Is self-defence also possible in cases of theft or trespass?
Self-defence is that defence which is necessary to avert a present unlawful attack against oneself or another.
Self-defence is a classic in the area of the examination of expert knowledge — and of course also elementary for professional practice!
We encounter self-defence in three laws at once, namely in § 32 StGB, in § 227 BGB and also in the Act on Administrative Offences in § 15 OWiG.
In today’s article, however, I am not directly concerned with self-defence as a justification and its individual elements. When you can invoke self-defence, i.e. physically attack someone without making yourself liable to prosecution, is described in detail in the text of the law. When preparing for the 34a examination in courses or books, the paragraph on self-defence is always described in detail and with illustrative examples.
One punch, one attack! Defend yourself, self-defence! All right?
In the examination of expertise in the guarding trade according to § 34a of the GewO, at least one question is almost always aimed at self-defence, e.g. at the preconditions when one is allowed to act in self-defence at all. Self-defence is an important justification for taking action against attackers without making oneself liable to prosecution. Because self-defence is an “everyman’s right”, any person may invoke it, including security guards, of course, provided that the conditions for self-defence are met. If the doorman is suddenly attacked with his fist in violation of the law, he may defend himself against the attacker. He is not liable to prosecution, even if the attacker suffers injuries and (hopefully) loses out. So far so clear. But:
What about theft or trespass?
Theft or trespassing also constitute an unlawful attack, namely on the legal right to property or the right of domicile. In these examples, it is certainly permissible to defend oneself and to use force to repel the attack! However, the proportionality and the means used for defence must always be considered.
Which legal interests are capable of self-defence at all?
Many learners mistakenly assume that one may only ever use force in self-defence in the case of a physical attack on oneself (self-defence) or on another person (emergency assistance). But this is wrong! In principle, any (individual) legal interest is capable of self-defence. In addition to life, limb and health, this also includes property, honour, assets (etc.) of a person.
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