Putative self-defense
Putativnotwehr (from the Latin putare , "believe, think") is a legal term from general criminal law , in which the perpetrator erroneously assumes that the prerequisites necessary for self-defense ( self-defense situation ) are present.
Putative self-defense is particularly given if the perpetrator assumes an alleged illegal current attack on himself. Example: A hunter thinks that a person would aim a rifle at him. In supposed self-defense, he shoots the attacker whom he has imagined and injures him seriously. He thus fulfills the criminal offense of dangerous bodily harm according to § 224 Paragraph 1 No. 2 Alt. 1 StGB . It turns out, however, that the attacker he imagined had accidentally pointed at the hunter with a stick. A justification of the act through self-defense ( Section 32 StGB) is therefore ruled out in the absence of an attack on the hunter. However, the defensive hunter could not recognize this at the moment of defending and acted in the belief that there was a danger to his life that could not be averted otherwise.
The putative defense is a sub-case of the permission error, the treatment of which is controversial in criminal law.
If, on the other hand, the perpetrator is wrong about the legal limits of self-defense, i.e. about his act of self-defense, he has made an error of permission . If the perpetrator defends himself more than allowed in a putative emergency situation out of confusion, fear or horror, one speaks of a putative emergency excess .
Examples of decisions based on putative self-defense are the controversial verdict on the killing of Benno Ohnesorg by the Berlin police officer Karl-Heinz Kurras and the acquittal of a Hells Angels member on the charge of manslaughter of a police officer by the Federal Court of Justice . The police officer was shot through a frosted glass door in the shooter's apartment as part of a SEK operation in Rhineland-Palatinate . The police had stormed the apartment on the basis of a search warrant without identifying themselves. The shooter credibly stated that he had assumed an attack by enemy Bandidos and that he feared for life and health.
Individual evidence
- ↑ Wessels / Beulke , Criminal Law General Part, 42nd edition, marginal no. 448
- ↑ BGH, judgment of November 2, 2011 , Az. 2 StR 375/11, full text and press release No. 174/11 of November 3, 2011.
- ↑ Police officer shot - BGH acquits Hells Angel , FAZ from November 3, 2011.
