Necessary defense in extreme emergency

Chapters of the article

• Circumstances precluding illegality
• Necessary defense
• Extreme emergency
• Examples of extreme emergency

Circumstances precluding illegality

Crime and criminal liability are associated with certain features that must occur together. The basic one is the unlawfulness of such conduct, i.e., contradiction with the law. At the same time, however, the law provides that there are circumstances which exclude unlawfulness.

Some acts could theoretically be considered criminal if viewed in isolation (for example, I take a legally held firearm, shoot the person across the street from me, and injure him). In the context of the situation (the person in question broke into my flat and also threatened me with a gun), this may be precisely the circumstance that excludes illegality. Such conduct is not criminal from the outset.

The Criminal Code gives examples of situations where illegality is excluded. These include:

• extreme emergency,
• necessary defense,
• permissible risk,
• justified use of a weapon.

Necessary defense

The institution of necessary defense is associated with many myths and ambiguities. Do I have to wait for the perpetrator to attack as part of my defense? Can I use a firearm if the attacker “only” has a knife? Will I be arrested if I cause the attacker’s death? So let’s take a look at what acting in necessary defense looks like in practice.

The conditions that must be present for the definition of necessary defense to be met are:

• Threatened or ongoing attack – there is unlawful conduct by the attacker that I subsequently defend myself against, thereby causing some harm to the attacker. Importantly, the attack can be “only” threatening, so I don’t necessarily have to wait for someone to physically attack me if they are standing in front of me with a weapon in hand and threatening me. The key point is that such an attack can occur in the very near future. If we know that someone is planning it in a week’s time, we cannot justify our actions with necessary defense. Likewise if the attack has already been stopped. If, for example, the attacker is lying helpless on the ground and there is clearly no longer any danger from them, it is impermissible to attack them further.
  The actions of an insane person or a child may also constitute an attack. However, particularly in the case of children, it is appropriate to deal with the situation in a manner other than physical self-defense.
  In the case of an animal attack, for example, if the owner has set the animal against a person. In such a case, the dog or other animal is essentially in the position as the tool of the attacker.

• If it’s an attack against health, property, freedom, dignity, or another interest protected by criminal law – however, if it were, for example, the conduct of a police officer who, in the course of their duty, lawfully detained someone (and restrained their liberty), this is a permissible act that cannot be considered an attack against liberty. In such a case, the detainee’s defense could not be considered a necessary defense.
• The defense is not obviously disproportionate to the manner of the attack – this is not to say, of course, that it should be entirely equivalent to an attack, i.e. that I am also only allowed to respond to a stabbing with a weapon designed for stabbing. Such a legal requirement would be nonsensical for several reasons – firstly, I do not have an equivalent weapon on me at the time, secondly, when a two-hundred-pound man attacks a hundred-pound woman, they are probably not at risk of the same consequences when using the same weapons, and in general: the necessary defense should be able to repel the attack, i.e. it must actually be stronger than the attack itself. Earlier case law (especially under the previous regime) defined the limits of permissible necessary defense quite narrowly. Therefore, since 1993, legislators have broadened this concept. The rejection of obvious disproportionality is intended to prevent such extremes as someone using a firearm or a stabbing weapon against a convenience store robber, or the martial art of a karate fighter against children stealing apples

But what if the attack isn’t directly against you? For example, you walk into a gas station where the assailant is pointing a gun at the clerk. Are you allowed to intervene at that point? The law says that anyone is entitled to defend themselves, even someone who is not the target of the attack. This is the so-called assistance in necessary defense, which the law wants to prevent irreparable damage to health or property.

But be careful if you provoke the attack. You probably wouldn’t get away with teasing your buddy for an hour in a pub over a beer and then pleading self-defense when he slaps you around and you slap him back.

Necessary defense is also known in the Civil Code, which states that “whoever repels a threat or continuing unlawful attack on themselves or another, and in doing so causes injury to the attacker, is not liable to pay compensation.”

Extreme emergency

Extreme emergency is a broader concept than the preceding necessary defense. It does not involve repelling an attack, but generally any imminent danger. Here, too, it is a circumstance precluding illegality.

Unlike necessary defense, where it is presumed that the defender can choose (almost) any means to quickly, effectively, and definitively repel the attack, the law is a bit stricter in the case of extreme emergency. A greater demand is placed on the actor in the sense that he or she should seek to avert the danger in the first place by other means. So, if you can choose, for example, to flee at the time without too much difficulty, you may not be recognised as acting in extreme emergency. How you averted the emergency and what your other options were at the time will be the subject of the investigation.

In the case of an extreme emergency, the following conditions are presumed to be met:

• Averting a danger that threatens one of the interests protected by the Criminal Code – this danger can have various causes such as a storm, fire, the action of various machines or mechanisms, an attack by an animal (unprovoked by a human); or health, life, liberty, property or other interests protected by the Criminal Code are threatened.
• The danger is imminent and direct – not in the future or in the past.
• The danger could not have been averted in any other way – it is always necessary to choose the means which will cause the least possible damage. If we can easily hide from an attacking animal, for example in a nearby car, then it is certainly not appropriate to kill it.
• The consequence must not be as serious or even more serious than the threatened one – if I am threatened with a bite on my calf from a small dog, for example, then I cannot kill it. This is also a marked difference from the institution of necessary defense, where the degree of consequence is somewhat more benevolent.
• For some reason, the person who was in danger was not obliged to endure it – certain people have it in their job description that they are exposed to a certain level of danger, such as firefighters or police officers.

Examples of extreme emergency

We have already outlined some examples of extreme emergencies above, but let us add a few more: the use of someone else’s property – e.g. using a weapon against an attacking animal that threatens my life, using someone else’s car to transport a seriously injured person if I am away from civilization, breaking windows and breaking into someone else’s building if I am saving children from a fire, handing over someone else’s property (for example, in an armed robbery).

As well as necessary defense, extreme emergency can also be found in the Civil Code, which, in simple terms, says that the actor acting in extreme emergency in such a case is not obliged to compensate for damages.