News on self-defence

Published by Katharina Kock on Fri, 12/16/2022 - 18:21

The decision was based on a case in which a victim of an (attempted) robbery shot three times after the perpetrators and hit one of them with the last shot.

The defendant, a trained shooter, wanted to illegally purchase a pistol for 4,000 euros. He met the seller at a tram stop to complete the purchase. Besides the money, he had a firearm with him just in case. The seller first demanded that the money be handed over. The accused suspiciously refused. Thereupon the other man first drove away and then returned with another man. This man also demanded payment first. The accused buyer took the money out of his jacket and showed it. He got a charge of pepper spray in the face, the seller's companion snatched the 4,000 euros from him and both fled. The accused first ran after them and unsuccessfully demanded his money back. Then he shot twice after them. He aimed at their upper bodies but missed, although they were only about three metres away from him. When one of them was already out of the field of fire, the accused shot again from about 25 metres away and hit under the collarbone. When he saw that the man he had hit was still running, he gave up the chase. The Bremen Regional Court sentenced the accused to six and a half years imprisonment for attempted manslaughter. On appeal, the Federal Supreme Court overturned the sentence and referred the case back for further clarification.

In the underlying decision of the Bremen Regional Court, the potentially fatal shots had been considered as a single act and their necessity had been denied, so that the shots had therefore not been justified by self-defence. The Federal Supreme Court, on the other hand, ruled that the last shot at only one robber should have been assessed separately, because different conditions had existed for the shooter here. The last shot had only been fired at one man, whereby it was unclear whether this man had the money and whether the accused had even been able to see which of the two fugitives was carrying the money due to the tear gas. In this respect, the 5th Criminal Senate demanded further clarification of the facts in order to be able to assess whether the third shot was at all still suitable to prevent the loot from being secured. Only if, from an ex ante point of view as a carefully observing defence lawyer, he could not recognise who had the money, would the shot at each of the robbers have been a chance to recover the loot. On the other hand, according to the BGH, the further distance to the robber and the fact that before the final removal of the last perpetrator, there was only one possibility to shoot must be considered separately.