Justifications of the stgb

Not every action or omission which fulfils the conditions of a criminal offence is unlawful. Under certain conditions, criminal or ‘tortious’ conduct may be lawful. This applies equally to crimes of commission, crimes of omission as well as crimes of intent and negligence. A distinction is made between criminal, statutory and extra-legal grounds for justification. Lawyers in Frauenfeld, Zurich and St. Gallen can answer whether the respective grounds for justification exist and are happy to advise you on your individual case. Subsequently, self-defense and a situation of necessity are discussed in more detail.

THE SELF-DEFENSE / ASSISTANCE

Article 15 of the Criminal Code states: "If any person is unlawfully attacked or threatened with imminent attack, the person attacked and any other person are entitled to ward off the attack by means that are reasonable in the circumstances." Here, the maxim applies: right need not give way to wrong. However, in order to invoke self-defense, a number of conditions must be met. Thus, a situation of self-defense must be present, whereby one’s legal interest or that of another person, is injured or endangered. This attack must be unlawful. But beware: if the attack occurs as a result of an intentional provocation, one cannot plead self-defense, since this would be an abuse of rights. With a provocation, one has set the situation of the attack up or even explicitly desired to trigger it. Furthermore, a self-defense reaction must meet two requirements to be considered appropriate: that of subsidiarity and of proportionality. The principle of subsidiarity states that the defense is only appropriate if one could not have defended oneself with another, less dangerous means. The principle of proportionality requires that the legal interests affected by the defensive action must not be disproportionate to the legal interests thereby protected. If the limits of proportionality pursuant to Article 15 Swiss Criminal Code are exceeded, it is an excess of necessity. Are you unsure whether a self-defense situation you were involved in fulfils the condition of an excess of necessity? A lawyer in St. Gallen, Zurich or Frauenfeld will be happy to assist you.

THE EMERGENCY / THE EMERGENCY AID

Article 17 of the Criminal Code states: "Any person who carries out an act that carries a criminal penalty in order to save a legal interest of his own or of another from immediate and not otherwise avertable danger, acts lawfully if by doing so he safeguards interests of higher value.". The maxim ‘necessity knows no laws’ applies here. In order to protect legal interests of higher-value from imminent danger, the intervention in the legal interests of uninvolved third parties is justified. However, a number of conditions must be met before a state of emergency can be claimed. For example, the imminent danger must suggest that the probability of a violation of legal interests is high, or a persistent violation of legal interests must have already occurred. However, the danger itself does not have to have been brought about unlawfully. The emergency response must meet two requirements in order to be considered appropriate: that of subsidiarity and proportionality. In contrast to self-defense, the emergency reaction requires absolutely subsidiarity: there must be no other, milder alternative possible if one interferes with the legal interests of uninvolved third parties. Proportionality is also stricter in this case. Thus, the protection of a higher-value legal interest at the expense of a lower-value interest is appropriate, but the legal interests may not be considered of equally worth. The same applies if one helps a person who is in a state of emergency and in doing so violates the legal interests of a third person. If the limits of Article 17 of the Criminal Code are exceeded, this is an excess of the state of emergency. Do you need legal assistance? Our lawyers in Switzerland are ready to assist you.