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The self-defense rights (D, A, CH)

The self-defense rights (D, A, CH)
The rights of self-defense and the exercise by martial artists
From Dr. Jörg-Michael Günther and GM Gerhard E. Hermanski

Editor's note: The legal texts made available to our magazine by the authors in this article have been carefully researched by the authors, but do not constitute legal advice! This article is for our readers only for guidance! Since our magazine is published worldwide, different laws may apply in your country of origin. This article has highlighted the legal situation in Germany (pages 18, 19, 20 and in Switzerland and Austria on page 21 in the HAPKIDO magazine flipbook. No liability can be derived either from our publisher or from the authors . If in doubt, please contact to the legal advice of your trust in your region! (uw)
The propensity to violence and the number of bodily harm offenses have increased steadily in recent years, whereby in particular the dangerous bodily harm, i.e. attacks with knives, weapons or other dangerous tools, has increased alarmingly. The ideal of a safe and quiet area will vanish at the latest when you have been the victim of an assault and may still have to deal with the late effects of an injury. Again and again the question arises as to how the legal situation in emergency (weir) situations is for martial artists in particular, or how to help other attacked people in emergency aid. During training, the budoka learns how to defend themselves against various attacks. What ends playfully in training ends in real life for the Budoka who only defends himself against an attack, sometimes at the police station or even in court. The Budoka in particular rightly asks himself the question of what can be accused of using the techniques learned in training aggressively in self-defense situations. Society and some judges mistakenly assume that every budoka can assess a critical or dangerous situation better and faster and is able to fight perfectly and carefully in every street fight. However, this is not necessarily the case: no person who practices a martial art or sport becomes an insurmountable obstacle. This applies regardless of the level of graduation that has been achieved. Even acting as a highly graduated black belt wearer will be influenced by certain stress and nervousness in the real danger situation. Ultimately, every budoka remains a person who suddenly has to defend himself or others against offenders who have been tried and tested for anything and everything. Here - also legally - it cannot be expected that a budoka always doses his martial arts techniques perfectly. The article presents the regulations of self-defense law and emergency aid and particularly considers the question of whether and if so what special features apply to martial artists.

Self defense by budo athletes

It is often spread that in forced street fighting or in real attacks, the special abilities of martial artists - for example in the field of hapkido - would automatically lead to their increased responsibility or increased liability. This is wrong and leads to unnecessary uncertainty. It is therefore important to know the legal situation. The legal aspects of self-defense and emergency aid law according to § 32 StGB or § 227 BGB should be part of the training plan in a qualified BUDO training.

According to the teachings of the Budo, the fight is the best, which does not take place at all. As far as possible, one should try to avoid real confrontations and to calm the conflict situation that has arisen. According to the case law, no one who is attacked must “flee lightly”. Dodging is the wiser option for every budo fighter. Anyone who finds an escape window as BUDOKA - even while fighting is already in progress - should take the opportunity. However, if you as a hapkidoin are exposed to a so-called "current illegal attack" and defend yourself or help an attacked person (emergency aid), you have the right to self-defense. If one defends oneself in such attack situations with will to defend oneself and injures the attacker with blows and lever techniques etc. or kills the attacker with knives or firearms in extremely dangerous situations, even in exceptional cases with counter techniques, one is usually not punishable. Violence may be returned with violence. The right need not give way to the wrong.

There must first have been a self-defense situation, ie the martial artist must have been exposed to a current illegal attack (Section 32 of the Criminal Code). There is then - contrary to popular belief - no special warning to the attacker before using defense and attack techniques for the budoka. You don't have to point out to the attacker that you master martial arts or martial arts. Certainly you don't have to - as is often heard - when Budoka warned the attacker three times before you resist. As an attacked person, you do not have to take the risk that an attacker feels challenged and provoked by such a warning. Such an indication could make the attack more intense (BGH, NStZ 1999, 64). As an example, consider the case where the bat is just pulling a knife or using a hidden pistol because of the warning from the martial artist. The warning could therefore expose the defense lawyer to the particular risk of injury or successful attack by the perpetrator who decided to use violence. This is not legally expected of the defender, especially since a warning would take away the important element of surprise in his defense. Defense would become ineffective. Fast throwing techniques, kicks and punches and the use of painful lever techniques, which make up hapkido, are more effective when the attacker does not expect the victim to do so. In the case of a very high graduation or if someone has proven extensive combat practice from competitions, a court may expect the very experienced fighter in individual cases to use milder techniques before adopting the most dangerous techniques. If, for example, an attack by a holding technique can be avoided with certainty, the wrist should not be broken or other parts of the body may be seriously injured.

However, this only if the budoka with his specific abilities and physical prerequisites has the time to assess the dangerousness and there are appropriate alternative courses of action that guarantee success as safe as the more dangerous technology. This always depends on the overall combat situation. There is an extreme variety of dangerous attacks. For example, if the offender's hands are drawn to the victim's neck, it is clear that the intent is to seriously injure the victim. Here, the defender can and may react with extreme determination and toughness. In the event of attacks with weapons or attacks by several dangerous people, the most effective and dangerous technology can be used regularly at any level of education to safely end the attack. Jurisdiction does not regularly impose a personal risk on the person under attack. If several remedies ward off the attack safely, the milder means should be chosen.

In everything in favor of attacked martial artists, it must be taken into account that the self-defense situation represents an enormous stressful situation with adrenaline output for every attacked person. The question of the milder agent must not only be assessed in the abstract on the basis of martial arts textbooks by courts. Attackers are increasingly sensitive to pain due to drugs or alcohol, so that only harder techniques of the defending martial artist promise success. The type of psychologically charged offender is also coming more and more frequently on the street. In addition, the perpetrator usually surprises the victim with his attack, which must use defense and counter techniques in milliseconds. It will be difficult to dose practiced martial arts techniques or not to complete punch or kick combinations that have been practiced for years or to break off at a certain point in order to protect the perpetrator of violence in the unusual case of an unusual emergency. With everything, it should also be remembered that there are situations with attackers who do not follow any rules and where unfair and possibly life-threatening attacks (kicks on the head of the victim lying on the ground) and weapons must be expected at all times. It is therefore the duty of the criminal judge not to make any unrealistic and inappropriate demands on martial artists and martial artists in self-defense situations. Competitions in a dojang (training room) are completely different from everyday combat situations imposed on the serious martial artist. The problem of witness perception should also be pointed out. It can be negatively affected at the expense of the attacked martial artist, because the martial artist may have used or had to use techniques that laypersons may find to be very violent. If in doubt, the court must seek advice from a Budosport expert. In general, it is advisable to call the police out loud as the attacked person so that the role of victim is clear to witnesses of the fighting.

In individual cases, it may be advisable to refrain from defending against adolescents or incapacitated attackers (e.g. very drunk people) or to defend themselves with extreme restraint. However, alcoholization of an attacker below the threshold of reduced guilt is no reason for an emergency defense restriction. Even trivial attacks usually do not justify massive acts of defense. For everything, the entire battle situation and the development of the conflict, including the type, size and strength of the attack and the means of defense must always be considered (BGH, decision of 13.9.2017, 2 StR 188/17; BGH, NStZ-RR 1999, 264).

The decisive factor is the necessity of the defense act. Unwanted effects are covered by the self-defense if, in retrospect, the result would not have been necessary for defense against attack (example: AG Cologne, MDR 1985, 1047 - punching in self-defense, which resulted in the loss of an eye). If a martial artist within the meaning of Section 33 of the Criminal Code exceeds the boundaries of self-defense “out of confusion, fear or terror” (excess defenses), he will not be punished. This can happen in the "street fight", because the conditions in a dojang are different than in a fight imposed on the martial artist without rules.

Recommended Reading

Ralph Kühn, sports criminal law and self-defense with special consideration of negligence in sports and special skills acquired through martial arts, Aachen 2001 Jörg-Michael Günther The case law on Asian martial arts - from liability to self-defense, sports and law 2008, 57

Original legal text

Criminal Code (StGB)

Section 32 Self-Defense

(1) Anyone who commits an act that is required by self-defense does not act unlawfully.
(2) Self-defense is the defense required to avert a current illegal attack on yourself or another.

Section 33 Exceeding the self-defense

If the perpetrator exceeds the limits of self-defense due to confusion, fear or terror, he will not be punished.

Civil Code (BGB)

§ 227 self-defense

(1) An act of self-defense is not illegal.
(2) Self-defense is the defense that is required to avert a current illegal attack on yourself or another.

Defense law
in Switzerland
and in Austria

Switzerland ( CH )

In Switzerland, the principles for self-defense are similar to those in Germany. Article 15 of the Criminal Code (Switzerland) states: "If someone is attacked without right or immediately threatened with an attack, the person under attack and everyone else is entitled to ward off the attack in a manner appropriate to the circumstances." , a reasonable defense is required from him. Proportionality is specifically emphasized here - more than in German law. In practice, however, there is no decisive tightening of the self-defense requirements in relation to German law. Already according to general legal principles, a certain proportionality is always required, whereby according to both legal systems to safely ward off a dangerous attack, one can (and should) react with harshness. However, one must note that the legal interests concerned are not objectively in disparity with one another. On the other hand, in Switzerland too, naturally, the abilities of an abruptly attacked person to weigh the situation must not be subject to too high demands.

On the other hand, Swiss law in favor of the attacked already makes it clear in the law that a "defender" does not have to wait until the attack is carried out before he can defend himself. The immediate threat of an attack is enough. This is a good legal regulation, because it is unreasonable for a potential victim, for example, to first have to take a violent punch in order to be able to justifiably ward off further blows. In Switzerland too - as in Germany, cf. there section 33 of the Criminal Code - an important regulation in the event that in a special situation as a defensive martial artist you react too hard due to stress or the situation. According to Art. 16 Para. 1 StGB, the court mitigates the penalty if the self-defense limits have been exceeded. Article 16 paragraph 2 of the Criminal Code is of particular importance:

If the defender exceeds the limits of self-defense in excusable excitement or dismay at the attack, he is not acting culpably. "

You should always keep this rule in mind and, if in doubt, put aside aspects of your own criminal liability when it comes to effectively protecting yourself in an innocent, dangerous situation. In Switzerland too, the legislator has indicated that he has great understanding of the special emotional situation. The “excitement” and “dismay” that the perpetrator has on the targeted victim - the terms are very good - can excuse the so-called emergency defense excess. A punishment for a “victim” who has fought too violently is therefore ruled out if a court can understand the psychological exceptional situation of the defender. The declaration of impunity has the effect of an acquittal.

Austria (A)

In Austria, self-defense is regulated in Section 3 (1) of the Criminal Code (Austria). It is allowed to defend oneself in a manner “necessary to ward off a present or imminent illegal attack on life, health, physical integrity, sexual integrity and self-determination, freedom or property from oneself or another to ward off oneself or another. ”This legal situation is also very largely in line with the self-defense law in Germany and Switzerland. The act of self-defense is only justified if it is clearly recognizable that the attacked person is at risk of minor injury and that his defense as a martial artist is not appropriate, in particular because of the severity of the adverse effects on the attacker needed to defend himself. In excess of self-defense, however, Section 3 (2) of the Criminal Code states:

"Anyone who exceeds the justified level of defense or uses an obviously inadequate defense (para. 1), if this happens only out of dismay, fear or terror, is only punishable if the excess is based on negligence and threatens the negligent act with punishment is. "

As in Germany and Switzerland, punishment for exceeding the level of self-defense is therefore ruled out if it is based on aspects such as “dismay, fear or terror”. However, there is a restriction in Austria that the exclusion of penalties only refers to the deliberate commission of an act. A punishment for negligent inspection is possible if negligent inspection of the offense is punishable and the defender, despite his mood, can be accused of failing to recognize the necessity or appropriateness of the act of defense. In this respect, self-defense law is somewhat more restricted in Austria. In practice, however, if a court can understand the psychological exceptional situation of a victim and the overreaction he caused, this does not really have a disadvantage for those affected. In this case there is no negligence.

To the bibliography:

Jörg-Michael Günther The Max and Moritz case, Cologne 2019, p. 142 ff.
Stefan Trechsel, Peter Noll, Mark Pieth: Swiss Criminal Law General Part I. 7th edition. Zurich / Basel / Geneva 2017

Portrait of JuergGuenther Gr Portrait of Gerhard E Hermanski2 oßmeister Gerhard E. Hermanski
8. Dan Hankido Hapkido
CEO of the Federal Academy of Korean Martial Arts
Teaching trainer for security,
Personal protection and judicial training

Dr. Jörg-Michael Günther
Legal Advisory Board of the Federal Academy of Korean Martial Arts
Author and lecturer in sports and criminal law,
1. Dan Hanguldo / 2. Kup Hankido Hapkido
Gerhard Hermanski
8. Dan Hankido Hapkido, CEO der Bundesakademie koreanischer Kampfkünste, Lehrtrainer für Sicherheits-, Personenschutz- und Justizausbildung