6 posts / 0 new
Last post
Pierre
Pierre's picture
Swiss Self-Defense Law

Hi Folks,

Here is the Swiss law about self-defense (my translation). I find it very clear, and was impressed by the fact that is takes "going too far" into consideration, and is ready to excuse it. 

I'd be very interested to know your thoughts about this law, and how it compares with the law in your country.

Legitimate defense / Art.15

Anyone who is, against the law, attacked or threatened by an imminent attack, has the right to repel the attack by means proportionate to the circumstances ; the same right belongs to third parties.

Excusable defense / Art. 16

If the author, while repelling an attack, has exceeded the limits of legitimate defense in the sense of art.15, the judge alleviates the sentence.

If this excess comes from an excusable state of excitation or of shock caused by the attack, the author is not acting in a culpable way.

State of licit necessity / Art.17

Anyone who commits a punishable act in order to preserve from a danger both imminent and impossible to avoid a property belonging to him or to a third party is acting in a licit way if he thus saves preponderant interests.

State of excusable necessity / Art. 18

If the author commits a punishable act in order to preserve himself or someone else from a danger both imminent and impossible to avoid that threatens the life, the corporeal integrity, the freedom, the honor, the property or other essential goods, the judge alleviates the sentence if the sacrifice of the threatened good could reasonably be required from him.

The author does not act in a culpable way if the sacrifice of the threatened good could not be reasonably required from him.

Heath White
Heath White's picture

In the US the self-defense laws vary from state to state.  Pretty much everywhere has the basic idea behind your Art. 15, that you can defend yourself or others from attack or imminent attack.  My state, North Carolina, has a law like Art 17 where you can use reasonable force to protect property as well; I don't know about elsewhere but I would imagine it is pretty common. 

I have never heard about a law like Art 16, although it makes sense and presumably judges/juries take such things into account.

One difference is the "impossible to avoid" clause.  In North Carolina and other "stand your ground" states, you have no duty to retreat or try to avoid/get away from an attack or threat.  About half of states have a law like this and most are fairly recent. 

In Art 18 I was interested in the clause about defending "honor." What does this cover?  In the US, it is basically never okay to engage in physical violence in reply to a verbal assault.  This was not always the case but it has been law for a long time now.    

PASmith
PASmith's picture

Saw a video by Jorg Sprave on Youtube that mentioned the "honor" part of self defence in Germany too.

Pierre
Pierre's picture

Yes, the principle of Art16 must be quite rare. One of the many swiss oddities I guess (like the fact that each male citizen keeps his army rifle at home!)... Though it makes sense.

And, sure, "honor" is a very vague notion (so is "freedom"). 

Iain Abernethy
Iain Abernethy's picture

Hi All,

Interesting topic! I obviously know nothing about Swiss law but, based on what I can see here, there are some parallels with the law here in England and Wales:

Pierre wrote:
Anyone who is, against the law, attacked or threatened by an imminent attack, has the right to repel the attack by means proportionate to the circumstances ; the same right belongs to third parties.

It would seem that the threat of an attack would legally justify the use of proportionate force. The follow up question would be: How do we decide, in law, if an attack was imminent or not?

Here is England and Wales, it is based on the “honestly held belief” of the person claiming self-defence; regardless of whether that belief was mistaken or even unreasonable. It simply needs to be honestly held, with the burden of proof being on the prosecution to prove it was not. Beliefs based on “voluntary intoxication” are excluded from the above.

Pierre wrote:
If this excess comes from an excusable state of excitation or of shock caused by the attack, the author is not acting in a culpable way.

Again, this is similar to the law of England and Wales:

Criminal Justice and Immigration Act 2008, Section 76 (7):

(a)that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and

(b)that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

Pierre wrote:
… the life, the corporeal integrity, the freedom, the honor, the property or other essential goods, the judge alleviates the …

I’d be interested to know what the legal definition of “honour” is? If it is to prevent a person being subject to some form of degradation (i.e. lasting emotional harm) then I can see where that is coming from and the use of force to prevent that harm would seem to be entirely appropriate. However, if it permits the use of force in response to a challenged ego, then that would seem to permit the use of force in a wide range of situations that I personally would not class as self-defence i.e. “You wrote a sarcastic comment on my social media post, which I felt made me look silly, and therefore you offended my honour!”

Does Swiss law define terms? Is there case law that clarifies these terms?

All the best,

Iain

Pierre
Pierre's picture

Hi Iain,

First of all, thank you very much for your signed copy of "Throws for Strikers"! It's exactly what I needed.

There are other mentions of the term "honour" in Swiss law, in the articles about slander, but the word is not defined either. So, yes, I guess there is quite a range of interpretation for the judges...

Best regards,

Pierre