Overuse in the Criminal Justice System in Germany

Abstract

INTRODUCTION In 2016, the case of the satirist Jan Bohmermann has opened a lively public controversy on criminalization, concerning the rarely used offence “defamation of organs and representatives of foreign states” according to section 103 German Criminal Code. In his television broadcast Jan Bohmermann read a satirical poem under the title “abusive criticism” on the Turkish State president Recep Tayyip Erdogan. The government of Turkey as well as the State president reported to the Criminal Investigation Department or to the Public Prosecution Office and the German Chancellor Angela Merkel gave authorization to the prosecution (sec. § 104a German Criminal Code). Hence, the views on this subject have been divided, strong support has been shown for the abolition of this ‘majesty’ offence. Even the German Chancellor announced a bill of the German government to abolish section 103 German Criminal Code. Despite this special offence and this special case, the overuse of criminalization appears more significant concerning minor volume offences, like shoplifting and non-payment of fare. Recently, violations of laws applying to foreigners also gain importance, because of the migration of refugees. OVERUSE OF CRIMINALIZATION Criminalization is often connected with principles and moral values that change over times. This applies, in particular, to offences against sexual selfdetermination. Nowadays, a liberal understanding of sexual morals dominates and experiences its limits in socially damaging cases in order to ensure sexual intercourse without force. Well-known examples of this change in moral values are the decriminalization of the homosexual orientation of men at the age of 21 years and the abolition of adultery in 1969. In contrast to this, male exhibitionism is still punishable according to sec. 183, paragraph 1 German Criminal Code. Against the backdrop of empirical findings the threat posed by male exposure is questionable. Though prostitution usually is not criminalized, an exception is unlawful prostitution in section 184f German Criminal Code. The offence refers to prostitutes who persistently contravene a prohibition enacted by ordinance against engaging in prostitution in particular places at all or during particular times of the day. The Federal Constitutional Court rejected a violation against the principle of clarity in law according to Article 103, paragraph 2 German Basic Law and upheld the statute as constitutional.