Publication: Magyar Közlöny
Issue: MK-2007-147 (Year: 2007, Number: 147)
Era: 2004-2010
Section: 
Paragraph Index: 88

3. Are the means proportional to the goal to be achieved? _____________________________________________________________________________ FRANCE France does not foresee any restrictions with respect to carrying service weapons, means of force and other equipment provided they have been handed out by the police administration of the Prüm partners. While enforcing article 25, the use of weapons and firearms shall be restricted to self defense situations and only handguns (revolvers and pistol guns) tear gas and truncheons, as long as they have been handed out by the police administration, will be allowed. 2007/147/II. szám Legal and practical conditions of the use of arms, ammunition and equipment Specific conditions under which self defense is admitted. Requirements for self defense in French criminal law are stated in the articles 122-5 and 122-6 of the penal code. While the first one explains the general conditions of self defense, the second describes two particular situations which reacting to will be considered as necessitated by self defense. Firstly, self defense is a reaction to protect a victim from an assault and article 122-5 specifies the details of its two components that are the attack and the counterattack. The attack has first to be perpetrated against a person, policeman or not. It has then to be unjustified which obviously is not the case when rebelling against enforcement of the law by the police. It has last to be real and current which on the one hand, means that using weapons or firearms to react to a threat cannot be justified by the needs of self defense and on the other hand, means that using weapons and firearm after the attack is finished would be considered as retaliation instead of self defense. For the same reason that just explained the counterattack must be immediate while the assault as not to be considered as retaliation. It has then to be necessary which means only it could stop the attack. Finally it has to be commensurate with the attack. Secondly, self defense is a reaction in order to interrupt a crime or an offense against possessions while it is being perpetrated. In such a situation article 122-5 states that self defense act has to be strictly necessary and commensurate with the infringement seriousness as long as it is not a murder. Article 122-5 states that there is no penal liability for a person acting for self defense needs. The concerns of article 122-6 are about two particular situations in which the use of weapon or firearm by a policeman would be presumed as necessitated by self defense. The first one is related to a case where policeman act to repel out of a lived in property the perpetrator(s) of a burglary committed by means of a trick or violence. The second one is related to a situation where policeman act to defend himself against the perpetrators of a rubbery or of a looting committed with violence. The presumption stated in article 122-6 is not irrefragable and does not exempt the person acting for self defense from having respect for particularities specified in article 122-5 such as reacting to a serious, real and current danger. Particular situation stated in article 73 of criminal procedure code. This article states that any citizen who sees a crime or an offense while it is being committed can arrest its perpetrator in order to present him to the local police officer. So for a foreign police officer crossing the French boarder as to enforce article 25 of the Prüm treaty can arrest an offender or a criminal provided that the arrest is done while the infringement is being committed. _____________________________________________________________________________ 2007/147/II. szám GERMANY Arms, ammunition and equipment prohibited from being carried during cross border operations (art 28) For all kinds of operations: no prohibitions Legal and practical conditions of the use of authorized arms, ammunition and equipment: For Germany are relevant the “Gesetz über den unmittelbaren Zwang bei Ausübung öffentlicher Gewalt durch Vollzugsbeamte des Bundes (BGBl. I 1961, 165; zuletzt geändert durch Art. 28 V vom 31.10.2006) and the equivalent laws of the federal Länder. _____________________________________________________________________________ LUXEMBOURG Particular arms, ammunition and equipment which are prohibited to be carried: For the joint operations and the cross-border operations provided for by the articles 24 and 25 of the Treaty, there are in principle no prohibitions; the police officers of the other Parties are allowed to carry the arms, ammunition and equipment which are part of their individual or collective regular equipment. For the joint operations provided for by article 24 of the Treaty, the mission statement foreseen in point 14.1 of the Implementing Agreement may specify some equipment which may not be carried for a determined operation. Particular arms, ammunition and equipment which are prohibited to be used: Luxembourg permits the use of the arms, ammunition and equipment listed in Annex 2 of the Treaty. The Seconding State’s officers operating on Luxembourg territory should take into account the following principles: Legal and practical conditions of the use of authorised arms, ammunition and equipment:

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