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I recently watched a German crime series and there was the following situation:

  • Kidnapper kidnaps several hostages
  • Hostage A wants to break free
  • Hostage B joins them (voluntarily)
  • Near the exit they are confronted by the kidnapper
  • Hostage A pushes hostage B towards the kidnapper to gain time
  • Kidnapper immediately shoots hostage B
  • Hostage A can escape

In the show there was no "conclusion" for that part and I also would not have expected any that would be according to any real world laws but I was wondering, what would happen to hostage A? They used hostage B as some kind of a human shield or at least distraction to escape and in that course hostage B died. Is this self defence?

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In German law, Notwehr is the (minimum required) defense against a present unlawful attack. B did not attack A, so A could not use Notwehr as a justification for shoving B.

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  • Does A need to justify shoving B? Feb 4 at 20:37
  • 1
    The real problem is: B is dead. Is A guilty of shoving him, or somehow responsible for B's death, when B was killed by the kidnapper?
    – gnasher729
    Feb 4 at 22:29
  • @YanickSalzmann, shoving is an attack. It is not justified by self-defense.
    – o.m.
    Feb 5 at 5:35
  • @gnasher729, the kidnapper is a murderer. I doubt that anyone would try A as accessory to the murder, but that does not make the shoving attack go away. Imagine two men floating in the ocean, with one lifebuoy between them. One of the survivors hits the other to get the lifebuoy first. That might not be prosecuted, but that doesn't make it right.
    – o.m.
    Feb 5 at 5:43
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Is this self defence?

Yes

German self-defence laws may be found in within Chapter 2, Title 4 of the German Criminal Code at sections 32 to 35:

Section 32 Self-defence

(1) Whoever commits an act in self-defence does not act unlawfully.

(2) ‘Self-defence’ means any defensive action which is necessary to avert a present unlawful attack on oneself or another.

Section 33 Excessive self-defence

Whoever exceeds the limits of self-defence due to confusion, fear or fright incurs no penalty.

Section 34 Necessity as justification

Whoever, when faced with a present danger to life, limb, liberty, honour, property or another legal interest which cannot otherwise be averted, commits an act to avert the danger from themselves or another is not deemed to 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. However, this only applies to the extent that the act committed is an adequate means to avert the danger.

Section 35 Necessity as defence

(1) Whoever, when faced with a present danger to life, limb or liberty which cannot otherwise be averted, commits an unlawful act to avert the danger from themselves, a relative or close person acts without guilt. This does not apply to the extent that the offender could be expected, under the circumstances, to accept the danger, in particular because said offender caused the danger or because of the existence of a special legal relationship; the penalty may, however, be mitigated pursuant to section 49(1), unless the offender was required to accept the danger on account of the existence of a special legal relationship.

(2) If, at the time of the commission of the act, a person mistakenly assumes that circumstances exist which would provide an excuse under the terms of subsection (1), that person incurs a penalty only if the mistake was avoidable. The penalty must be mitigated pursuant to section 49(1).

Section 49(1) provides for a reduction in sentence if offender is found culpable by the court

Ultimately it would be a matter for the judge(s) to decide, but given the circumstances in the OP I suggest that being kidnapped and then "confronted by the kidnapper" who has a firearm equates to a s.32(2) "unlawful attack".

s.33 appears to adequately cover Hostage A's use of Hostage B as a human shield in the given circumstances, as do the first sentences of s.34 and s.35 for Hostage A's justification and necessity for doing so.

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  • Does S. 34 really apply? After all, A's protected interest doesn't substantially outweighs the interest of B which is interfered with by A's action. Furthermore, A may claim that pushing B was the only way to avert the danger posed by the kidnapper, but there may have been an obvious second way: aborting the escape. And if A deliberately pushed B to win time, you could argue that A is not protected by S. 33 because the push was a calculated move, not an action out of fear, confusion, or fright. As you say, this would be a matter for judges to decide, but the case isn't clear-cut at all to me.
    – Schmuddi
    Sep 30 at 16:50
  • S. 34 would NOT apply here according to the prevailing opinion, however, s. 35 would apply. S. 35 does not justify A's actions, it merely excuses them, meaning they did act unlawfully but will not be punished.
    – Robb
    Oct 1 at 6:22
  • One can only answer according to the information given, and most (if not all) of that prevailing opinion is just one of many different hypothetical scenarios that can be made up by adding things such as assumptions about A's state of mind at the time that don't appear in the question.
    – Rock Ape
    Oct 1 at 7:36
  • Except there is a strict systematic difference between the sections in German criminal law. See for instance de.wikipedia.org/wiki/Notstand#Entschuldigender_Notstand
    – Robb
    Oct 4 at 8:19

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