Exculpatory Necessity

Exculpatory necessity according to § 10 of the Criminal Code is a ground for the exclusion of culpability. It exists when someone commits a criminal offense in an exceptional coercive situation to avert an imminently threatening, significant harm to themselves or others. Although the act remains unlawful, personal culpability is excluded because a reasonable person cannot be expected to act lawfully in such a situation. It is crucial that the danger was not self-inflicted and that the damage caused is not disproportionately more severe than the averted danger.

Principle of Exculpatory Necessity

Exculpatory necessity concerns cases where a person commits an unlawful act to avert an imminently threatening danger.
Important: The act remains unlawful, but the perpetrator is not punished because no culpable conduct can be attributed to them.

Prerequisites for Exculpatory Necessity

For § 10 of the Criminal Code to apply, certain conditions must be met:

• Imminent Danger: There must be an acute, present, and significant threat, for example, to life, health, liberty, or significant property.
• No Fault of One’s Own: The danger must not have been intentionally or negligently self-inflicted.
• No Reasonable Alternative: There must be no legal means to avert the danger.
• Proportionality: The action must not be significantly more severe than the danger one intended to avert.

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Distinction from other Types of Necessity

Justifying Necessity

In the case of justifying necessity, a danger is averted by sacrificing a less important legal interest. The act is then not unlawful.

Exculpatory Necessity

In the case of exculpatory necessity, even equivalent legal interests can be weighed against each other, for example, life against life. The act remains unlawful, but the perpetrator is excused and therefore not culpable.

Self-defense

Self-defense only exists if an unlawful attack originates from a person. Exculpatory necessity does not concern attacks, but rather extraordinary emergencies.

Practical Significance

Exculpatory necessity plays a role primarily in extreme situations.

Examples:

• Danger to Life: Two people are adrift after a shipwreck on a small boat that can only support one person. One pushes the other into the water to survive. → The act (killing) remains unlawful, but the perpetrator may be excused.
• Threat by Third Parties: Someone is severely threatened by another person and commits a criminal offense to save themselves. → Potentially excused.
• Rescue Actions: A person smashes a car window to free a child from an overheated vehicle. → The action remains within the scope of the offense, but may be excused under certain circumstances.

Limitations

Limitations exist where someone deliberately puts themselves in danger, for example, through reckless behavior. In such cases, one cannot invoke exculpatory necessity. Furthermore, § 10 of the Criminal Code applies exclusively to intentional acts, not to negligent conduct. Finally, an excuse is also not considered if a specific provision for the concrete situation is already provided in the Criminal Code.

Practical Consequences

In practice, exculpatory necessity means that the act remains unlawful despite everything. Other persons are therefore permitted to defend themselves against it with self-defense. However, the perpetrator themselves is not punished because no culpable conduct can be attributed to them. It is different if someone mistakenly believes they acted in such a state of necessity: If this error was due to negligence and the offense is also punishable in a negligent form, a conviction for negligence may still occur.

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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.

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Frequently Asked Questions – FAQ

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