Is self-defence also possible in cases of theft or trespass?

Is self-defence also pos­si­ble in cases of theft or trespass?

Self-defence is that defence which is neces­sa­ry to avert a pre­sent unlawful attack against ones­elf or another.

Self-defence is a clas­sic in the area of the exami­na­ti­on of expert know­ledge — and of cour­se also ele­men­ta­ry for pro­fes­sio­nal practice!

We encoun­ter self-defence in three laws at once, name­ly in § 32 StGB, in § 227 BGB and also in the Act on Admi­nis­tra­ti­ve Offen­ces in § 15 OWiG.
In today’s artic­le, howe­ver, I am not direct­ly con­cer­ned with self-defence as a jus­ti­fi­ca­ti­on and its indi­vi­du­al ele­ments. When you can invo­ke self-defence, i.e. phy­si­cal­ly attack someone wit­hout making yours­elf lia­ble to pro­se­cu­ti­on, is descri­bed in detail in the text of the law. When pre­pa­ring for the 34a exami­na­ti­on in cour­ses or books, the para­graph on self-defence is always descri­bed in detail and with illus­tra­ti­ve examples.

One punch, one attack! Defend yours­elf, self-defence! All right?

In the exami­na­ti­on of exper­ti­se in the guar­ding trade accor­ding to § 34a of the GewO, at least one ques­ti­on is almost always aimed at self-defence, e.g. at the pre­con­di­ti­ons when one is allo­wed to act in self-defence at all. Self-defence is an important jus­ti­fi­ca­ti­on for taking action against atta­ckers wit­hout making ones­elf lia­ble to pro­se­cu­ti­on. Becau­se self-defence is an “everyman’s right”, any per­son may invo­ke it, inclu­ding secu­ri­ty guards, of cour­se, pro­vi­ded that the con­di­ti­ons for self-defence are met. If the door­man is sud­den­ly atta­cked with his fist in vio­la­ti­on of the law, he may defend hims­elf against the atta­cker. He is not lia­ble to pro­se­cu­ti­on, even if the atta­cker suf­fers inju­ries and (hop­eful­ly) loses out. So far so clear. But:

What about theft or trespass?

Theft or tres­pas­sing also con­sti­tu­te an unlawful attack, name­ly on the legal right to pro­per­ty or the right of domic­i­le. In the­se examp­les, it is cer­tain­ly per­mis­si­ble to defend ones­elf and to use force to repel the attack! Howe­ver, the pro­por­tio­na­li­ty and the means used for defence must always be considered.

Which legal inte­rests are capa­ble of self-defence at all?

Many lear­ners mista­ken­ly assu­me that one may only ever use force in self-defence in the case of a phy­si­cal attack on ones­elf (self-defence) or on ano­ther per­son (emer­gen­cy assis­tance). But this is wrong! In prin­ci­ple, any (indi­vi­du­al) legal inte­rest is capa­ble of self-defence. In addi­ti­on to life, limb and health, this also includes pro­per­ty, honour, assets (etc.) of a person. 

Exclu­si­ve tips on how to pass the exam easily

We do not send spam! Learn more in our Pri­va­cy poli­cy.

Exclu­si­ve tips on how to pass the exam easily

We do not send spam! Learn more in our Pri­va­cy poli­cy.