Erroneous Assumption of Justifying Circumstances
Erroneous Assumption of Justifying Circumstances
Section 8 of the Criminal Code addresses cases where an individual mistakenly believes they are acting in a justifying situation, such as self-defense. Objectively, however, no such situation exists. Therefore, a person who defends themselves when no attack is occurring is not intentionally punishable. Punishment is only considered if the mistake is due to negligence and the act is also punishable in its negligent form.
Putative self-defense means believing in a self-defense situation, even though objectively none exists.
Erroneous Assumption of Justifying Circumstances
Criminal law strictly differentiates between intentional acts and actions taken under presumed justification. An individual who believes they are acting justifiably, despite no objective basis for such a situation, should not be treated as an offender who deliberately violates the law.
Principle
Section 8 of the Criminal Code clarifies: Intentional punishment is excluded if an individual mistakenly believes a justifying situation exists. Culpability is only considered if the mistake is attributable to negligence and negligence is explicitly punishable for that specific offense.
Putative Self-Defense and Putative Necessity
- Putative self-defense: The individual believes they are being attacked and defends themselves. It later emerges that no attack occurred.
- Putative necessity: An individual believes they must avert a danger, even though objectively no danger is present.
In both instances, there is no intentional culpability. However, the decisive factor is whether the mistake was excusable.
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To prevent Section 8 of the Criminal Code from being overextended, jurisprudence clearly defines the boundaries:
- Mistake of fact: An individual who errs regarding an element of the offense (e.g., believing an object belongs to them) does not fall under this provision.
- Mistake of law: An individual who misjudges the legal situation (‘I thought that was permitted’) also does not fall under this section.
- Excessive defensive actions: Even in a presumed situation, the reaction must not be entirely disproportionate.
Practical Significance
In many criminal proceedings, Section 8 of the Criminal Code plays a significant role when individuals react inappropriately in stressful or dangerous situations. Typical scenarios involve someone feeling threatened and consequently taking a defensive action. Whether this is punishable depends on several factors:
- Was the mistake comprehensible from the perspective of a reasonable person?
- Did the defensive action remain within the scope of the perceived danger?
- Was the mistake avoidable, and if so, is the offense also punishable if committed negligently?
Legal Classification and Examples
The courts consistently assess whether the perceived danger would have been discernible to an objective observer. The benchmark is not purely subjective fear, but rather that of a reasonable third party in the same situation.
Examples:
- Nighttime approach: An individual strikes because they perceive an approach in the dark as an attack. It later emerges that no danger existed.
- Everyday misunderstanding: An individual mistakes a sudden movement for an attack and reacts with a defensive action.
- Exaggerated reaction: A defensive action that far exceeds what is necessary no longer falls under Section 8 of the Criminal Code and can lead to liability for negligence.
Your Benefits with Legal Assistance
A criminal proceeding is a significant burden for those affected. Serious consequences threaten right from the start – from coercive measures such as house searches or arrests, to entries in the criminal register, to custodial or monetary penalties. Errors in the initial phase, such as thoughtless statements or insufficient preservation of evidence, often cannot be corrected later. Economic risks such as claims for damages or procedural costs can also be substantial.
Specialized criminal defense ensures that your rights are protected from the outset. It provides security in dealing with the police and public prosecutor’s office, protects against self-incrimination, and creates the basis for a clear defense strategy.
Our law firm:
- examines whether and to what extent the accusation is legally sustainable,
- accompanies you through investigation proceedings and main hearing,
- ensures legally sound applications, statements, and procedural steps,
- assists in defending against or settling civil law claims,
- protects your rights and interests vis-à-vis the court, public prosecutor’s office, and victims.
Peter HarlanderHarlander & Partner Rechtsanwälte „Machen Sie keine inhaltlichen Aussagen ohne vorherige Rücksprache mit Ihrer Verteidigung. Sie haben jederzeit das Recht zu schweigen und eine Anwältin oder einen Anwalt beizuziehen. Dieses Recht gilt bereits bei der ersten polizeilichen Kontaktaufnahme. Erst nach Akteneinsicht lässt sich klären, ob und welche Einlassung sinnvoll ist.“
