Since I am an American in Germany I have had this discussion with a few Germans but haven't got a concrete answer. If i am at home in Germany and someone breaks into my house and I see that they have a gun am i allowed to use a gun that I have legally or a knife as self defense?
This is governed by Sections 32 through 35 of the German Criminal Code which are admittedly a bit vague:
FOURTH TITLE: SELF-DEFENCE, NECESSITY AND DURESS
Section 32 Self-defence
(1) A person who commits an act in self-defence does not act unlawfully.
(2) Self-defence means any defensive action that is necessary to avert an imminent unlawful attack on oneself or another.
Section 33 Excessive self-defence
A person who exceeds the limits of self-defence out of confusion, fear or terror shall not be held criminally liable.
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.
Section 35 Duress
(1) A person who, faced with an imminent danger to life, limb or freedom which cannot otherwise be averted, commits an unlawful act to avert the danger from himself, a relative or person close to him, acts without guilt. This shall not apply if and to the extent that the offender could be expected under the circumstances to accept the danger, in particular, because he himself had caused the danger, or was under a special legal obligation to do so; the sentence may be mitigated pursuant to section 49(1) unless the offender was required to accept the danger because of a special legal obligation to do so.
(2) If at the time of the commission of the act a person mistakenly assumes that circumstances exist which would excuse him under subsection (1) above, he will only be liable if the mistake was avoidable. The sentence shall be mitigated pursuant to section 49(1).
In practice, to the extent that you are in genuine fear for the safety of a human being from an intruder armed with a gun, in all likelihood you would be justified in using a deadly weapon in self-defense unless there was some reason that you could protect yourself completely without doing so, for example, by retreating into a panic room.
On the other hand, if your fear is only for property and not harm to a human being, you are probably not justified. Certainly, for example, you would not be justified in shooting and killing a fleeing burglar, or someone rustling your cattle out of your barn.
Germany does not have a "stand your ground" law, or something similar that automatically makes shooting someone who is an intruder in your home lawful. But, if a guy with a gun intrudes and puts some innocent person at genuine risk, it would be justified to defend yourself - and Section 33 gives you the benefit of the doubt in close cases.
Deadly self-defense is legal in Germany. The self-defense law (in particular Sect. 32 of the Criminal Code) makes no restrictions as far as the type of aggression and the type of defense is concerned. That means that - in principle - you can defend yourself against an attack by any means that is necessary to stop it. The principle behind that is "das Recht muss dem Unrecht nicht weichen", which translates to "the law does not have to yield to the unlawful". That particularily means that:
- You do not have to run.
- You do not have to yield.
- You do not have to wait for help from public authorities (notably the police).
You can defend yourself (against any attack on you, be it life, limb or property), no matter if that would mean commiting a crime (even if that crime is killing a person). This is called "Trutzwehr" or "schneidiges Notwehrrecht", which can be translated to "active defense" or "aggressive defense" as opposed to passive defense.
This regulation is not without pitfalls and limitations. There are quite a few, which means that in practice deadly force could be considered unlawful in self-defense. Books have been written about this subject alone, so it can not be exhaustively handled here. Some examples for corner cases are:
- Attackers that clearly can not understand the severity of their actions have to be spared from extreme effects of your self-defense. The classical book case is that you can't shoot little children stealing apples from your tree.
- If there is a massive discrepancy between what you want protect and the damage the attacker has to endure (called "qualitativer Notwehrexzess" - translating to "qualitatively eccessive self-defense"). If someone insults you, shooting him might go to far, since while your honour is attacked (which is protected by Sect. 185 Criminal Code), the attacker's life (protected by Sect. 212 Criminal Code) by far outweighs it. Note that, to ensure the effectiveness of the self-defense laws, the discrepancy must be extreme. And it does not mean you can't defend yourself. You just have to choose a less severe measure. So you might get away with knocking the insulter out.
- After the attack is over you hit the attacker once too often, which causes his death (called "quantitativer Notwehrexzess" - "quantitatively eccessive self-defense"). The attack was over at the time of the deadly blow, so your right for self-defense had ended. You might get away without punishment, if it was impossible for you to realize that the attack was over.
- If you only think an attack is happening, but it is not (for example someone attacking you with a rubber knife on Halloween). In this case there is no attack and so technically there is no right for self defense (called "Putativnotwehr"). Similar to the cases of excessive self-defense, it depends on your individual case (notable if you had a chance to realize the attack was false) if you are punished or not.
To sum it up: You have the right to defend yourself by any means necessary, but you are held responsible if you go to far (not just a little, but really really to far).
This is very unlikely to happen because nobody in Germany commits burglary with a gun, and practically no home owner has a gun ready for use instead of locked. So while ohwilleke's quotes are right, in that situation you will have a very, very hard time convincing the police and a judge that you didn't apply excessive force.
Someone breaking in your house with a gun isn't considered an imminent unlawful attack. Carrying away your TV or jewellery is not an attack. There is a risk that there might be an attack, but it's not imminent. Just because you say you use a gun or knife "as self defence" doesn't make it self defence.
I've had a student of law in Germany explain to me that in this example case (part of his studies):
A teenager breaks off a part of a car. The owner sees this happening and fires a low-caliber sports gun, hitting and killing the teenager in a fringe accident, e.g. tearing an artery close to the skin.
the actual judgment may depend on whether or not the teenager pocketed the part broken off:
- if the teenager pocketed the part, that's theft (regardless of the value of the item). The crime is ongoing while the teenager is carrying the part. The owner has the right to defend their property (the part broken off the car, not the car!) by appropriate means, e.g. firing a gun at the legs with intent to hinder the teenager from escaping (even if serious wounds are probable).
- if the teenager let the part fall to the ground, the crime committed is property damage instead. The damage is done and the crime can neither be stopped nor prevented. The owner is not allowed to shoot at all.
- if the owner uses a hunting rifle instead of the sports gun the means could (and probably would) be deemed inappropriate, because a hunting rifle aimed at a human can be interpreted as intention to kill (instead of stopping the crime).
- the owner can be hold accountable for neglect of help, if not calling an ambulance as soon as possible (after becoming aware of how badly the shot wounded the teenager)