person. Therefore, humiliating a person's honor and dignity, verbal abuse, irritation, spreading false information about a person, intruding into the private sphere or taking unwanted photos are also considered an unlawful attack. Such cases provide a basis for the implementation of self-defence, i.e. damage to the attacker's legal interest, which is proportional to the dangerousness of the attack.
In addition, the unlawful attack can also be a provocation. According to court practice, it is necessary to distinguish between intentional and wrongful provocation. In intentional provocation, a person purposefully provokes an attack on himself to harm another person under the guise of apparent necessary self-defence. Wrongful provocation is a situation when a person by unlawful behavior causes an encroachment on his legal interests, but the purpose of which is not to provoke an attack. Both intentional and wrongful provocation create a state of self-defence in the person who is provoked. However, the right to self-defence of the person who provoked the attack is excluded or limited. For example, intentional provocation is equated with a hidden attack, so the person who provoked the attack cannot exercise self-defence. In the case of wrongful provocation, the right to self-defence of the person who provoked the attack is limited, because the person must first try to escape from the conflict situation. If avoiding the conflict is impossible, one must first limit oneself to passive defense, refraining from deliberately harming the attacker's legal interests. In other words, in the case of provocation, the freedom of choice of defensive action in the state of self-defence is more limited.
When checking the conditions of the emergency protection state, the presence of an immediate or direct danger must first be identified. An immediate or direct illegal attack means a situation where the damage to the legal rights has already started or there is reason to seriously fear the damage to the legal rights.
Exceeding the limits of self-defence means the obvious non-compliance of the means of protection with the danger of the attack or causing excessive damage to the attacker. In addition, exceeding the limits of emergency protection makes it illegal to harm the attacker's rights if it is done intentionally or with direct intent. Therefore, emergency protection does not exclude the illegality of the act if the person aims to excessively harm the attacker. The purpose of performing self-defence must be to protect one's own or another person's legal rights, not to cause excessive damage to the attacker.
In the case of verbal abuse, to protect one's legal interests without exceeding the limits of emergency protection, it is possible to cause health damage to the attacker, but one must always analyze all the circumstances of each case.
Ex ante evaluation criteria are used to determine when emergency protection limits are exceeded. According to well-established practice, the limits of emergency protection are exceeded when it is clear to an objective bystander during the protective action that the person had the opportunity to repel the attack with milder means.
In the case of verbal abuse, it is obvious that in the event of severe health damage or death, the limits of emergency protection are being exceeded, but again - one must always analyze all the circumstances of each case.
