Justifying State of Emergency (Germany)

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The justifying state of emergency is a criminal justification . The general justifying state of emergency is standardized in Section 34 of the Criminal Code (StGB). More specific regulations can be found in Sections 228 and 904 of the German Civil Code (BGB) and Section 16 of the Administrative Offenses Act (OWiG)

The justifying state of emergency allows behavior that violates legal rights and obliges the person impaired to tolerate it .

History of origin

Originally, the Criminal Code did not have a general justifying state of emergency. Section 54 of the Criminal Code contained an emergency regulation, but its scope was limited to certain emotional distress of the perpetrator. Other laws, such as the Civil Code and the Commercial Code, contained justifications for emergency situations . In 1968 an emergency provision was introduced into the Law on Administrative Offenses.

However, the Reichsgericht already constructed an above-legal justifying state of emergency. This happened in a case where the accused doctor had performed an abortion to protect a suicidal mother. It regarded a weighing of interests between protected and impaired legal interests as an essential prerequisite for the state of emergency . The court compared the legal penalties: Since abortion was less severely punished than manslaughter, it drew the conclusion that, according to the legal assessment, the legal good “life” outweighs the legal good “existence of the fruit of the body”. The figure of the supra-legal justifying emergency was subsequently extended to other cases.

The second criminal law reform act of 1975 codified the justifying state of emergency in Section 34 of the Criminal Code. In this way, the legislature explicitly separated between justifying and apologizing emergency ( Section 35 StGB), since the two regulations are based on different concepts: In Section 34 StGB, criminal liability does not apply because the action is in accordance with the legal system, and in Section 35 StGB because that The perpetrator cannot be personally accused of illegal acts.

Function of emergency law

According to Section 34 Paragraph 1 Clause 1 StGB, a criminal offense is not unlawful if it is committed in the exercise of emergency law. The emergency law thus represents a justification for interfering with foreign legal interests. Therefore, a person who violates another legal interest in exercising his or her emergency law is not liable to prosecution.

As in the case law of the Reichsgericht, the weighing of interests between preservation and intervention is characteristic of Section 34 of the Criminal Code. Thus, the justifying state of emergency differs in particular from the justification of self-defense standardized in several laws ( Section 32 StGB), in which there is currently no weighing up and which therefore provides greater authority to intervene than the emergency law. The different structure of the two rights is based on their different purposes: The self-defense right serves to defend against an illegal attack on a legal asset. This can be fended off as effectively as possible, since the right does not have to give way to the wrong without a fight. In the case of a state of emergency, there are fundamentally different interests, as this allows interference with the legal interests of bystanders. This is based on the principle of minimum solidarity, which obliges people to tolerate interventions to protect clearly overriding interests.

Requirements of § 34 StGB

Emergency situation

Section 34 of the Criminal Code initially assumes an emergency situation. This is a current threat to an impermissible legal asset .

Emergency legal asset

All goods that are protected by the legal system are eligible. Specific protection by criminal law is not required.

Expressly designate § 34 of the Criminal Code of life , body , freedom , honor and property as a calamity ready protected goods. Also protected are, for example, the intimate sphere , the human dignity protected by Art. 1 Paragraph 1 GG , the right to lawful criminal proceedings and the workplace . General goods are also subject to emergency, such as road safety .

According to the prevailing opinion, a state of emergency also comes into question if the legal interest to be protected and the impaired legal interest are assigned to the same person. In the case of disposable legal interests, however, the will of the legal owner has priority.

Present danger

A current danger is a condition whose further development gives rise to serious fear of the occurrence or intensification of damage, unless countermeasures are taken immediately. This applies if the occurrence of damage to the legal asset is obvious or there is a certain likelihood of damage occurring. In the case of the probability forecast, the point of view of an objective observer who knows all the relevant circumstances ex ante is fundamental . However, if the perpetrator has special knowledge, this will be taken into account. In contrast to Section 32 of the Criminal Code, the cause of the danger is irrelevant. Therefore, dangers can also arise from circumstances for which nobody is responsible, such as natural events.

The definition of danger in Section 34 also includes permanent danger. This is a long-term threatening condition that can turn into an impairment of legal interests at any time. This is the case, for example, with the unpredictable risk of collapse of an old, dilapidated building. There is also a permanent risk if a person regularly engages in violence over a long period of time. At present, there is a permanent danger when it is so urgent that it can only be effectively averted through immediate action.

If the danger is triggered by a current unlawful attack, i.e. through will-driven human behavior, there is also a self-defense situation in addition to the emergency situation, which enables a justification according to § 32 StGB, which gives a greater power to intervene compared to § 34 StGB. Then § 32 StGB takes precedence over the justifying state of emergency. However, Section 34 of the Criminal Code has independent significance in cases of preventive self-defense. A preventive emergency situation exists, for example, when a person realizes that he or she is about to become the victim of a crime in the foreseeable future and is therefore already taking preventive action against the attacker. According to the prevailing opinion, the exercise of preventive self-defense cannot be justified by Section 32 of the Criminal Code, since there is no current attack; these features should be interpreted restrictively because of the scope of the powers which the right of self-defense confers on the agent. Since the concept of danger in Section 34 of the Criminal Code is broader than the term of attack in Section 32 of the Criminal Code, there may already be a current danger in cases of preventive emergency.

If a person threatens a legal asset through justified action, this does not represent a risk within the meaning of Section 34 StGB, since otherwise there is a risk of contradictions in valuation.

Emergency act

If there is an emergency, the perpetrator may take an action that is necessary, proportionate and appropriate to avert the danger.

Necessity of the emergency act

The emergency act is required if it is suitable for averting the danger and if it is the mildest means available. This is assessed on the basis of an ex-ante forecast. The danger must not be averted otherwise than through the action taken, which is why action is not necessary if the danger can also be reduced in a milder way.

As milder means, the sacrifice of one's own interests, evasion, and seeking state help are typically possible. It is true that under Section 32 of the Criminal Code, evasion in particular does not apply as a milder means, since law does not have to give way to injustice, but this follows from the principle of probation, which does not apply to Section 34 of the Criminal Code. It is not necessary if the owner of the threatened legal interest clearly wants to tolerate the danger.

Proportionality

When examining whether there is justification due to a general state of emergency, it is very important - in contrast to self-defense, for example - that the emergency act is also proportionate. This presupposes that the endangered legal interest outweighs that impaired by the emergency act. Since the injured by the emergency act is forced by the emergency law to endure the impact on his legal interests, jurisprudence applies a high standard here.

Abstract valence of legal interests

The initial criterion for weighing up proportionality is the determination of the abstract value of the legal interests concerned. The value of certain legal interests is indicated by the list in Section 34 (1) sentence 1 of the Criminal Code. According to this, the legal asset of life has the greatest value, followed by the legal assets of body and freedom. In the event of a severe cold snap, for example, a hiker would be entitled to break into a hut without the consent of the owner, if otherwise he would have to face certain freezing death outside. The owner then has no right to deny him access and residence. The legal interest of domestic peace gives way to the legal interest of life.

A weighing up between lives, however, is not permitted, since a substantial predominance is not possible due to the equivalence of the goods concerned. The killing of a person to save another can therefore not be justified in principle under Section 34 of the Criminal Code. This also applies if a large number of people are to be saved by killing a person, since a quantification of lives is impossible because of the guarantee of human dignity. Therefore, for example, a switchman is not justified by an emergency if he diverts an uncontrolled rolling train from one track to another in order to kill only a few instead of many people. But even interventions in the physical integrity of a person, especially permanent ones, cannot regularly be justified by an emergency, since such an impairment can only rarely be significantly exceeded by the importance of the property to be protected.

Extent of danger

Another important factor is the extent of the danger, which is assessed in particular on the basis of its type, origin, proximity and intensity. A concrete danger typically outweighs an abstract one.

If the legal interest of a person is to be interfered with, who culpably causes the danger or who is responsible for the danger in another way, this person has an increased obligation to tolerate. Increased tolerance obligations can also result from the fact that the risk is typical of the profession.

Extent of the threatened damage

Finally, another indication is the extent of the threatened damage. In the case of objects, this can be assessed on the basis of their objective value.

appropriateness

According to Section 34 of the Criminal Code, the act of averting the danger must ultimately be appropriate. This prerequisite has a similar function to the necessity criterion in self-defense: It is used to take into account evaluations for correcting results. Since extensive considerations are often already made when examining proportionality, the necessity and importance of the appropriateness criterion in jurisprudence are disputed.

Defense through legal procedure

The general opinion is that an emergency act is not appropriate if there is a legally regulated procedure to avert the danger. For example, anyone who violently defends himself against arrest cannot invoke Section 34 of the Criminal Code, but must instead take the legal process provided for this.

This applies accordingly to the defense of a danger by sovereigns: If there is a special legal basis for an act, for example for investigative measures in the Code of Criminal Procedure (StPO), it may only take place if the requirements specified in the standard are met. Otherwise there is a risk of circumvention.

Coercion

In cases of coercion , a person forces the perpetrator to commit an illegal act. This is the case, for example, when someone forces someone at gunpoint to beat up a third party.

Until 1969, Section 52 of the Criminal Code expressly ordered that the perpetrator would be unpunished in such cases; However, it was already controversial at the time whether Section 52 of the Criminal Code led to a justification or an apology. The distinction between justification and apology is important for the legal status of the person whose goods are to be interfered with: if the perpetrator is justified by a state of emergency, he cannot exercise self-defense, but in the case of a mere apology he can. In the example mentioned, the third party is likely to defend himself against the attack by the coercive, according to the prevailing view. The second Criminal Law Reform Act repealed Section 52 of the Criminal Code, so that since then it is the sole responsibility of the user to assess the necessity of coercion.

According to the prevailing view in jurisprudence today, the assumption of a justifying emergency is ruled out, since the perpetrator consciously takes the side of the injustice. In addition, the duty of solidarity of the person whose goods are interfered with by the coercive is overstretched. At best, therefore, the assumption of an apologetic state of emergency under Section 35 of the Criminal Code comes into question. A counter-opinion on the other hand affirms the possibility of justification by § 34 StGB, since the principle of overriding interest is also appropriately applicable in the case of an emergency. Still others consider a justification by § 34 StGB to be possible only in cases in which the endangered property has a significantly greater value than the impaired property.

Encroachment on elementary freedoms

Finally, there may be a lack of adequacy when the emergency act leads to an encroachment on a fundamental legal position. This is the case, for example, when a person is forcibly donated blood for the benefit of a third party . This goes beyond the required minimum solidarity. According to a counter-opinion, this can be appropriate if the person concerned is a guarantor for the person threatened, since the guarantor relationship leads to an increased obligation to tolerate.

Subjective element of justification

After all, the perpetrator has to act subjectively justified. This assumes that he is aware of the existence of the self-defense situation and that he wants to act to protect the endangered property.

It is controversial in jurisprudence what consequences it has if the perpetrator lacks the subjective element of justification. The dispute corresponds to that which also exists with regard to the right of self-defense . Jurisprudence and some of the legal doctrine assume that if the subjective element of justification is missing from a completed offense, punishment must be given. The predominant view in legal theory only assumes a penalty for attempt in the absence of the subjective defense element.

Special regulations on justifying emergency

In addition to the general justifying state of emergency regulated in the StGB, German law includes further regulations on the state of emergency. As leges speciales, they take precedence over Section 34 of the Criminal Code, thus displacing the more general regulation.

Civil law provides for two special forms of emergency: the defensive emergency, regulated in § 228 BGB, and the aggressive emergency , regulated in § 904 BGB. Both allow damage to someone else's thing to ward off danger.

Civil law defensive emergency

In cases of § 228 BGB, the danger to be averted originates from the thing that is to be damaged. For example, Section 228 of the German Civil Code allows an attacking dog to be kicked, provided the damage to the dog is not disproportionate to the danger posed by the dog.

Aggressive civil law emergency

In cases of Section 904 of the German Civil Code (BGB), the act is directed against an item that does not pose a risk. This is the case, for example, when a person uses a third person's umbrella to ward off an attacking dog.

A justification according to § 904 sentence 1 BGB presupposes the existence of an emergency situation in the form of a present danger. The terms correspond to those of § 34 StGB. A necessary action on a foreign thing comes into question as an emergency act. Furthermore, a balancing of interests must be in favor of the endangered legal interest. This applies if the threatened damage is disproportionately large compared to the damage caused by the emergency act. After all, the perpetrator must act with a rescue will.

According to § 904 sentence 2 BGB, the perpetrator is obliged to pay damages to the owner .

literature

Individual evidence

  1. ↑ a b Ulfrid Neumann: § 34 , Rn. 4. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  2. ↑ RGSt 61, 242 .
  3. ↑ Volker Erb: § 34 , Rn. 9. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 1 : §§ 1–37 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68551-4 .
  4. ↑ Kristian Kühl: § 34 , Rn. 1. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  5. ↑ Volker Erb: § 34 , Rn. 8. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 1 : §§ 1–37 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68551-4 .
  6. ↑ Volker Erb: § 34 , Rn. 55. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 1 : §§ 1–37 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68551-4 .
  7. ↑ a b BGH, judgment of May 15, 1979, 1 StR 74/79 = Neue Juristische Wochenschrift 1979, p. 2053.
  8. ↑ OLG Frankfurt, judgment of December 11, 1978, 4 Ws 127/78 = Neue Juristische Wochenschrift 1979, p. 1172.
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  11. ↑ Kristian Kühl: § 34 , Rn. 4. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
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  20. ↑ BGHSt 48, 255 .
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  49. ↑ Walter Perron: § 34 , Rn. 41e. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
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  52. ↑ Thomas Rönnau: Basic knowledge - criminal law: Subjective elements of justification . In: Legal training 2009, p. 594.
  53. ↑ BGHSt 2, 111 .
  54. ↑ BGHSt 3, 194 .
  55. ^ BGH, judgment of October 6, 2004, 1 StR 286/04 = Neue Zeitschrift für Strafrecht 2005, p. 332.
  56. ↑ Michael Köhler: Criminal Law: General Part . Springer, Berlin 1997, ISBN 3-540-61939-9 , pp. 323 .
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