When the law strikes back – self-defence

Self-defence as a ground of justification

Self-defence is one of the five grounds of justification provided for in Article 10 of the new Criminal Code.

Grounds of justification are circumstances defined by law that remove the unlawful character of a person’s conduct, so that the conduct becomes permitted or justified.

In practical terms, this means that if the judge finds there was self-defence, the defendant has not committed an offence and will therefore be acquitted.

Self-defence is further defined in Article 14 of the Criminal Code:

“Taking the law into one’s own hands by committing an offence is not permitted.

However, there is self-defence, and therefore no offence, where a person who is unable to avoid an unlawful, serious and immediate attack against themselves or against a third person by any other means than by committing the act qualified as an offence, defends themselves, with the intent to repel that attack, in a proportionate manner.”

From these legal provisions, several conditions can be derived, which we discuss below.

Conditions relating to the attack

First, the attack must be serious in order to justify a response. This means, for example, that the attack targets a person’s life, physical integrity or health.

Second, the attack must be unlawful: defending yourself against a lawful attack is not allowed. If, for instance, a police officer proceeds with an arrest based on a warrant, you cannot invoke self-defence.

Third, the attack must be immediate or ongoing. This means the attack has already started, is imminent or is unavoidable. Once the attack is over, you can no longer rely on self-defence.

Finally, the attack must be directed against you or against another person. That is why the term “self-defence” can be misleading in everyday language: it is not about defending property as such. Suppose a burglar is in your home and you attack them solely to protect your belongings: self-defence will not apply. Your physical integrity, your modesty/sexual integrity, or your personal freedom are not affected merely because someone is trying to steal your property.

Conditions relating to the defence

As for the act you commit to repel the attack, it must first be subsidiary. This means that, in reality, you have no other way to avoid the attack than by committing the offence. Committing the offence is, in a sense, the last resort (ultimum remedium). If someone tries to strangle you and the only thing you can do is hit them, the subsidiarity requirement is met.

Second, the defensive act must be proportionate, i.e., proportional to the attack. Concretely, this means you cannot do more than what is necessary. This assessment is independent of the eventual consequences of both the defence and the attack. Suppose you defend yourself by striking the aggressor and the aggressor ultimately dies: this may still be justified, even if the attack might have had less severe consequences.

Third, the defensive act must be carried out before or during the attack, not afterwards. If, for example, you catch a burglar in your home, they flee quickly, and you still shoot them in the back, you cannot invoke self-defence because the attack had already ended.

An important innovation introduced by the new Criminal Code is the requirement of an intent to defend oneself (defensive intent). This means the act of defence must be carried out with the intention of repelling the attack.

Concrete example: a doctor wants to administer a lethal injection to a patient. The patient does not know this, but the patient wants to kill the doctor. At the moment the doctor is about to inject, the patient kills the doctor by striking them. In that case, the patient did not have the intent to repel an attack, but rather the intent to kill the doctor. They therefore cannot rely on self-defence.

Exception for certain offences

The legislator has chosen to exclude certain offences from the scope of self-defence. These are particularly serious offences, such as torture, genocide, crimes against humanity and war crimes.