Self-defense is a cause for criminal irresponsibility whereby the person invoking it justifies having committed an offense in response to an attack on themselves, another person, their property, or another person's property.
The conditions necessary for characterizing assault
The assault must meet several conditions: it must be directed against a person or property, and it must be real, unjust, and current.
A. The assault must be directed against a person or property.
While for a certain period of time self-defense could only be exercised when the attack was directed at a person, it is now possible to act when the "attack" is directed at property. Indeed, the second paragraph of Article 122-5 of the Criminal Code states that "A person who, in order to stop the commission of a crime or offense against property, performs an act of defense (...) is not criminally liable."
Thus, the judges ruled that a person who threatened thieves who had just burgled a shopkeeper's store with a weapon had acted in self-defense (Crim. November 19, 1979).
B. The actual and unjust nature of the aggression
The attack in question must first be "real." It therefore follows that the person who defended themselves must have had reasonable grounds to believe that there was a danger.
Thus, pursuant to Article 122-6 of the Code of Criminal Procedure, a person is presumed to have acted in self-defense if they have taken action to repel, at night, a break-in, violence, or deception in an inhabited place.
Case law on the subject:
Indeed, the Criminal Division of the Court of Cassation ruled that "a shopkeeper who, having surprised a burglar in his store adjoining his home at night, used the hunting rifle he had armed himself with when he saw the man suddenly lunge forward despite having ordered him not to move. " (Crim. November 15, 1979).
It is important to note that, in addition to being real, the attack must be "unjust." By this, the judge means that he does not want to allow the characterization of self-defense when the offense is classified as "just," such as blows struck against police officers while they were performing their duties (Crim. February 9, 1972, Appeal No. 71-91.349).
The sovereign judgment of the courts:
The attack against which self-defense is exercised must be current; indeed, defense cannot be declared necessary when no attack is in progress.
Thus, the attack and the defense must occur at the same time. In fact, in 1927, the judges of the Criminal Division of the Court of Cassation handed down a decision described as a "landmark ruling" according to which "self-defense is only authorized to repel an immediate harm, because only then does it become necessary " (Crim. June 27, 1927).
The judges' assessment of the actual, unfair, and current nature of the situation is, apart from certain situations, purely casuistic.
The risk with casuistry is that the assessment of these characteristics will therefore vary from one judge to another, which is why if you find yourself in a situation where you believe you acted in self-defense, you should consult a lawyer specializing in criminal law, as they will be best placed to argue the circumstances in which the assault took place.
The conditions necessary for the exercise of self-defense
It must meet two conditions: it must be necessary and proportionate to the attack.
A. The necessity of defense
This necessity is explained by the fact that defense must be the only means of averting danger. That is why, in order to be considered "necessary," defense must necessarily occur when the attack has just been committed or when it is imminent.
The defense cannot therefore intervene before the attack, which constitutes a so-called "putative" attack, or after it, which constitutes "revenge."
The line between necessary defense and revenge or even relentless persecution is sometimes extremely fine. Added to this is the fact that the injuries suffered by the aggressor are sometimes significant, which further blurs the line between all these states.
It is therefore very important that you contact a lawyer specializing in criminal law so that they can help you prove the necessity of your defense.
B. The proportionality of the defense
One of the most important characteristics of self-defense is that it must be proportionate to the severity of the act of aggression. Otherwise, self-defense is excluded in accordance with Article 122-5 of the Criminal Code, "if there is a disproportion between the means of defense used and the severity of the offense."
Thus, someone who responds to physical aggression in a bar by hitting the aggressor with a bottle is not acting in self-defense because of the disproportion between the defense and the aggression, as the bottle is considered a dangerous weapon (Crim. November 21, 1961).
It was also considered that the assault and battery resulting in unintentional death, following strangulation by a skilled judoka in response to a punch from the attacker (CA Grenoble, November 5, 1992).
Even if it is a cause of criminal irresponsibility, an offense has still been committed by the person invoking it, so there remains a risk that the latter will be convicted for committing this offense if the state of self-defense is not recognized.
It follows that even if you believe you responded to an attack in self-defense, you should hire a criminal defense attorney to limit the risk that the defense you believe to be legitimate will backfire on you.
Proof of self-defense
With regard to evidence, it is up to the person invoking this ground for non-liability to prove that they were acting in self-defense.
However, a qualification has been made to this principle, as Article 122-6 of the Criminal Code establishes two situations in which a person who claims to have acted in self-defense does not need to provide proof of this.
Thus, pursuant to Article 122-6 of the Criminal Code, anyone who attempts to repel an individual who has broken into an inhabited place at night by means of force, violence, or trickery is presumed to have acted in self-defense and does not need to provide proof that they were in such a state.
Also according to Article 122-6 of the Criminal Code, when defending oneself against perpetrators of theft or looting carried out with violence, the person who defended themselves benefits from a presumption of self-defense and does not have to bear the burden of proof.
It is important to emphasize that if self-defense is proven, it benefits all participants in the offense, whether they are co-perpetrators, accomplices, etc.
In addition, the characterization of self-defense exempts those who benefit from it from any civil action for damages.
This is a behavior that is often sudden or even spontaneous. As a result, it can be very difficult to prove that one was acting in self-defense.
It is therefore in your best interest to seek the assistance of a lawyer specializing in criminal law so that they can use their expertise to establish that the situation was one of self-defense and, as a result, enable you to benefit from an exemption from criminal liability.
Please feel free to contact Attorney Avner DOUKHAN for any further information.