What is self-defense?

 

Self-defenseis defined as an individual's defense against an unjust attack directed at themselves or another person, with the aim of stopping the attack. 25 of the Turkish Penal Code (TCK) , this institution is one of the grounds for legality. In other words, actions taken in self-defense do not constitute a crime. Self-defense is a "natural right of defense" recognized by law to protect the life and property of individuals.

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1. The Legal Basis of Self-Defense

According to Article 25/1 of the Turkish Penal Code:
"No punishment shall be imposed on the perpetrator for acts committed out of necessity to repel an ongoing unlawful attack directed against a right belonging to oneself or another."

This regulation grants the person under attack the right to use force to the extent necessary to repel the attack. The key criteria here is that the attack must be unlawful, sudden, and ongoing.

2. Elements of Self-Defense

a) Unlawful Attack

Self-defense requires an unlawful attack.

• This attack can be not only physical violence, but any act directed against a person's bodily integrity or property.

• For example, incidents such as someone drawing a weapon and attempting to fire, or a burglar breaking into a house, are considered unlawful assaults.

b) Ongoing Attack

The attack must be ongoing. Actions taken for revenge for a past attack do not constitute self-defense.
Example: Responding to an attacker after the attack has ended is considered "intentional injury" or "intentional killing," not "self-defense."

c) The Necessity of Defence

Self-defense, when undertaken legitimately, must be necessary to stop the attack.

• The need for self-defense may disappear if there is an opportunity to escape or receive assistance from law enforcement.

• However, if a person does not have a reasonable opportunity to prevent the attack, then the right to self-defense arises.

d) Proportionality

There must be proportionality between defense and attack.

• An excessive response to a minor attack constitutes exceeding the limits of legitimate self-defense.

• For example, using a lethal weapon against a simple shove is considered disproportionate.

3. Exceeding the Limits of Self-Defense

Article 27/2 of the Turkish Penal Code states that a reduction in punishment may be applied to the perpetrator if the limits of legitimate self-defense are exceeded.

• Especially in sudden events, if a disproportionate defense is made due to fear and excitement, this can be a reason for "reducing criminal responsibility".

• The Court of Appeals assesses whether the line has been crossed by considering the development of the event and the psychological state of the perpetrator.

4. Self-Defense in Light of Supreme Court Decisions

The 1st Criminal Chamber of the Court of Cassation, Case No. 2019/4856, Decision No. 2020/2134, stated:
“The defendant’s defense with a knife against a burglar who forcibly entered his home was necessary to ward off the attack and should be considered within the scope of self-defense.”

The Supreme Court Criminal General Assembly, Case No. 2017/371, Decision No. 2018/295, stated:
“Using a lethal weapon in response to a simple punch constitutes exceeding the limits of self-defense. However, due to the sudden nature of the incident, Article 27/2 of the Turkish Penal Code should be applied in favor of the defendant.”

The 3rd Criminal Chamber of the Supreme Court of Appeals, Case No. 2016/1254, Decision No. 2017/874, stated:
“An action taken in response to a non-continuing attack cannot be considered within the scope of self-defense. The perpetrator's criminal liability continues.”

5. The Perspective of the European Court of Human Rights (ECtHR)

ECtHR) addresses the concept of self-defense particularly in the context of the use of force by state officials. Article 2 of the European Convention on Human Rights (ECHR), while regulating the right to life, recognizes self-defense as an exception.

• McCann and Others / United Kingdom (1995): It was emphasized that the use of lethal force by security forces must be “necessary and proportionate”.

• Nachova and Others / Bulgaria (2005): The use of disproportionate force has been considered an act exceeding the limits of self-defense.

• The European Court of Human Rights states that individuals' right to self-defense is not unlimited and that the principle of proportionality must be protected in all cases.

6. Self-Defense and Criminal Liability

In cases of self-defense, the perpetrator's action does not constitute a crime and no punishment is imposed. However:

• The perpetrator is held liable if the attack has ended or if the defense involved unnecessary violence.

• If the limits of legitimate self-defense are exceeded due to fear, panic, or excitement, a reduction in punishment is applied in accordance with Article 27/2 of the Turkish Penal Code.

7. Self-Defense and the Defense of Third Parties

Article 25/1 of the Turkish Penal Code covers not only the defense of one's own rights but also the defense made to ward off an unjust attack directed at another person.

• For example, a person who intervenes to protect someone being attacked is exercising their right to self-defense.

8. The Difference Between Self-Defense and Necessity

Legitimate self-defense refers to defending against an unjust attack, while necessity (Turkish Penal Code Article 25/2) is the situation where one harms another's rights in order to prevent a danger.

• For example, if an attacker draws a knife, that constitutes self-defense.

• Breaking down someone else's door while escaping a fire is considered a matter of necessity.

9. Problems Encountered in Practice

• Proportionality assessment: Whether the defense is balanced with the offense is always debatable.

• Whether the attack continued: The development of the event and witness statements often create uncertainty.

• Fear and panic factors: Determining the perpetrator's psychological state is a crucial element in court assessments.

10. Common Points in the Decisions of the ECHR and the Court of Cassation

• Proportionality and necessity are the fundamental criteria.

• The right to self-defense must be exercised to the extent necessary to repel an attack.

• The Supreme Court of Turkey and the European Court of Human Rights have stated that "reflexive self-defense in sudden attacks" can be accepted within the limits of legitimate self-defense.

11. Social and Legal Significance

Self-defense guarantees an individual's right to protect themselves and their loved ones. A good understanding of the legal limits of this right prevents individuals from assuming unnecessary legal responsibility and ensures that aggressors are punished. Furthermore, the concept of self-defense is an important element in maintaining social peace; because in a system where individuals' right to self-defense is not recognized, the sense of security weakens.

12. Conclusion and Recommendations

Self-defense is one of the most fundamental legal grounds allowing individuals to defend their rights. Both the Turkish Penal Code and international law define the limits of this right.

• Proportionate defenseis key to legal protection.

• Supreme Court rulings and ECHR case law provide important guidelines to prevent the abuse of this right and to avoid injustices.

Suggestions:

1. The conditions for self-defense should be explained to the public more clearly.

2. Law enforcement officials must carefully consider both the psychological and factual dimensions of the incident.

3. The criteria of proportionality and whether the attack was ongoing must be supported by concrete evidence.

Gozdenur Turna