Lethal force in self-defence

By Dr. Julius Hagen, Attorney at Law

The attack must still be continuing at the critical moment

Where lethal force is used in self-defence, German law does not assess the situation solely by looking at the later outcome. Section 32 of the Criminal Code requires a present and unlawful attack. The sequence, distance, movements and perceived danger therefore have to be reconstructed as they appeared in the decisive seconds.

Investigators commonly rely on injury patterns, forensic findings, scene traces, video, emergency calls and the first accounts given by those involved. A single recording or later assessment rarely explains the whole sequence. The question is whether the evidence actually supports the assumed order of events.

Necessity: what option was safely available?

The response must be capable of ending the attack immediately and finally; where several options are equally effective, the least dangerous one is generally required. A person facing an armed or physically superior attacker does not usually have to accept an uncertain risk of failure. With potentially lethal force, however, distance, weapons, escape routes and the reliability of a warning may still matter.

Three recurring situations can change the legal assessment. In a knife attack, the distance between the people may determine the available reaction time and whether a shot was necessary. If the attacker was already fleeing, the original defensive situation may have ended and a shot may be viewed as retaliation rather than defence. In a physical confrontation, further blows may become excessive after the situation has changed.

Provocation, mistake and excess

If the person using force deliberately created the confrontation, the right of self-defence may be lost. Where the confrontation was caused culpably but without that intention, the law may require a graduated response, including withdrawal or protective defence where this was reasonably possible. The legal significance of the provocation therefore depends on the history of the encounter, not only on the final movement.

A person who mistakenly perceives an attack may be acting in putative self-defence. That differs from simply misunderstanding the legal limits of self-defence. The relevant evidence may include perception, lighting, noise, prior threats and the objective indications available at the time.

Section 33 concerns an excessive defensive response caused by confusion, fear or shock. The required mental state must be supported by the sequence and surrounding circumstances; simply describing the situation as stressful or angry does not establish the statutory defence.

What should be preserved before making a statement

No account to the police or to another suspect should prematurely fix the sequence of events. Preserve original communications, recordings, emergency-call data, medical records, clothing and the seizure inventory. The person’s own perception of the moments before the attack should be recorded separately from later conversations.

The defence must separate fact, inference and legal assessment. A video may show a movement; whether that movement could reasonably be perceived as an attack is a separate question. That distinction identifies whether the prosecution’s account rests on evidence or on hindsight.