Legitimate Defence in France: Articles 122-5 and 122-6 Explained

Legitimate defence, la légitime défense, is one of the most misunderstood concepts in French criminal law. It is not a permission granted in advance, and it is not a category of person or situation. It is a finding a court makes afterwards, once the facts are established, that a defendant who did commit an act is not criminally responsible for it.

This page describes the test the Code pénal sets and how French courts have read it. It is a doctrinal explanation of a legal standard, not advice about how to behave in a confrontation, and nothing here should be read as encouragement to use force. Anyone facing an actual investigation needs a lawyer, not a web page.

Information last verified on 21 July 2026. This page presents general legal information, not legal advice.

What the Code pénal actually says

Article 122-5 is short, and its wording carries the whole test. Its first paragraph provides that a person is not criminally responsible who, faced with an unjustified attack on themselves or another, performs, at the same time, an act commanded by the necessity of the legitimate defence of themselves or another, unless there is a disproportion between the means of defence used and the seriousness of the attack.

Its second paragraph deals with property, and is deliberately narrower. A person is not criminally responsible who, in order to interrupt the commission of a crime or delit against property, performs an act of defence other than an intentional killing, where that act is strictly necessary to the aim pursued and provided that the means used are proportionate to the seriousness of the offence.

The wording has not changed since 1 March 1994, when the current Code pénal came into force. The stability is worth noting, because the developments in this area come from case law applying that text, not from legislative reform.

Legitimate defence is placed in the chapter of the Code pénal dealing with causes of irresponsibility. The consequence is procedural as much as substantive: the act is not treated as lawful conduct authorised in advance, it is conduct for which criminal responsibility is excluded once the conditions are found to be met.

The attack must be unjustified

The starting point is an atteinte injustifiee, an unjustified attack, on a person. An act performed by a public authority acting within its powers is not unjustified, which is why resisting a lawful arrest does not engage the defence.

The attack must also be real. A response to something the person merely believed was happening is assessed on what a court finds the situation objectively to have been, and a mistaken belief does not automatically bring article 122-5 into play.

Simultaneity: what is in the text and what comes from the courts

French doctrine describes this condition as concomitance, and it is often said to be a purely case law construction. That overstates it, and the point is worth stating precisely: the requirement appears in the statute itself, because article 122-5 requires the defensive act to be performed "dans le meme temps", at the same time as the attack.

What the courts have added is everything that follows from those four words. Case law is what establishes that a response delivered once the attack is over is revenge rather than defence, that an anticipatory act performed before any attack is not covered, and that the analysis is conducted on the moment rather than on the wider history between the parties.

The practical consequence is that timing does most of the work in contested cases. Two identical acts, one during an assault and one a few minutes after the assailant has disengaged, fall on opposite sides of the line.

Necessity and proportionality

Necessity asks whether the act was commanded by the situation, and it is a demanding standard rather than a formality. The question is whether the response was required to meet the attack, not whether it was an understandable reaction to it.

Proportionality is framed negatively in the first paragraph. The defence is excluded where there is a disproportion between the means of defence employed and the seriousness of the attack, which leaves room for a response that is not perfectly calibrated while excluding one that is out of all proportion.

For property, the second paragraph tightens both conditions. The act must be strictly necessary to interrupting the offence, the means must be proportionate to its seriousness, and an intentional killing is excluded outright regardless of what was being protected.

That exclusion is the clearest statement in the text of a hierarchy French law applies throughout this area. Property is protected, but not on the same terms as physical integrity.

The article 122-6 presumption

Article 122-6 provides that a person is presumed to have acted in a state of legitimate defence who performs the act, first, to repel by night the entry by breaking in, violence or trickery into an inhabited place, and second, to defend against the perpetrators of thefts or pillage carried out with violence.

Both limbs are tightly drawn. The first requires all of the elements together: night, a lieu habite, and an entry effected by effraction, violence or ruse. A daytime intrusion, or an entry through an unlocked door with nobody inside, does not engage it.

The second limb concerns violent theft or pillage, not theft as such. An ordinary theft without violence falls to be analysed under article 122-5, with the strict conditions the second paragraph imposes on defence of property.

The presumption is rebuttable, and that is the crucial point

Article 122-6 is widely read as a rule that a householder confronted with a night intrusion is automatically covered. That is not how the Cour de cassation applies it.

The chambre criminelle held on 12 February 1997 that article 122-6 lays down "une presomption simple de légitime défense qui, loin de presenter un caractere absolu et irrefragable, est susceptible de ceder devant la preuve contraire". A presomption simple shifts the starting point of the analysis; it does not end it.

In practice that means the presumption can be displaced where the evidence shows that the acts of violence were committed without any current necessity, for instance where the intruder was fleeing or had already been neutralised. The chamber returned to the operation of the article in a decision of 28 November 2012.

So the presumption changes who has to prove what, and it does so in a genuinely useful way for the person invoking it. It does not convert either of the two listed situations into a zone in which the ordinary requirements of necessity and simultaneity stop applying.

Who decides, and when

Nobody decides in the moment. Where a person is injured or killed, there will be an investigation, and the question whether legitimate defence applies is examined by investigators, by the prosecutor, and in serious cases by a juge d'instruction, before any court reaches it.

That sequence explains why the defence feels precarious to the people who invoke it. A person may be placed in garde à vue, questioned, and even prosecuted, and still ultimately be found not criminally responsible, because the finding comes at the end of the process and not at its start.

The evidence a court works from is the evidence that survives: medical findings, forensic material, the sequence of injuries, camera footage, and the accounts of witnesses and of the parties. Reconstructing the timing of a fast confrontation from that material is exactly what the analysis of concomitance turns on.

A person who is harmed in such an incident, or accused after one, engages the ordinary machinery of French criminal procedure. Reporting the facts is done by filing a plainte, and a record made without a complaint has the limited effect described on our page on the main courante. Our France legal guide covers the surrounding procedure.

Common misreadings

The first is that legitimate defence covers whatever a frightened person does. It does not: the text sets objective conditions, and the assessment is made on the facts as established rather than on how the situation felt.

The second is that a home confers a general licence. Article 122-6 is limited to two defined situations, and the presumption it creates is rebuttable.

The third is that property may be defended by any means. The second paragraph of article 122-5 excludes intentional killing in the defence of property in terms, and requires strict necessity in addition to proportionality.

The fourth is that a device or arrangement set up in advance to injure an intruder will be covered. Anything installed beforehand sits badly with a text that requires an act performed at the same time as an attack, and it engages separate offences of its own.

The point to take away

Legitimate defence in French law is a standard a court applies afterwards to conduct that has already occurred, not a right that can be exercised in advance. What it requires is an unjustified attack, a response at the same moment, necessity, and the absence of disproportion, with a stricter test still where property alone is at stake.

Article 122-6 helps in two narrowly defined situations by shifting the starting point of that analysis, and the Cour de cassation has been explicit that it does no more than that. Anyone in an actual case should take advice from a lawyer qualified in France, because the outcome will turn on the evidence in that file rather than on the general rule.