Strafgesetzbuch

This article is about the criminal law code of Germany. For other uses, seeStrafgesetzbuch (Austria)andStrafgesetzbuch (Switzerland).

Strafgesetzbuch(German pronunciation:[ˈʃtʁaːfɡəˌzɛtsbuːx],literally "penal law book" ), abbreviated toStGB,is the Germanpenal code.

History

Strafgesetzbuch (1914)

In Germany theStrafgesetzbuchgoes back to the Penal Code of theGerman Empirepassed in the year 1871 on May 15 in Reichstag which was largely identical to the Penal Code of theNorth German Confederationfrom 1870. It came into effect on January 1, 1872.

ThisReichsstrafgesetzbuch(Imperial Penal Code) was changed many times in the following decades in response not only to changing moral concepts and constitutional provision granted by theGrundgesetz,but also to scientific and technical reforms. Examples of such newcrimesaremoney launderingorcomputersabotage.

The Penal Code is acodificationof criminal law and the pivotal legal text, while supplementary laws contain provisions affecting criminal law, such as definitions of new types of crime and law enforcement action. The StGB constitutes the legal basis of criminal law in Germany.

After the defeat ofNazi Germany,a number of prohibiting provisions were included in the Strafgesetzbuch:

• Friedensverrat( "treason to peace" ): preparation of a war of aggression (§ 80; since 2017 § 13Völkerstrafgesetzbuch) and incitement to a war of aggression (§ 80a)
• dissemination of means of propaganda of unconstitutional organizations (§ 86)
• use of symbols of unconstitutional organizations(§ 86a)
• incitement to hatred against segments of the population (Volksverhetzung) (§ 130)

In 2002 German public prosecutors were empowered to prosecutecrimes against humanity,war crimesandgenocideinternationally under theVölkerstrafgesetzbuch( "Code of Crimes against international Law" ). Another special penal code is theWehrstrafgesetzto prosecute special crimes within military service such asinsubordination(§20 WStG) anddesertion(§16 WStG).

Structure

The German Penal Code is divided into two main parts:

General Part(Allgemeiner Teil): in which general issues are arranged, for example:

• Area of the law's validity
• Law-related definitions
• Capacity to be adjudged guilty
• Perpetration and incitement or accessoryship
• Necessary defence
• General provisions forpunishments(finesandimprisonment)
• Statutes of limitations
• Attempts

Special Part(Besonderer Teil): in which the differentcriminal offencesand their definitions and punishments are listed, for example:

• Crimes against the democratic rule of law
• Crimes against public order
• Crimes against the person of a sexual nature
• Crimes against life
• Crimes against another person's wealth (for example robbery and theft)

Notable sections

These sections differ significantly from the criminal codes in other countries, and/or are relevant for topics discussed in other articles.

§ 86a: Use of symbols of unconstitutional organisations

Main article:Strafgesetzbuch § 86a

Outlaws the distribution or public use of symbols of unconstitutional groups, in particular, flags, insignia, uniforms, slogans and forms of greeting. The laws ban mostNaziinsignia from any usage for propagating the ideology outside artistic, scientific, research, or opposition uses (swastikas,SSsig runes,Totenkopf,Othala rune,the neo-Nazi version of theCeltic Cross,the swastikas versions of theIron CrossandReichsadler,Wolfsangel,the party and Reichkriegsflagge Nazi flags, theSturmabteilungemblem, theNazi saluteand the greetings "Heil Hitler" or "Sieg Heil", are outlawed under the law) it also extends to bans on symbols of theCommunist Party of Germany(Hammer and sickle,red starandred flagare under it),ISISBlack Standard,andKurdishPeople's Protection Units (YPG)pennant.

This section has been the basis for the confiscation ofvideo gameslikeWolfenstein 3DorMortyrand the censorship of Nazi symbolism inWorld War II-related media until August 2018.

§ 103: Insulting of organs and representatives of foreign states (repealed)

Main article:Böhmermann affair

Turkish presidentRecep Tayyip Erdoğanhimself made a complaint in 2016 against German satiristJan Böhmermannas a private person because of an alleged insult.The Deputy Prime Minister of Turkey,Numan Kurtulmuş,called the poem a "serious crime against humanity".

On 1 June 2017 the GermanBundestagdecided by a unanimous vote to repeal this section. This decision went into effect on 1 January 2018.

§ 130: Sedition

Section 3 outlawsdenying the genocide committed under the rule of National Socialism(1933–1945). Section 4 prohibits glorifying or approving the reign of the Nazis.

§ 130: Incitement to hatred (Volksverhetzung)

Main article:hate speech

Section 130 makes it a crime to:

• incitehatredagainst segments of the population or call for violent or arbitrary measures against them in a manner capable ofdisturbing the peace
• toinsult,maliciouslymalign,ordefamesegments of the population in a manner capable of disturbing the peace
• disseminate, publicly make accessible, produce, obtain, supply, stock, offer, announce,commend,undertake to import or export, orfacilitatesuch use by another of written materials that assaults the humandignityof others by insulting, maliciously maligning or defaming segments of the population or a previously indicated group
• approveof,denyordownplayan act committed under the rule ofNational Socialismin a manner capable of disturbing the peace

This section is often applied to trials related toHolocaust denial.

§ 131: Representation of violence (Gewaltdarstellung)

Outlaws the dissemination or public display of media "which describe cruel or otherwise inhuman acts of violence against human or humanoid beings in a manner which expresses a glorification or rendering harmless of such acts of violence or which represents the cruel or inhuman aspects of the event in a manner which injureshuman dignity".

This section was used as the legal basis for confiscating somehorror moviesand a fewvideo gamessuch asMortal Kombat,Manhunt,andCondemned.

§ 140: Rewarding and approving crimes

Outlaws rewarding or approving of crimes "publicly, in a meeting or through dissemination of writings […], and in a manner that is capable of disturbing the public peace".This only applies to crimes where failure to report is an offense (§ 138), among them preparation of a war of aggression (§ 80), murder, robbery, treason, and counterfeiting money.

This section formed the grounds for the lawsuit againstHolger Voss.

§ 175: Homosexual acts between men (repealed)

Main article:Paragraph 175

This section, which was in force in some form or other from 1871 to 1994, criminalized sexual acts between males under circumstances that varied as the law was modified over the years. Acts between consenting adults, if not done in the context of prostitution, were excluded from prosecution in 1969. Until 1969 the section also criminalized sexual acts between humans and animals. No corresponding legislation against lesbian sex acts existed.

§ 202c: Preparation of data espionage or data interception

Highly controversial, it outlaws the preparation of an act of data espionage (§ 202a) or data interception (§ 202b) by making, obtaining, selling, distributing (or otherwise committing or making accessible to others)

1. passwords or security codes to access data, or
2. computer programs whose purpose is to commit such an act.

As the definition of a "program with the purpose of committing data espionage or data interception" is quite vague, there is a lot of debate how this new prohibition is to be handled in court, since software essential to system or network security might be seen to fall under this act as well. Too extensive an interpretation will surelycollide with the freedom of exercise of occupation as well as the right to property (Articles 12 and 14 of the Basic Law).

§ 211: Murder (under aggravating circumstances)

Main article:Murder (German law)

In German:Mord.The intentional, successful killing of another person, with at least one of the aggravating circumstances mentioned in § 211 sec.2 fulfilled. Those circumstances concern base motives, criminal aims or cruel ways of committing the crime. An intentional killing that does not qualify forMordis calledTotschlag(§ 212). § 211 is the only crime within theStrafgesetzbuchthat carries amandatory sentenceoflife imprisonment(a sentence oflife without paroleis not expressly provided for in German law, but it is possible certain convicts of murder can spend the rest of their lives in prison).

§ 218: Abortion

Main article:Abortion in Germany

Demonstration against an earlier version of § 218 in Göttingen, 1988

Regulating abortion, in combination with § 218a. Revised several times, with an 1974 liberalization declared unconstitutional by the courts, and historically very controversial. After a multi-partisan compromise was reached during the early 1990s, it permits abortion during the first trimester, upon condition of mandatory counseling and a waiting period, and in rare exceptional cases afterwards. After this compromise was found, there has been relatively little further controversy about the section.

§ 219a: Ban on advertising for abortions

Main article:Paragraph 219a

Paragraph 219a forbade medical professionals from providing information about any abortion services they offered.The law was enacted in 1933, months after the Nazi party had come to power. It was repealed in 2022.

§ 323c: Duty to Rescue

See also:Duty to rescue

This section requires everybody to "render assistance during accidents or a common danger or emergency" if necessary, as far as can be expected ( "under the circumstances, particularly if it is possible without substantial danger to himself and without violation of other important duties" ). Refusing to assist can be punished with up to one year of imprisonment. As a consequence, should an attempt at first aid prove unsuccessful or actually harmful, it will not be prosecuted (Good Samaritan law). Note that while the duty, in itself, only exists so far as one is actually capable of providing aid, having passed a course in first aid is required for a driving license, and thus on this level is expected from all motorised traffic participants.

External links

Full law texts

• German Strafgesetzbuch (in English)
• (in German)German Strafgesetzbuch
• (in German)Strafgesetzbuch für das Deutsche Reich vom 15. Mai 1871.Current version with links to all versions since inception
• (in German)Strafgesetzbuch für das Deutsche Reich vom 15. Mai 1871. Historisch-synoptische Edition. 1871-2009– all versions since inception with enforcement periods and synopses

Special topics

• (in German)List of symbols in violation of § 86aArchived2019-06-01 at theWayback Machine