Is it okay to push someone off your property if you've told them to leave but still didn't. Germany

Question

I was in a fight with an apartment mate of mine. I have told her to leave my room after she took the remote and turned off my tv, but she did not leave. So I pushed her out of my room, she then proceded to slap and punch me in the face 5-10 times which I haven't retaliated to, just kept telling her to stop and that I do no want to harm her. My question is: am I in the wrong for forcefully pushing her out of my room after telling her to leave, in the whole fight I have bruised her wrist by preventing her from bashing my head and also I have bruised her leg by phisically pushing her out of my room. I did not hit her, I only pushed her out. I only need advice based on the laws of Germany, thank you.

Answer 1

An act in self defense is legal (StGB §32): "(1) Whoever commits an act in self-defence does not act unlawfully". However, "(2)'Self-defence' means any defensive action which is necessary to avert a present unlawful attack on oneself or another" – removing a trespasser is not necessary to avert an unlawful attack. This does not apply to removing an annoying person. Under §223, physically assaulting a person is a punishable offense. Pushing a person is one form of assault (so is punching them or pummeling them, perhaps a more severe form depending on the physical damage done).

However, the response is also criminal because it goes past that which is necessary to avert the assault (a push is not a license to commit mayhem). Under §§33-35 there are defenses for excessive self-defense ("Whoever exceeds the limits of self-defence due to confusion, fear or fright incurs no penalty"), which don't seem applicable in this situation (rage is not the same as fright).

Answer 2

This would seem to be to be governed by StGB § 34 (which includes defense of property) as well as StGB § 32 (which pertains to defense of your own person or another person). In English translation Section 34 states:

Section 34 (Necessity)

A person who, faced with an imminent danger to life, limb, freedom, honour, property or another legal interest which cannot otherwise be averted, commits an act to avert the danger from himself or another, does not act unlawfully, if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of the danger facing them, the protected interest substantially outweighs the one interfered with. This shall apply only if and to the extent that the act committed is an adequate means to avert the danger.

In all likelihood, shoving someone to cause them to cease trespassing, an act that interferes with your property rights, would be justified by the necessity standard of Section 34 of the German Criminal Code.

In contrast, Section 32 of the German Criminal Code states:

Section 32 (Self-Defense)

(1) A person who commits an act in self-defense does not act unlawfully.

(2) Self-defense means any defensive action that is necessary to avert an imminent unlawful attack on oneself or another.

The instance in which you "pushed her out of my room, she then proceded to slap and punch me in the face 5-10 times" could implicate Section 32, although it could also be interpreted as her self-defense from your physical contact with her. However, since at that point "I haven't retaliated to, just kept telling her to stop and that I do no want to harm her" it isn't clear that there is any use of force by you invoking Section 32 at that point.

But, this statement is apparently qualified by the statement that: "I have bruised her wrist by preventing her from bashing my head" which would be a use of force although it would be proportionate in all likelihood and be covered by Section 32. The only concern would be that your right of self-defense might be impaired by you acting as an aggressor criminally assaulting here, but you were not probably not deprived of a right to self-defense by being an aggressor since when you "bruised her leg by physically pushing her out of my room" you were acting with justification from Section 34.

Even if Section 32 applied, however, only action that is "necessary to avert an imminent unlawful attack" is authorized, so killing would not be authorized if shoving is sufficient, contrary to the analysis of @KaiBurghardt

Answer 3

The question boils down to self-defense, yes/no? Since the short answer wasn’t accepted, here’s the long answer:

1. elements of offense (Tatbestand)
   Some crimes are eligible for an exempting consent (tatbestandsausschließendes Einverständnis), but for the purposes of this answer we say you’re factually committing a crime, whatever it is. [I could only think of 239, unlawful imprisonment, because everything else lacks of criminal intent, and 229 requires negligence on your part.]
2. unlawfulness (Rechtswidrigkeit)
   The elements of the offense indicate unlawfulness, unless the offense was warranted.
   1. self-defense (Notwehr)
      Alex’s crime could be warranted under § 32 StGB, self-defense.
      1. self-defense situation (Notwehrlage)
         A self-defense situation is required. A self-defense situation is a present unlawful attack.
         1. attack (Angriff)
            An attack is any potential violation of protected individual interests through human action. Alex’s roommate is consciously slapping and punching Alex. Furthermore, she does not remove herself from his room the after unequivocally being ordered to do so. The individual interests bodily integrity, protected for instance by § 223 Ⅰ StGB, and inviolability of the home, protected for instance by § 123 Ⅰ StGB, could potentially be violated by these actions. An attack is therefore given.
         2. at present (gegenwärtig)
            The attack must happen at present. At present includes imminent, lasting and unfinished attacks. Although every individual slap/punch is finished, Alex has reason to believe (unless there were there signs of her “calming down”) his roommate will slap/punch him again. This constitutes an imminent attack. Furthermore, following the order to vacate the room, this attack is unfinished until she leaves Alex’s room. The attack is therefore happening at present.
         3. unlawful (rechtswidrig)
            The attack needs to be unlawful. This means, for instance, that the attacker herself could not claim to act in self-defense. The facts of the case do not show any evidence for that, thus the attack was unlawful.
         4. intermediate result
            The present case constitutes a self-defense situation.
      2. act of self-defense (Notwehrhandlung)
         Alex’s actions must pose an act in self-defense.

         1. infringement (Eingriff)
            His actions must exclusively infringe protected interests of the attacker. Here, Alex’s roommate’s bodily integrity and her freedom to move are infringed. Thus Alex’s actions are directed against the attacker.

         2. suitability (Geeignetheit)
            Alex’s actions must be suitable. This means the actions must in principle be fit for stopping the attack, but at least inhibit it. Pushing his roommate toward the room’s exit is suitable to stop the trespassing attack, and, after locking the door, stop any battery, too. Hence, Alex’s actions are suitable.

         3. necessity (Notwendigkeit)
            The self-defense actions has to be necessary. Necessary is any action if there is no as suitable more lenient action available.

            Alex could flee the room. However, although this is more lenient it does not guarantee the attack is prevented or inhibited, thus not as suitable as pushing her.

            More lenient, yet as suitable self-defense actions are not apparent. The chosen action of pushing her is therefore necessary.

         4. adequacy (Gebotenheit)
            The act of self-defense needs to be adequate. Adequacy is, for instance, denied if the infringed protected interests of the attacker and victim are in disproportionate relation to each other. For example a minor non-public verbal insult, protected interest honor, does not warrant infringing the protected interest life. It is furthermore considered inadequate to act in self-defense against children or obviously mentally sick.

            To some degree restrictions apply if a personal relationship exists between the attacker and victim. For instance, married people or romantic couples, parents against their children or people obligated to protect the attacker [teachers in school, practicing doctors, or orphanage/asylum staff] have to “accept” attacks to a certain degree of intensity. This is not the case with Alex and his roommate.

            Lastly, it is inadequate to act in self-defense if the attack was provoked. Alex did not deliberately [or negligently] set cause for his roommate’s attack. His self-defense is considered adequate, too.

         5. intermediate result
            Alex’s actions represent an act of self-defense.

      3. wish to defend (Notwehrwille) [a controversial point]
         Alex needs to want to act in self-defense.
         1. knowledge of self-defense situation (Kenntnis der Notwehrlage)
            Alex was aware of all details of the self-defense situation.
         2. knowledge that actions serve the purpose of self-defense
            He was also aware that his actions are to defend himself.
         3. will to defend (Verteidigungswille)
            Alex actually wants to stop the attack through his actions.
         4. intermediate result
            The subjective elements of self-defense are fulfilled, too.
      4. intermediate result
         Alex’s factual crime is warranted by the right of self-defense.
   2. intermediate result
      Alex’s actions are not unlawful.
3. final result
   Alex’s actions do not constitute a crime.

PS: Yes, it can even be allowed to kill someone under the self-defense doctrine, see this answer for an explanation.