German Criminal Law Research Articles

Beyond penal metaphysics: the weakening of the philosophical foundations of punishment

The present work seeks to prove the hypothesis that the history of German penal dogmatics draws a path of gradual weakening of the metaphysical foundations of punishment. Through a bibliography review, the path will begin with Kant, Hegel and the origin of retributive theories. Afterwards, the clash between the Classical School of German Criminal Law, headed by Karl Binding, and the Modern School, led by Franz von Lizst, will be discussed. Edmund Mezger's causalism and Hans Welzel's finalism will be observed, as well as the role of punishment for both authors. Claus Roxin's teleological functionalism, with his proposal to protect legal goods, and Günther Jakobs' systemic functionalism, with the idea of general positive prevention, will be analyzed below. From there we will move on to the critical theories of imputation of Winfried Hassemer and Klaus Günther and, finally, to the arrival of penal abolitionism in Germany, by the hands of Sebastian Scheerer. Finally, we will close by waving towards a weak criminal law, with a post-metaphysical character inspired in Gianni Vattimo’s Philosophy, which is capable of articulating in the half-light in favor of its own reduction, with a view to abolition.

Women Who Kill Their Abusive Intimate Partners in Non-Confrontational Circumstances - The Need for German Criminal Law Reform

Women Who Kill Their Abusive Intimate Partners in Non-Confrontational Circumstances - The Need for German Criminal Law Reform

The Bamberg Maleficent Order as an Anthropological Source for the History of Justice

The Bamberg Maleficent Order or Constitutio Criminalis Bambergensisis is a crucial legal text, as it was the first German criminal code to be published in printed form. It was a turning point in the development of German criminal law because it represented a synthesis of criminal law, shaped by the Northern Italian practice and theory under the influence of Roman and canon law and domestic Bavarian common law. The malefic order featured 22 woodcuts illustrating the legal text. Based on the preserved depictions, we can thus accurately imagine how criminal proceedings were conducted 500 years ago while simultaneously gaining a unique anthropological insight into the cultural history of the judiciary and judges at the beginning of the Modern Period.

Models of Criminal Liability of a Plurality of Perpetrators under Polish and German Criminal Law: Comparative Approach

Models of Criminal Liability of a Plurality of Perpetrators under Polish and German Criminal Law: Comparative Approach

On the Relationship Between German International Criminal Law and Counter-terrorism Criminal Law

Abstract In many cases, and, in particular, in cases concerning crimes committed in the Syrian conflict, an overlap can be identified between international criminal law and counter-terrorism criminal law. The reason for this is the approximative and normative intertwining of these two areas in German criminal law. By way of counter-terrorism criminal law, Germany implemented an organizational crime of membership in an organization whose objective or activities are directed towards the commission of, inter alia, genocide, crimes against humanity, and war crimes, as well as murder. As a consequence, non-state armed groups active in a non-international armed conflict are considered terrorist groups. While this allows for cumulative prosecution, charging, and conviction, in this article an argument will be made that the increasing intertwining of German international criminal law and counter-terrorism criminal law has a problematic side. It blurs the historical, conceptual, and normative differences between the two areas of criminal law. Eventually, this further deepens the asymmetry in the prosecution of state and non-state actors for international crimes.

Implikasi Hukum Terhadap Match Fixing Sepakbola Indonesia: Analisis Perbandingan Antara Hukum Perancis Dan Jerman

This research is intended to conduct a legal comparison between Indonesian law with French and German law regarding match fixing in football with the aim of studying the options whether the law in the two countries can be applied to our national law for the improvement of national law. This research is conducted with the type of normative legal research using secondary data in the form of primary legal materials and secondary legal materials obtained through literature study. The approach to conducting this norm comparison is included in the micro approach whose focus is the regulation of law. The method used in this research is the functional method, which means that in this research what is compared is the law as it functions and applies in a particular society in a particular place. The result and conclusion of this research find that Indonesia does not have specific regulations regarding match fixing in sports, especially football and Indonesia should be able to make “legal reforms” by regulating the application of the concept of private sector corruption, elements of prohibited actions such as accepting, giving, and requesting gifts, rewards, certain benefits for themselves or other parties that can affect the outcome or process of the match, as well as regulating more severe sanctions related to fines considering the motivation for committing match fixing crimes is financial gain with reference to French and German criminal law.

Dolo eventual: considerações sobre a teoria de Ingeborg Puppe

Through the use of specialized literature as well as the main court rulings in the country of origin, this paper offers an analysis of the central components of the theory of intentional danger (Vorsatzgefahr), proposed by the German Criminal Law Professor Ingeborg Puppe, to characterize the cases in which possible dolus is attributed. The cognitive element is analyzed; the competence to assess the known risk; and the content of the intentional danger, as a rational strategy for producing the result. Finally, some considerations are also made about the distinction between dolus directus and dolus eventualis. Although the theory is positively evaluated, some incongruities are pointed out, particularly with regard to the possible reduction of the area of dolus directus.

Legal and Epic Alienation. Fritz Bauer’s Critique of the Frankfurt Auschwitz Trial (1963-1965) and Peter Weiss’s Dramatic Treatment of the Trial in the Investigation. Oratorio in 11 Cantos (1965)

Beginning with the influences of Schiller’s humanist ideals on Hessian Attorney General Fritz Bauer’s expectations of the Frankfurt Auschwitz Trial as a legal working through of the past, this article compares the Holocaust narrative created by the West German criminal trial to Peter Weiss’s reworking of the transcripts, The Investigation. Oratorio in 11 Cantos. The article aims to show that literature is able to convey and commemorate aspects of the Holocaust that German criminal law misrepresents and omits.

Liability for Violation of the Duty of Care and Upbringing in the Criminal Code of the Federal Republic of Germany

The relevance of the topic of research is determined by the fact that the problem of non-fulfillment or improper fulfillment by parents (persons who replace them) of childcare responsibilities exists in all countries, regardless of the form of government, state system and income level of the population. Ukraine is in the process of integration with the European Union, so it is useful to study the foreign legislative approach to regulating responsibility for the violation of these obligations. The aim of the article is to study the German experience of establishing criminal liability for non-fulfillment of childcare obligations. Dogmatic, systemic-structural, statistical, historical-legal, formal-legal research methods were used in the research. Attention is paid to German legislation, which provides for the right and duty of parents to care for and bring up children. The genesis of the criminal law regarding the liability for violation of these duties is given. Statistical data on the number of criminal proceedings and persons convicted of this criminal offense (2010–2021) are summarized. The peculiarities of the structure of the crime provided for in § 171 of the Criminal Code of the Federal Republic of Germany have been studied; objective and subjective characteristics. The analysis was carried out on the basis of the doctrine of German criminal law and the practice of courts of general jurisdiction, in particular the Federal Supreme Court of Germany. The practice of the Federal Constitutional Court of Germany was used. Based on the study, conclusions were formulated regarding the definition of: the legal interest that is protected; signs of "gross" violation of duties; criteria for establishing the consequence of the crime, which is provided as the tort of creating danger. The peculiarities of the qualification of the crime in case of its commission in a place where an armed conflict is taking place are noted. The allocation of an independent structural section (subsection) in the Criminal Code of Ukraine, which includes criminal offenses against family, is supported. The discussion of the criminalization of harm caused by a crime provided by Art. 166 of the Criminal Code of Ukraine, creating a real threat (danger) of causing harm to the victim is proposed.

The Historical Development of the Hungarian Plea Bargain

The new Criminal Procedure Code entered into force on 1 July2018. Based on the experience of the last four years, the settlement has not beenpopular, but confession at the preparatory session has become favoured.Hungarian academic literature considers the settlement to be the institutionclosest to the American plea bargain. In addition to the two new legalinstitutions, the Criminal Procedure Code contains several simplifier options.Both the previous and the current Criminal Procedure Code provide successfulsimplifier tools (e.g., penalty order), however, neither the settlement nor itspredecessor — the waiver of trial — could break through. In my PhD study Iam looking for the answer to why the Hungarian plea bargain cannot breakthrough, for which purpose I examine the antecedents of the settlement from ahistorical point of view. A fundamental shortcoming can be observed: similarly,to German criminal procedure law, the principle of consensus as a legitimizingprinciple is missing from Hungarian criminal procedure. It would beworthwhile to examine the results that the introduction of the consensusprinciple would lead to. In addition, it would be important to examine thedifferent simplifier institutions in relation to each other, i.e., to which groups ofcases and how they are applied. It is possible that the aim of speeding upprocedures may be reached more conveniently by the authorities by othersimplifier solutions.

The criminal law's person By C.Lernestedt, M.Matravers (Eds.), Oxford: Hart. 2022. pp. 216. £85.00 (hbk). ISBN: 9781509923748

The criminal law's person By C.Lernestedt, M.Matravers (Eds.), Oxford: Hart. 2022. pp. 216. £85.00 (hbk). ISBN: 9781509923748

Coping with Moral Dilemmas in German Criminal Law Theory and Justice: Classical Cases and Modern Variants

Dilemma scenarios have always been among the most common problems of moral philosophy and criminal law theory. One only has to contemplate the Plank of Carneades, the classic thought experiment whereby two shipwrecked people’s only hope of rescue is a floating board that can only be occupied by one person. Other scenarios are Welzel’s switchman case and the well-known Trolley Problem. In most of the debated cases the death of one or more people is absolutely unavoidable. The protagonists do not cause the situation but are fated to come into conflict. The focus of this article is on one recent and one future variant. First, the prioritization of medical aid (also known as “triage”) is the subject of intense debate, because the COVID-19 pandemic posed a permanent risk of a temporary collapse in the health system in several countries. Situations had arisen whereby some patients can no longer be treated owing to lack of capacity. It can be asked whether a decision to treat may be based on which patients have a better chance of survival, whether reckless previous behaviour may play a role, and whether a treatment, once started, may be discontinued in favour of another. Second, dilemma scenarios are also one of the last remaining (largely unresolved) legal difficulties of autonomous vehicles. Never before has a machine been given the power to determine the life or death of human beings. Even though the automotive industry promises that such situations will hardly ever occur, the problem could prove to be a tangible obstacle to acceptance and innovation. The article offers solutions for those distinct scenarios, but it is also intended to demonstrate the underlying legal concepts of German law: namely, the tripartite analysis of criminal law and the idea of human dignity as a fundamental principle of the German constitution.

Stosowanie niemieckiego prawa karnego na okupowanych ziemiach polskich podczas II wojny światowej a art. 43 konwencji haskiej z 1907 r.

The article is devoted to the issue of the relationship between the application of German criminal law in the occupied Polish territories (the so-called incorporated territories and in the General Government) and the provisions of international law, in particular the Hague Convention. The legal basis for the application of German criminal law, examples of the strictest, draconian regulations and examples of judgments in which they were applied are presented. Then, the regulation of Article 43 of the Hague Convention and comments in the German legal science regarding this regulation are discussed. Efforts were made to confront the achievements of the doctrine with the legal status introduced by the occupant on Polish lands during World War II. The conclusions drawn, indicating multiple violations of the provisions of the Convention by the German authorities, were additionally supported by post-war judgments of Polish courts.

Trends in German Criminal Procedure Law

German criminal procedure law is under constant reconstruction, since its promulgation in the 1870s, it was changed more than 200 times. When a law undergoes long term changes, it is especially interesting to take account of specific trends – where does normative restructuring happen and how are different spheres of reconstruction interrelated. This contribution identifies 4 distinct areas where topics either remain very stable or where criminal procedure law undergoes profound changes. One area that is rather constant is the interest in efficiency of criminal investigation, trial, and sentencing. However, within this common interest in efficiency, we see important changes in the realm of human rights guarantees. Since the German Federal Constitutional Court did substantially change its interpretation of human rights, insisting upon a core of absolute protection within each and every human right, institutional safeguards of human rights in criminal procedure had to be amended, leading to a new emphasis on the principle of proportionality. While this is a trend that is mainly concerned with serious crime, lesser offenses are subject to widespread procedural decriminalization. Such widespread decriminalization is only possible because the role of the victim was newly assessed. Newfound possibilities to actively participate in criminal procedure or to interact with criminal procedure increase acceptance for procedural outcomes apart from criminal sentencing.

The principle of legality in the criminal law of Ukraine and the Federal Republic of Germany: separate regulatory and enforcement aspects

The article states that today in Ukraine, the principle of legality in criminal law is directly related to criminal law regulation and its mechanism, influencing its "work" in the regimes of violation and observance of criminal law prohibitions. Some of these features do not have a clear understanding in the criminal law of Ukraine. You can find out some of these features by referring to the relevant provisions of the German criminal law.
 It is noted that when determining the criminal-legal content of the principle of legality, one should take into account the normative guidelines enshrined in the Constitution, acts of criminal, criminal procedural, etc. legislation.
 The authors of the article conduct a consistent analysis of the provisions of the Constitution of the Federal Republic of Germany and the Criminal Code of the Federal Republic of Germany with the aim of clarifying the relevant provisions of the criminal law of the Federal Republic of Germany on the content, structure and application of the principle of legality in order to explain the specific features of the "components" of this principle and its "work" in the criminal law of Ukraine .
 The article discloses general and special legal provisions relating to the content and structure of the principle of legality in criminal law, as well as to define the structure and "components" of this principle.
 Attention is drawn to the fact that the specified understanding of the principle of legality (its components), which is based on the norms of the Constitution, the Criminal Code, the Code of Criminal Procedure, etc. legislative acts, allows you to determine the specifics of the application of this principle in criminal law.
 It is noted that the regulatory guidelines for the researched issue are "presented" primarily in Art. 103 par. 2 of the Constitution of the Federal Republic of Germany and § 1 of the Criminal Code of the Federal Republic of Germany. Thanks to the "work" of this principle, the so-called "guarantee function of criminal law" is ensured in the criminal law of the Federal Republic of Germany.
 The structural elements of the principle of legality are defined, which directly affect the "work" of this principle in criminal law. Points of consideration of the principle of legality are determined when comparing the sources of criminal law.

O granicach interpretowania prawa według Karla Engischa Studium przypadku niemieckiego

We are probably not mistaken when we state here that one of the most heatedly debated issues in German legal doctrine remains the problem of the delimitation of the limits of judicial lawmaking (Richterrecht). In other words, and in the most succinct terms, the judge’s right to legislate. For the judicial law is, and it would be difficult not to agree with such an opinion, one of the most interesting but also controversial issues in contemporary legislation. The question as to whether a judge is merely the „mouthpiece of the law”, or whether he or she is allowed to make a creative contribution to its interpretation, cannot be regarded, even today, as not serious or merely outdated. Hence, the attempt of Karl Engisch (1899–1990), one of the most prominent German criminal law theorists of the 20th century, to answer this question can and should be seen not only in terms of casuistic demonstration, but also (and who knows if not primarily) as the evidence of a scholar who rejects seeing the judge as a kind of automaton acting according to cognitive dogmas. From the Polish perspective, this account remains convincing insofar as one takes into consideration Engisch’s rejection of National Socialist delusions in the study as well as in the application of law. An attitude which, as we know, was not typical of this milieu during the Third Reich.

KRIVIČNOPRAVNA REAKCIJA NA DEČIJU PORNOGRAFIJU/PORNOGRAFIJU MALOLETNIH LICA - PLASIRANU/NASTALU ZLOUPOTREBOM RAČUNARSKE MREŽE/KOMUNIKACIJE DRUGIM TEHNIČKIM SREDSTVIMA

In the article are explained the basic characteristics of the criminal law reaction to child pornography, i.e. pornography of minors/juveniles, especially when it is realised using appropriate so-called high technology, which boils down to the misuse of a computer network or communication by other technical means. In the paper are presented the concept of pornography in the criminal law point of view, and author analyses the key normative characteristics of the criminal offense of showing, obtaining and possessing pornographic material and exploitation of a minor for pornography, (Article 185 of the Criminal Code of Serbia). The author also pays significant attention to comparative criminal law, explaining the basic characteristics of child pornography/juvenile pornography in German criminal law and in the criminal law of the United States.

Денацификация и последующее развитие уголовно-процессуального права в Западной и Восточной Германии в период с 1945 по 1990 годы

The process of development of German criminal procedure law in the period from the moment of the end of the World War II (1945) until the moment of unification of Germany (1990) is analyzed within the frameworks of this article. The mentioned time frame is highly important for studying the history of the criminal proceeding of foreign countries because, firstly, its essential feature is denazification of the legislature and, secondly, the existence of two different variants of criminal procedure law (that of the Federal Republic of Germany and German Democratic Republic. However, there are almost no researches of this period in our scientific literature. The author of the article, using German scientific sources, discloses the ways of how German criminal procedure law got rid of the legacy of the national socialism. The author also reviews and compares the changes that happened in the researched area of law in the period of «existence of the two Germanys». As a result of this analysis the author concludes that denazification of the criminal procedure law in Germany was executed by one common way from 1945 until 1949. Further social and political controversies that led to the forming of East and West Germany resulted in different development of this field in these two countries while the common frequency of the reforms was the same in both countries. Where West Germany chose the way of reforming the original criminal procedure law of 1879, East Germany designed a new criminal procedure law. Further development of the procedure in East Germany was connected to liberalization and the struggle with left radicalism and victimization. Meanwhile West Germany chose the acceptance of the Soviet procedure model forgetting many traditional institutions intrinsic to Germany legal proceeding. Based on these findings, the author distinguishes between stages of development of German criminal proceedings in the researched period. The author also suggests to divide it into periods.

The Protection of Age-related Vulnerable Persons in Criminal Proceedings under German Law – An Examination Measured Against the European Guidelines

Population ageing is a phenomenon that affects our societies, with both the number and proportion of older people growing across Europe. This impacts the legal capacity of vulnerable adults, who face challenges and difficulties in protecting their rights, defending their interests and accessing justice, both in national and in cross-border situations. In cross-border situations, for instance, in the case of citizens residing in a State other than that of their nationality, these existing difficulties may be exacerbated by additional obstacles with respect to language, representation or access to the judicial system and to public services in general. Those needs have been identified by the European Union. On 27 November 2013, the Commission adopted a Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings.1 The aim of the Recommendation is to encourage Member States to strengthen the procedural rights of all suspects or accused persons who are not able to understand and effectively participate in criminal proceedings due to age, their mental or physical condition or disabilities (‘vulnerable persons’). On 27 May 2021, the Council of the European Union invited the Member States to ensure the full implementation of the existing provisions.2 Consideration is being given to whether further action should be taken. This article assesses the extent to which the existing German criminal procedure law currently meets the standards for protecting older suspects and accused persons identified by the Recommendation of the Commission. By establishing minimum rules on the protection of procedural rights of suspects or accused persons in this field, the trust of Member States in criminal justice systems of other Member States can be strengthened and, thus, mutual recognition of decisions in criminal matters can be improved. In order to achieve the establishment of minimum rules, it is necessary to create a common understanding of the systems of the other Member States, which this article seeks to achieve. It also intends to provide insight into the German system that would be needed to decide, together with a consideration of the systems of the other Member States, whether further legislative action at the level of the European Union, in particular in the form of a Directive, is required.

Niemiecka doktryna i judykatura wobec problemu odpowiedzialności karnej „sprawców zza biurek” — uwagi na tle koncepcji „Organisationsherrschaft”

The aim of the paper is to present the concept of Claus Roxin’s Organisationsherrschaft as an alternative to attributing criminal responsibility for crimes committed by Nazi “desk murderers.” This concept arose against the background of criticism, after the trials of Adolf Eichmann and Bohdan Stashynsky, of the particularly low number of convictions in similar cases and the numerous omissions of the entire German justice system. Under West German criminal law, a distinction made between those who order murder and those who commit murder on their own initiative meant that the above-mentioned perpetrators who passed on orders from above could only be found guilty of accessory to murder. The novelty of Roxin’s views, however, consisted in an attempt to combine the previous only individualistic perspective of criminal law with the idea of mass, bureaucratic murders. The traditional system of individual attribution of responsibility, as applied for ordinary criminality characterized by the individual commission of single crimes, must be adapted to the needs of collective responsibility, in which the organization (for example, an administrative structure) as a whole serves as the entity upon which attribution of criminal responsibility is based. The first part of the text discusses the main lines of argumentation presented by the West German jurisprudence in cases concerning high-ranking members of the state power apparatus of the Third Reich. At the same time, efforts were made to emphasize the lack of homogeneity of legal solutions presented in national criminal jurisdiction in West Germany and their unacceptable consequences. The second part is devoted to the basic theoretical assumptions of the doctrine of Organisationsherrschaft and its significance for the perception of the boundary between perpetration and participation in German criminal law. The third part briefly presents the contemporary reception of Roxin’s thought, as well as the main points of his criticism, indicating, however, how important it was to effectively prosecute decision-makers from the power apparatus of the Third Reich.