The law does not recognize the law of retaliation. A victim who defends herself will be liable to criminal prosecution if she injures or kills her attacker.
The principle is that all citizens are required to rely on the police to control the aggressor and the courts to punish him.
But in case of emergency or inability to reach help, it will be possible under certain conditions to ensure one's own defense without being prosecuted in criminal proceedings: It is self-defense.
Legal criteria for self-defense
According to article 122-5 of the penal code “The person who, in the face of an unjustified attack against himself or others, performs, is not criminally punishable. at the same time, an act commissioned by the need self-defense of oneself or of others, unless there is disproportion between the means of defense employed and the seriousness of the breach.
It is up to the judge to assess self-defense according to legal criteria (Cass. Crim. Of September 9, 2015, n ° 14.81-308)
To be legitimate, the act of defense must be necessary.
The victim has no choice: She cannot flee (if she is being held by her attacker or locked up), nor can she call for help.
The means of defense must be proportionate to the seriousness of the attack suffered. In the absence of a definition, it is through its opposite "the disproportionate act" that we can identify this criterion.
Case law gives us some examples of disproportionate acts that do not allow legitimate defense to be retained:
You cannot respond to a slap by hitting the abuser with a baseball bat. In such a case, whoever was originally the aggressor would become the victim; Nor hit a person with a blow from a bottle who would grab you by the neck when you know them very well (Devaud judgment, Cass. Crim. Of November 21, 1961); Or mutilate a person (optic nerve) who holds you back by clothes with a stiletto heel (Cass. Crim. Of December 6, 1995, n ° 95-80.075); Nor kill the author of a nighttime uproar with a gun (Cass. Crim. Of February 21, 1996, n ° 94-85.108); Nor to kill a man already under control and lying on the ground with a gun (Cass. Crim. Of June 5, 1984, n ° 83-94.092). Nor for a father, hidden in the garden, to kill his daughter's lover, who was climbing the window, with a gunshot (Cass. Crim. Of October 12, 1993, n ° 93-83.504).
The person can defend himself against an unjustified attack, to interrupt a felony or misdemeanor. The response must intervene at the time of the aggression on the model: Action / Reaction.
Leaving and then returning, even 10 minutes later, to the scene of the assault with friends or a baseball bat to settle scores is not self-defense: it is revenge.
These 3 criteria are cumulative. If one is missing, self-defense will not be accepted.
Namely: The response must be voluntary. If you accidentally kill or injure your attacker, by pushing him down the stairs or by brandishing a weapon whose shot goes off by itself) it will not be self-defense (Cass. Crim. Of February 16, 1967, n ° 66- 92.071 known as the Cousinet judgment).
Self-defense is the right to defend oneself, or others, even by the use of violence, against any unjustified attack, it is also the right to defend his property. There are therefore two kinds of legitimate defense that should be distinguished.
Self-defense to people
According to article L.122-5 of the penal code "is not criminally responsible the person who, in front of an unjustified attack against himself or others, performs, at the same time, an act ordered by the necessity of the legitimate defense of herself or of others ».
The certainty of aggression
A person will be allowed to defend himself in the face of imminent and certain peril. It must be threatened or in danger.
An imaginary risk (often created by fear) will not come under self-defense and will be difficult to justify before the judges who, let us remember, will have to assess the situation “cold” and therefore long after the fact.
Unjustified harm against oneself or others
Self-defense makes it possible to defend oneself but also to defend a third party who would suffer an unjustified attack ranging from homicide to physical violence, even slight, or threats.
It does not matter whether this third party is a known person (family, friend, etc.) or unknown as someone unjustly attacked in the street. But to be retained, this reaction must meet the 3 criteria of necessity, proportionality and simultaneity which characterize self-defense.
Self-defense of property
Self-defense of property concerns cases where a person will place traps (explosives, shards of bottles cemented at the top of low walls, etc.) on his property or in his house to prevent a home invasion or burglary.
Can we assert self-defense if a burglar dies or is mutilated by the means of prevention used?
Interruption of a crime or an offense against property
Article 122-5 paragraph 2 of the penal code provides that "is not criminally liable the person who, for interrupt the execution of a crime or an offense against property, performs an act of defense, other than intentional homicide when this act is strictly necessary for the aim pursued since the means employed are proportionate to the gravity of the offense ”.
Self-defense will only be retained if the means used tend to prevent a crime or an offense against property. In the absence of a crime or misdemeanor, self-defense will not be retained.
It is the hypothesis of an unoccupied country house in which traps are placed against potential thieves and that a person lost in the forest enters the house to take shelter, to look for food. If it is injured or killed by an armed device, the owner will not be able to assert self-defense. Taking shelter out of necessity is neither a crime nor an offense.
The legal presumption of self-defense
The difficulty remains that it is impossible to know the intentions of a person entering a property and that it is necessary to take into account the fear which would incite to defend oneself by survival reflex.
Therefore, the legislator has provided for a legal presumption, that is to say the recognition of self-defense whenever it is a question of "pushing back at night entry by break-in, violence or ruse into an inhabited place. ; to defend themselves against the perpetrators of theft, looting, or violence… ”(article 122-6 of the penal code).
With this presumption, it will be easier to prove that one has acted in self-defense whenever the intrusion has taken place in a home at night or if one finds people breaking into or destroying, its property.
However, it should be noted that self-defense of property will be very strictly appreciated and, in fact, rarely applied by judges. It's all about proportionality. The use of firearms equipped with an automatic triggering device, as well as all traps (explosives, anti-personnel mines, etc.) the use of which would prove fatal, is prohibited.
The protection of a good can never justify the attack on human life.
Namely: The recognition of self-defense does not allow the award of damages to the victim (who, originally, was the aggressor), because it eliminates all civil liability
Self-defense will be retained even if the attack comes from a person declared irresponsible and this, whether it is children or mentally ill (Cass. Crim. January 11, 1896).
Self-defense will not operate against a person exercising an act of authority such as the police or bailiffs (Bernard Cass. Crim. Judgment of January 5, 1821 and Crim. Cass. Of February 9, 1972, n ° 71 -91.349). And this, even if they act illegally, an individual is turned back several times by two controllers at the entrance to the metro and therefore in a space where there was no obligation to show his transport ticket, for lack of a ticket! The individual returns armed with a knife (Cass. Crim. Of Jan. 28, 1998, n ° 96-86.535).
Conversely, the police (police and gendarmerie) can assert self-defense and even use their weapons if the criteria of necessity, simultaneity and proportionality are met.
Self-defense was accepted for a police officer who killed an individual who to oppose his arrest threatened him with a knife (Cass. Crim. Of May 2, 2012, n ° 11-83.845). But it was refused to a gendarme who shot at a fugitive criminal (Cass. Crim. Of April 30, 1996, n ° 95-82.500).
A gendarme will only be authorized to use his weapon if he is in military uniform (articles 16 and 174 of the gendarmerie decree of May 20, 1903).