Professional Documents
Culture Documents
Criminal Law 2 Week 1
Criminal Law 2 Week 1
JUSTIFICATION
STATE OF NECESSITY (TPC ARTICLE 25/2)
Legitimate Defence and Necessity
Article 25
(2) No penalty shall be imposed upon an offender in respect of acts
which were committed out of necessity, in order to protect against a
serious and certain danger (which he has not knowingly caused) which
was directed at a right to which he, or another, was entitled and where
there was no other means of protection, provided that the means used
were proportionate to the gravity and subject of the danger.
STATE OF NECESSITY
The basis of this reason for compliance with the law itself consists in the legal
recognition of the instinct of protection again.
While arranging the state of necessity in the TPC, the definition of the state of
necessity that eliminates the illegality in the German Penal Code is taken as the
basis, but it is claimed by some authors that this is a reason that removes the
culpability according to the TPC, but not a ground for justification.
Necessity is different from legitimate defense as the act is perpetrated against not
the attacker but against a third person who has nothing to do with the danger caused
and this innocent third party is being harmed in order to be protected from the
dangerous situation.
Since this reason for compliance with the law is in the form of harming third
parties, its morality has also been the subject of discussion. Equitable compensation
can also be paid for the damage caused.
STATE OF NECESSITY
In order to be able to speak of a state of necessity,
There must be a serious and imminent (severe and definite) danger. The cause of the danger can be
natural forces, animals or other humans. If the source is a human, here different from the legitimate
defence, the harm is given to a third person.
The danger may be directed to any right. This right might belong to the perpetrator or to a third party. The
acknowledgment of the danger to all kinds of rights has made the situation of necessity in favor of others
extremely controversial..
The perpetrator must not have knowingly caused the danger (no self-induced necessity). The source of
this is the thought that no one can claim rights based on their own fault. In order to benefit from the state
of necessity, perpetrator mustn’t have performed the conduct that was the cause of the danger. It is not
enough to know the action that causes the danger, the result must also be known. But it is sufficient to
foresee this result, it is not necessary to have wanted it. Thus, the person who caused the danger by intent
or adverent/conscious negligence cannot benefit from this situation. Inadverent/unconcious negligence
can be accepted so the negligent can benefit from the state of necessity.
STATE OF NECESSITY
For the protective conduct;
The protedtive conduct should be mandatory in terms of actual protection. If the perpetrator is left
with the option of inflicting damage and bearing the damage, then there is an obligation to defend.
There must be a real inevitability here. As an innocent third person is being harmed, different from
the legitimate defense, this requirement is interpreted strictly for neseccity and the perpatrator cannot
benefit form the state of necessity when it was possible to escape from the danger without
committing a harmful act.
Those who are obliged to confront the danger (fire man, police officer) cannot benefit from the state
of necessity saying that they are in a necessity condition and the protecting act is mandatory. Also in
order to save these persons, state of necessity in favor of the third party shall not be applied.
The possible harm caused by the danger should be proportional to the harm inflicted by the
perpetrator. Damage caused may be equal to or less than the threatening damage (danger).
STATE OF NECESSITY
Requirements regarding the danger: serious and
imminent danger, danger directed at a right, not
causing the danger knowingly
Requirements regarding the protection: No other
option to be protected from the danger, no
obligation to confront the danger, proportionality
between danger and the act of protection,
State of
Necessity
Requirements Requirements
Regarding Regarding
Danger Protection