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The justifiable state of necessity is a ground for justification under criminal law which is enshrined in Art. 17 SCC. If this justification is applied to a case, the perpetrator is not deemed to have acted unlawfully. In case of any uncertainties, our lawyers for criminal law in St. Gallen, Zurich and Frauenfeld are at your disposal.
Existence of a state of emergency
A justifiable situation of necessity requires the existence of a state of emergency. For this, there must be an immediate and not otherwise avertable danger to the legal interests of the perpetrator or a third person. Danger is recognized if there is a certain probability of damage occurring to the individual legal asset. The danger must also be recognizable from the external perspective of a third party in the situation of the perpetrator (ex ante). The danger is considered imminent if the damage is imminent or if the individual legal interest can only be protected by a defense at the last moment or if the defense would later be much riskier. Another sufficient justification is permanent danger, i.e. the violation of a legal interest that is constantly under attack. The cause of the danger is essentially irrelevant.
Defensive action
The defensive action must not be avertable in any other way: it must be a suitable and the mildest means of averting the danger. Unlike self-defense, there is a duty to flee or evade, insofar as this is possible. If it is possible to fall back on legal procedures or assistance from the authorities (e.g. the police), these options must first be exhausted, unless the danger cannot be eliminated in time in this way. In addition, the defensive action must serve to protect higher interests. To determine this, the interests must be weighed against each other, taking into account all the circumstances of the act. Criteria for this are the rank of the legal interests at stake (e.g. physical integrity vs. property) or the extent of the threatened damage (e.g. cruciate ligament rupture vs. bruise). However, a qualitative assessment of human life is frowned upon; the life of a healthy person is no more valuable than the life of a sick person. The number of people affected does not increase the weight of the legal interest at stake (e.g., 100 lives do not ‘weigh’ more than one). Lawyers for criminal law in Zurich, St. Gallen and Frauenfeld can determine whether a defensive action was in line with an adequate weighing up of interests.
Subjectively, it is assumed that the perpetrator is aware of the state of emergency and acts with the intent to save. If the objective and subjective requirements of necessity are fulfilled, a situation of necessity exists and the perpetrator does not act unlawfully.
In addition to the person at risk, a third party is also entitled to act in an emergency in order to avert the danger. The same conditions apply to the emergency helper as to the person in danger. However, the danger may not be averted against the will of the person in danger.