Self-defense
Self-defense
Self-defense refers to the defensive action that is necessary to ward off a current or immediately threatening unlawful attack from oneself or another. The Austrian Criminal Code (StGB) regulates the requirements for self-defense in § 3 StGB. Anyone who is in a self-defense situation may take the necessary defensive action without being liable to prosecution. The crucial factor is always that the defensive action is suitable, necessary, and proportionate.
The legally permitted defense against a current unlawful attack by means of a necessary defensive action is called self-defense.
Legal Foundations
The most important rule is in § 3 StGB. It states that an action is not prohibited if it was necessary to ward off an attack. In addition to the law, case law also plays a major role, because the courts determine on a case-by-case basis how far self-defense may go.
Three points are important:
- Defensive action: You may only do as much as is necessary to stop the attack.
- Unlawful attack: Self-defense only exists against attacks that are not permitted or lawful.
- Imminence: The attack must be directly imminent, currently happening, or still ongoing.
Requirements for Self-Defense
For a self-defense action to be justified, several conditions must be met:
- An attack
An attack is any human behavior that threatens a legally protected asset (life, physical integrity, freedom, property, etc.). - Illegality
The attack must not be covered by a right, such as necessity, official order, or other grounds for justification. - Imminence
An attack is imminent if it is directly impending, has already begun, or has not yet ended. Earlier or long-completed attacks do not justify self-defense. - Necessity of defense
The mildest but at the same time effective means of defense must be chosen. A completely disproportionate escalation (e.g., firearm against a light slap) is not covered.
Limits of Self-Defense
Even if the right to self-defense is far-reaching, there are limits:
- Clear abuse: An action that is obviously not for defense but has a vengeful character is not covered by self-defense.
- Disproportionality: If the damage from the defense outweighs the impending damage, there is an overreach.
- Excessive self-defense: § 3 Abs. 2 StGB recognizes that an overreach of self-defense in asthenic affects (confusion, fear, terror) can be unpunishable.
Typical Examples from Practice
- Defense against a physical attack: Someone is hit and defends themselves by holding the attacker and pushing them back.
- Burglary: An offender breaks in; the occupant may defend themselves, if necessary by using physical force.
- Verbal provocation: Mere insults without an attack on a legal right do not justify self-defense.
Case Law on Self-Defense
Austrian case law makes it clear that the assessment always depends on the individual case:
- The Supreme Court (OGH) requires an exact examination of whether the defensive action was necessary.
- Appropriate means such as pushing away, holding, or fleeing are often sufficient.
- The use of severe means (weapon, massive blow) is only permitted if milder measures were not suitable.
Distinction: Self-defense vs. Putative Self-Defense
- Self-defense: There is actually a current unlawful attack.
- Putative self-defense: The person acting mistakenly believes there is an attack. Here, a factual error comes into consideration, which is to be treated differently under criminal law.
Your Benefits with Legal Assistance
If you are involved in criminal proceedings, legal assistance is crucial from the outset. Our law firm:
- accompanies you from the first police interrogation,
- ensures comprehensive access to files and develops the appropriate defense strategy,
- examines whether grounds for justification or excuse such as self-defense, necessity, or error can be asserted,
- reliably protects you from hasty statements and ill-considered steps,
- represents your interests with commitment throughout the entire proceedings – from the first interrogation to the main hearing.
