Reading Current Events Through the Law: Self-Defence, Defence of Others and Exceeding the Limits of Self-Defence

Murat Volkan Dülger^* / Onur Özkan^*

I. Introduction

Self-defence is one of the concepts of criminal law that come to mind first when criminal law is mentioned and that receive the most attention in public opinion. An incident¹ that has recently dominated the country's agenda has brought the concept of self-defence to the fore once again and made it a topical subject of debate. Indeed, this recent development has also shown that, widely used though it is, self-defence is just as widely misunderstood. As a result, a great deal of erroneous and incomplete information on the subject has circulated, particularly on social media. In this short study we therefore wished to offer our readers basic and concise information on self-defence. The study will deal with self-defence in general. Thereafter we shall also try to introduce the concepts of exceeding the limits of self-defence and of self-defence on behalf of a third party, of which we have found awareness to be lower; in short, we shall try to interpret current events through the law.

It must first be noted that, when the case is examined, the incident is seen to have begun as self-defence on behalf of a third party, but that the attack was subsequently directed at the perpetrator who was acting in defence of the third party, and that this person then acted in defence in order to protect himself. Accordingly, “if this is so”, the defensive acts carried out after that stage of the attack must now be considered within the scope of the individual's self-defence of a right of his own. Art. 27 of the Turkish Criminal Code, concerning the exceeding of the limits of self-defence, likewise appears capable of being brought into the discussion. The aim is thus to provide in this study information on the concepts that may be relevant to the subject.

Having explained what our aim is, it is just as important to explain “what it is not”. With this study we have absolutely no intention of expressing any legal opinion addressed to the investigating and prosecuting authorities on the criminal incident that brought the subject to our attention and provided our motivation for writing. For the bodies that will come into direct contact with the evidence and announce the final decision are the investigating and prosecuting authorities. To express an opinion on the matter merely on the basis of a view of the incident formed from press reports, without having come into direct contact with the evidence and without having command of the contents of the case file, would be a highly mistaken approach.

We believe that all our readers who are lawyers will answer “yes” to the question “Is self-defence on behalf of a third party possible?” and that they have internalised this answer. We are of the view, however, that it would not be right to make such a generalisation for our readers who are not lawyers. At a time when violence against women and children unfortunately still remains a topical social problem, it is of great importance that accurate information be provided on the concept of self-defence on behalf of a third party in particular. In addition, it is also extremely important to explain concepts such as self-defence and the exceeding of the limits of self-defence. We therefore feel the need to shed some light on these concepts. Owing to the scope of our study, the subject will be presented in its general dimension and, owing to the aim of our study, in a simple and comprehensible manner. It should be known that the concept of self-defence occupies a very important place in criminal law and that, besides being explained in detail in all textbooks, it has also been the subject of many monographs². For the theoretical debates and for further information, reference may be made to the sources given in the footnote and to all textbooks on the general part of criminal law.

II. Self-Defence

A. The Origin, Rationale and Necessity of Self-Defence

Not only human beings but every living creature acts with the aim of sustaining its life. Indeed, every act of every living creature can be seen to serve the purpose of sustaining its life, improving its quality of life and continuing its existence as a species. For this reason too, every living creature, when faced with an unjust attack, shows a necessary and natural reaction in order to defend itself or another. This reaction is a defensive reflex. Human beings, as a species of living creature, show this reaction as well.

The legal order is, as a matter of principle, directed towards the protection of rights. Rights cannot be protected unless unjust attacks are prevented. Every society, whether primitive or advanced, has needed a security organisation to protect individual or collective interests and judicial authorities to establish these rights, and has created these institutions. The security organisation acts before unjust attacks take place and aims to prevent and avert them. The judicial authorities, by contrast, act after a right has been violated and endeavour, through adjudication, to restore the public order that has been disturbed as a result of the violation.

It is not possible, however, to protect rights in this way at every moment. As can be seen, there is a gap between the activities of law enforcement and those of the judiciary: what is to be done at the moment of the unjust attack? It is precisely this gap that self-defence fills; the legal order grants the individual the right to act in defence of himself and of a third party and regulates the conditions for doing so. The basis of self-defence lies in the idea that “law can never yield to lawlessness, nor right to wrong”³.

B. The Statutory Basis, Conditions and Legal Nature of Self-Defence

Self-defence is a universal concept of criminal law whose existence has been recognised by almost every legal order throughout history⁴. Self-defence has been provided for both in constitutions and in statutes. An examination of our Constitution shows that Art. 17 regulates self-defence. The provision expressly recognises self-defence in respect of acts of killing. However, because it associates self-defence only with acts of killing, the provision is liable to give rise to a mistaken interpretation and has been criticised in this respect⁵. For under the Turkish Criminal Code No. 5237, self-defence encompasses all personal rights and, within this scope, aims to afford protection against attacks on life, physical integrity, sexual inviolability, honour, dignity and property.

In the Turkish Criminal Code (TCK), self-defence is regulated as follows:

“Self-defence and necessity - Article 25

(1) No punishment shall be imposed on the perpetrator for acts committed out of the necessity of repelling, in a manner proportionate to the attack according to the circumstances and conditions prevailing at that moment, an unjust attack that is directed against a right belonging to himself or to another and that is taking place or is certain to take place or to be repeated.”

As can be seen, self-defence has been regulated as an institution shaped around the axis of attack and defence. In this context the legislature has expressly provided that individuals may act in defence against attacks on rights belonging to themselves or to another. The conditions of this attack and of this defence are likewise set out in the said article.

The conditions relating to the attack are:

(i) There must be an attack,

(ii) This attack must be unjust,

(iii) The attack must be present; it must be an attack that is under way or is certain to take place or to be repeated,

(iv) The attack must be directed against a right belonging to the person acting in defence or to a third party.

The conditions relating to the defence, for their part, are:

(i) The defence must be carried out with the aim of repelling the attack and against the person carrying out the attack,

(ii) The defence must be necessary and there must be a necessity to repel the attack at that moment,

(iii) There must be proportionality between the unjust attack and the defence.

Having set out the conditions relating to the attack and to the defence, the nature of self-defence in our law must also be explained. In Turkish criminal law, self-defence is recognised as a ground of justification. When Art. 223 of the Code of Criminal Procedure No. 5271 (CMK), entitled “Conclusion of the hearing and judgment”, and the provisions of the TCK entitled “Circumstances excluding or reducing criminal responsibility” (Arts. 24- 34) are examined together, it is seen that self-defence is regulated as a case of justification requiring a judgment of acquittal.

III. Self-Defence on Behalf of a Third Party

As seen above, Art. 25 of the TCK, by saying “to himself or to another”, draws no distinction between a person's acting in self-defence for himself and for a third party, and treats both as valid. In this respect it is possible, under the same conditions, to act in defence against an unjust attack carried out against a third party; the act is lawful and is protected by the legal order⁶.

We agree with the provision being framed in this way and consider that the recognition of self-defence necessarily entails the recognition of self-defence on behalf of a third party as well. For in our view too, just as in the case where self-defence is exercised by the very person exposed to the attack, self-defence on behalf (for the benefit) of a third party also serves the purpose of preventing wrong and amounts to a defence of the legal order. This should not, however, be understood as a general power to combat everything in the name of protecting society⁷.

With the recognition of self-defence on behalf of a third party, both the third party and the legal order are defended. The possibilities of defence available to the person attacked are widened, and deterrence is achieved in that attacks are prevented not only by the person attacked and by the law enforcement forces but also by third parties⁸.

An examination of the German Criminal Code shows that the defence of third parties is permitted in certain special situations. Accordingly, defence is possible where there is a close family relationship between the person acting in defence and the person exposed to the attack⁹. We, however, consider that no such distinction should be drawn among the persons who may act in self-defence. For, bearing in mind that self-defence on behalf of a third party rests on a sense of social solidarity, we consider that such a distinction cannot be drawn among the members of society in general and that, in particular, it would not accord with the reality of Turkish society, which is far from individualised and is outward-looking.

Certain special situations may arise in self-defence on behalf of a third party, and these may remove the legitimacy of the defence. Finally, these situations need to be touched upon briefly.

Where the person attacked consents to the attack or, for various reasons, does not consent to defence being exercised on his behalf, self-defence cannot be exercised on behalf of that person¹⁰. It must be noted here that the third party must have an absolute power of disposal over the right in respect of which he consents to the attack. Where a right over which the person cannot dispose, such as the right to life, is at stake, the consent given by the person has no validity whatsoever, and self-defence may be exercised on behalf of that person. For example, where a patient who cannot recover from a fatal illness and whose death is regarded as certain is, with his consent, to be killed by injection by his doctor so that he does not suffer, self-defence may be exercised against that act, for instance by the patient's spouse, and the practice of euthanasia may thus be prevented. Indeed, euthanasia is not accepted in our law. It is likewise possible to exercise self-defence on behalf of a person who is in the act of committing suicide by using violence against that person¹¹.

IV. Exceeding the Limits of Self-Defence

The limit in self-defence may have been exceeded because the defence was not proportionate to the attack. In that case there is a disparity in terms of the means and of the intensity of the defence. For example, the judgment of the General Criminal Assembly of the Court of Cassation dated 03.12.1984 and numbered 93/402 states: “The fact that the accused, who was subjected to the victim's attack with an axe and saw that the victim had come to within two metres of him, fired four shots aiming at the chest area although, possessing the more effective and superior force, he had the possibility of firing at the victim's foot and at the non-lethal parts of his body, clearly shows that he exceeded the limit of lawful defence.”¹² This is the reason for which the limit in self-defence is most often exceeded.

In addition, the limit may have been exceeded in terms of time. In that case, an attempt is made to act in defence after the attack has ended. Yet, as explained under the heading on the conditions, defence is possible only where the attack is present. An act committed in this situation may fall within the scope of another subject, namely unjust provocation (Art. 29).

Finally, it is disputed whether deviation in self-defence, that is to say the defensive act affecting uninvolved third parties, constitutes an exceeding of the limit¹³. In general, these are the situations in which the limit is exceeded; three possibilities as to the manner in which the limit may have been exceeded, and three legal consequences, will be explained below.

A. Intentional Exceeding of the Limits of Self-Defence

The first possibility is that the limit is exceeded intentionally. In that case no ground of justification will be applied to the perpetrator, nor will there be any reduction of the penalty. For instance, where this limit is intentionally exceeded and the result of death is thereby caused, the perpetrator will be held liable under the provisions on intentional killing (TCK Arts. 81 – 82).

B. Negligent Exceeding of the Limits of Self-Defence

The second is that the limit is exceeded negligently (TCK Art. 27(1)). Here the perpetrator exceeds the limit by acting in breach of the duty of care and attention with regard to the conditions of self-defence. If it can be said that the perpetrator would not have exceeded the limit had he exercised the necessary care and attention, the limit must be held to have been exceeded negligently.

Although its consequences are clear, it must be noted that the legal nature of the negligent exceeding of the limit is disputed. The TCK contains no provision clarifying the matter. We regard the institution of the negligent exceeding of the limit as a provision that is similar to mistake as to the conditions of grounds of justification (Art. 30(3)), yet different from it and more specific. For here, unlike in the case of mistake, the person does not fall into a mistake as to whether grounds of justification exist, but engages in erroneous conduct, stemming from negligence, in relation to a condition that does exist¹⁴. In this respect it was appropriate for the TCK to provide for the negligent exceeding of the limit separately from mistake as to the conditions of grounds of justification. For although these two institutions resemble each other, they have different features.

This must be distinguished from the state of excitement, fear or panic that we shall explain below. Here the perpetrator has no difficulty in directing his conduct but lacks the requisite knowledge of the circumstances of the incident. This deficiency stems from his failure to exercise the requisite care and attention (breach of the objective duty of care). Although by his act the person acts with the aim of protecting the legal order and of exercising self-defence, he steps outside the bounds of the legal order because of this lack of care and attention.

To illustrate with an example: where, in the darkness of night, the pocket knife in the attacker's hand is perceived as a firearm and the defence is therefore conducted against the attacker as though he had a gun, the person acting in self-defence opening fire with his own gun at the attacker's vital areas, one speaks of the negligent exceeding of the limit. In cases where the limit is exceeded negligently, if the act in question is also punishable when committed negligently, the penalty is imposed after reducing the penalty prescribed by law for the negligent offence by one sixth to one third. In this case, for example, the perpetrator acting in self-defence will receive the penalty for the offence of negligent killing (TCK Art. 85), but the penalty to be determined will be subject to a reduction of between 1/6 and 1/3.

C. Exceeding the Limits of Self-Defence on Account of Excusable Excitement,

Fear or Panic

In the third possibility, the limit may have been exceeded on account of excusable excitement, fear or panic (TCK Art. 27(2)). With this provision the legislature aims to protect the individual who, while trying to repel an attack directed against himself or another, is “stunned” in the face of the attack and is not in a position to control his conduct. Where the limit is exceeded on account of excusable excitement, fear and panic, the perpetrator will not be found culpable and no punishment will be imposed on him.

The notion that no punishment is imposed means that a decision that there is no need to impose a penalty must be given. This differs from a judgment of acquittal. In cases where no punishment is imposed because the perpetrator is not found culpable, the act retains its unlawful character. For there is no ground rendering it lawful; one can speak only of a circumstance excluding culpability. Since the act is still unlawful, self-defence may also be exercised against a perpetrator who is acting in self-defence but exceeds the limit for an excusable reason. In this case too, the perpetrator is given not an acquittal but a decision that there is no need to impose a penalty. For the perpetrator's conduct still retains its character as unlawful and as an offence; but because his act is regarded as excusable in the eyes of society (which is why it is accepted as a ground of excuse), it does not reach the stage of deserving punishment.

V. Conclusion

Law aims to overcome wrong and involves fighting injustice. No legal order can regard as unlawful the act of a person who sets out to protect the law. It is for this very reason that the legitimacy of defence arises from the law's own conception of its task¹⁵.

Self-defence is a universal concept of criminal law recognised by all legal orders. No one is obliged to submit to, to remain silent before or to refrain from resisting an unjust attack directed against himself or another. Provided that it is proportionate to the attack and necessary, we all have the right to act in defence of ourselves and of each one of us. Self-defence aims to protect, in respect of attacks directed against the person himself, a natural and necessary reaction and, in respect of attacks directed against third parties, the sense of social solidarity and unity.

The conduct of a person who repels an unjust attack by using proportionate force can neither be morally reproached nor legally punished. That person has fought for the law and served the protection of society¹⁶. Accordingly, to mount a necessary and proportionate defence against an unjust attack directed against oneself or another is lawful. No punishment may be imposed on the perpetrator. Indeed, it is apparent that in some cases to hold otherwise and to punish the perpetrator may harm not only the law but also social solidarity.