Criminal LawWhat is legitimate defence and what are its conditions?

Legal systems recognise the right of individuals to protect themselves or others from an unjustified attack. This right is called “legitimate defence” or “self-defence” and is regulated in Article 25 of the Turkish Penal Code (TPC) as a reason of lawfulness. Legitimate defence means that an act that normally constitutes a crime is considered lawful if it is committed under certain conditions and the person who commits this act is not punished. However, the boundaries and conditions of legitimate defence are quite sensitive and a correct understanding of these conditions is vital to prevent loss of rights. In this article, we will discuss in detail what legitimate defence is, under which conditions it can be applied, its limits and common misconceptions on this subject.

Definition and Legal Nature of Self-Defence: Legitimate defence is defined in Article 25 of the TPC as follows:

According to this definition, legitimate defence is an act committed by a person with the obligation to defend an unjustified attack against himself or another person’s right in a manner proportionate to the attack according to the situation and conditions at the time. Self-defence is a “reason for compliance with the law”. In other words, even if the act committed is a crime in form, the perpetrator is not punished because it is considered lawful. This is not because the perpetrator is not at fault, but because his/her act is in accordance with the law.

Conditions of Self-Defence: In order to speak of the existence of legitimate defence, certain conditions regarding both the attack and the defence must be met together. These conditions have been interpreted in detail by the case law of the Court of Cassation and the doctrine.

A. Conditions Regarding the Attack:

1. It must be an unjust attack: The attack must be unlawful. In other words, the act of the aggressor must be directed against a right worthy of legal protection and must be unlawful. For example, an intervention made by a police officer within the scope of his legal authority is not considered an unjustified attack.

2. The attack must be directed against a right: The attack must be directed against a right belonging to oneself or another person (such as the right to life, bodily integrity, sexual inviolability, property, residential inviolability, honour and dignity). Attacks not only on material assets but also on moral values may fall within the scope of self-defence.

3. The attack must be a realised attack or an attack that is certain to be realised or repeated:

   • Actualised Attack: The attack must be ongoing at that moment.
   • Attack that is certain to occur: It must be certain that the attack will start immediately. It is also possible to defend against an attack that has not yet started, but is imminent.
   • Repeated Attack: It is possible to defend against an attack that seems to be over but could start again at any time.
   • No defence against an attack that has ended: If the attack has ended completely, there can no longer be any legitimate defence. In this case, the act committed has the nature of revenge and constitutes an offence.

B. Conditions for Defence:

1. Defence must be compulsory: Defence must be carried out in cases where there is no other means of repelling the attack. In other words, defence when there is an opportunity to escape from the attack or to get rid of it in another way may eliminate the requirement of legitimate defence. However, the person has no obligation to flee; he/she has the right to defend himself/herself in order to protect his/her honour.

2. There must be a proportion between the act of defence and the attack: This condition is the most critical and most debated aspect of self-defence. There must be a “proportion” between the act of defence and the attack. Proportion does not mean absolute equality; it is evaluated by taking into account all concrete conditions such as the severity of the attack, the means used, the physical characteristics of the attacker and the defender, the place and time of the incident. For example, the use of a firearm against an attack with a fist is generally considered disproportionate. However, in cases such as the physical superiority of the attacker or the presence of more than one person, the use of a heavier means of defence may be considered proportionate.

Exceeding the Limit (Exceeding the Limit in Self-Defence – Art. 27 TPC): “Exceeding the limit” occurs when the means or method used in defence is disproportionate to the attack, although the conditions for legitimate defence are met.

• Exceeding the limit without intent (Negligent Exceeding): If the limit is exceeded due to excusable excitement such as fear, panic, confusion, the perpetrator is not punished (Article 27/2 of the TPC). This situation is called “exceeding the limit in reasons of lawfulness” and is accepted as a reason that removes culpability.
• Deliberately exceeding the limit: If the limit is deliberately and knowingly exceeded, the perpetrator is not subject to the provisions on legitimate defence and is punished for the crime committed. However, the court may reduce the penalty by considering all the circumstances of the case.

Application Areas of Self-Defence:

• Attack on Self: Defence against attacks on one’s own life, body integrity, sexual inviolability and property.
• Attack on Others: Defence against an unjustified attack on the rights of another person (a relative, friend or even a stranger).
• Dwelling Immunity: The defence against attacks on the home is generally considered to be a broader area of legitimate defence. Attempts to enter the dwelling, especially at night, may lead to a more flexible interpretation of the limits of self-defence.

Situations that may be confused with self-defence:

• Retaliation: Acts committed after the attack has ended are not legitimate defence, but revenge and constitute a crime.
• Provocation: Unjust provocation (Article 29 of the TPC) is different from legitimate defence. Provocation is the committing of a crime under the influence of anger or severe anguish in the face of an unjust act that causes the commission of a crime and is accepted as a reason for reduction in punishment. Self-defence, on the other hand, is a reason for compliance with the law.
• State of Necessity (State of Necessity – TPC Art. 25/2): It is the act of eliminating the danger to the detriment of another person if there is no other way to get rid of a serious and certain danger to oneself or to a right belonging to another person. The difference from self-defence is that the danger does not arise from an unjustified attack.

Supreme Court of Cassation Jurisprudence and Self-Defence: The Court of Cassation has developed many jurisprudence on legitimate defence. These jurisprudences reveal how the proportionality requirement and the exceeding of the limit should be evaluated according to concrete events. The Court of Cassation takes into account all factors such as the sudden development of the incident, the psychological state of the attacker and the defender, and the nature of the means used.

Self-defence is a fundamental ground of lawfulness that guarantees the right of individuals to protect themselves and others from unjust attacks. However, in order to exercise this right, it is of great importance that the conditions specified in the law are meticulously examined and especially that there is a proportion between the attack and the defence. In the event that the limit is exceeded, whether the exceeding is done intentionally or with excusable excitement such as fear or panic is decisive in terms of its legal consequences. Persons who are confronted with a claim of legitimate defence or who commit an act in this situation should definitely seek legal support from an expert criminal lawyer in order to correctly evaluate all the details and legal consequences of the incident. This is of vital importance to prevent loss of rights and to ensure a fair trial.