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Exceeding the limits of necessary self-defense is the criminal-law knot where defence and prosecution read the very same facts in entirely different ways: for one side it is self-protection, for the other a continuation of an attack under conditions of a vanished threat. The Criminal Code of Georgia builds this sphere on two levels: the general institution of necessary defense, within which conduct is not considered unlawful, and murder committed in exceeding its limits — a separate mitigated composition. This page explains how these two levels work in practice and what it means that timeliness and proportionality are the two axes of the decision.
Necessary defense: when conduct is lawful
The first part of Article 28 of the code states the general rule: a person does not act unlawfully who, in a state of necessary defense — that is, during an unlawful infringement — harms the infringer in order to protect his own or another's legal good. The second part gives this right an unbounded character: a person has the right of necessary defense regardless of whether he could have avoided the infringement or called others for help. This means that defense does not require an "alternative" of flight or of summoning assistance — the right of defense is preserved even where avoidance was possible.
The third part adds a property dimension as well: harming the infringer in order to retrieve property or another legal good taken by unlawful infringement is lawful also where this occurred immediately upon the good passing into the infringer's hands and where its immediate return was still possible. The institution of defense thus covers the retrieval of possessions too — but only together with an instantaneous, timely reaction.
Exceeding the limits: obvious disproportion
The fourth part of Article 28 contains the decisive formula: exceeding the limits of necessary defense means the defender's obvious non-correspondence of the defense to the character and the danger of the attack upon him. Two evaluative axes stand out in this formula: the character of the attack — the nature and intensity of the threat — and its danger — what it portended for the unprotected good. The defense must correspond to these two parameters; where the disproportion is obvious, the conduct leaves the boundaries of the defense institution.
In practice this means the fate of the case often turns on the axis of time: when the threat ceased, whether a vanished threat could still be regarded as menacing, and at which moment the defender struck. A response delivered when the threat no longer existed is no longer defense — and it is precisely there that the norm of the next level appears.