Self-Defense and Necessity in Criminal Law

Self-Defense Requirements

As required by Article CP 24:

1. Illegitimate Assault

An illegitimate assault (intentional) is an essential element, without which self-defense cannot be considered. This term refers to:

• A physical, real rush, but it need not be consummated.
• A current event in the sense of imminent. There can be no early or late defense.
• An unlawful criminal event (involving the person, home, or property). It is not necessary that the offender is guilty.

2. Rational Need for the Means Used in Defense

This is an accidental goal; if missing, it does not constitute complete self-defense but incomplete defense (cut off). It requires that the means of defense be the least invasive possible, using the lowest possible intensity. However, self-defense is justified based on need and not by the aforementioned proportionality. Advocates cannot be required to have quiet reflection and coldly choose the most proportionate means of defense.

3. Lack of Sufficient Provocation

Lack of sufficient provocation on the part of the defender: an accidental element target.

4. Need for Defense

Required by case law: Need for Defense: a subjective element. It is a necessity of defense in the abstract.

State of Necessity

Concept

A crisis (from reckless conduct, permitted conduct, or nature) to the legal system, where there is an ex ante and ex post confirmation that the order is resolved in favor of the overriding interest. It can act as a complete or incomplete defense.

Basis

Justification prevails for conduct that causes a lesser evil in proportion to the evil that threatens to occur.

Classes

1. Necessity Defense or Justification: The evil comes from reckless behavior.
2. Aggressive or Exculpatory Necessity: The evil comes from nature or conduct that is permitted. These are extreme personal conflicts that lead back to the field of unenforceability.
3. Necessity Affecting People: One's own, to third parties, or assistance needed.
4. Necessity Affecting Property or Rights: Duties collision with the impossibility of simultaneous fulfillment of both.

Requirements

1. Situation of Need: A real threat of evil, perfect, imminent, and immediate, that can only be prevented by injuring the interests of others. Subsidiarity is required.
2. The Harm Caused Must Not Be Greater Than What Is to Be Avoided: There will be a weighting, taking into account the dignity of the person, the principle of prior distribution of goods, and the circumstances of the case.
   • Potential grading of responsibility.
   • Causes harm lower than it prevents: complete defense.
   • Causes harm slightly higher: incomplete defense.
   • Causes harm clearly superior: penalty.
3. The situation of need must not have been caused intentionally by the subject.
4. The subject should not be required to make sacrifices because of their office or position.