German Criminal Law Research Articles

THE PRINCIPLE OF COMPLICITY IN INTENTIONAL SELF-INFLICTED INJURY AS A NEGATIVE PREMISE FOR THE OBJECTIVE ATTRIBUTION OF AN EFFECT FROM THE PERSPECTIVE OF CRIMES AGAINST LIFE AND HEALTH IN POLISH AND GERMAN CRIMINAL LAW

The subject of the present article is the principle of complicity in intentional self-inflicted injury as a negative premise for objective attribution of an effect from the perspective of crimes against life and health in Polish and German criminal law. First, the problem of negative prerequisites for objective attribution of an effect is briefly discussed, which is an extremely interesting issue both from the perspective of dogmatics and the practice of criminal law. Then the article brings closer the criterion of the principle of victim autonomy by means of examples taken from the German doctrine and jurisprudence in the area of crimes against life and health and analyses them from the perspective of the Polish Penal Code. The whole allows to get acquainted with the discussed premise and to understand both its theoretical essence and a somewhat illustrative exemplification

German Experience of Terminating Criminal Prosecution with the Imposition of Duties and Regulations on the Accused in the Context of the Russian Draft Law on Criminal Offence

The second attempt of the Supreme Court of the Russian Federation to introduce the concept of a criminal offence into Russian criminal and criminal procedure legislation widens the non-rehabilitating grounds for the termination of a criminal case or prosecution with the imposition of other criminal law measures: it is suggested that, in addition to a court fine, community work and partially paid work should also be introduced. This leads to certain problems, including problems with the presumption of innocence and the observance of the principle of justice. The authors turn to the German experience for a better understanding of the situation. Germany faced similar problems much earlier, when § 153а was introduced in the Criminal Procedure Code of the Federal Republic of Germany (CPC of the FRG); it provided for an opportunity to terminate criminal prosecution for criminal offences on the grounds of expediency with the imposition of duties and regulations on the accused, which are akin to criminal law measures under draft law № 1112019-7. Taking into consideration the theoretical approaches developed in Germany, the practice of the Constitutional Court of the FRG and the Supreme Court of the FRG, the authors examine the goals of introducing § 153а in the CPC of the FRG, the practice of its implementation, as well as the problem of terminating criminal prosecution on the grounds of expediency with the imposition of duties and regulations on the accused connected with the observance of the Constitution of the FRG, the presumption of innocence, the principles of justice, certainty, equality before law; they analyze the controversial legal nature of duties and regulations under § 153а in the CPC of the FRG. According to German criminal procedure law, the termination of criminal prosecution on the grounds of expediency with the imposition of duties and regulations on the accused is a right, and not a duty of the corresponding officers and agencies as it is, in fact, an alternative to criminal prosecution which makes it possible to terminate it at a certain stage when there are all the necessary legal grounds for criminal prosecution.

Good Scientific Practice and Academic Reviews

Academic reviews (hereinafter “reviews”) are an integral part of legal journals. While their purpose and usefulness are at times disputed, all sub-disciplines of legal studies nevertheless argue in equal measure that a lack of substantial academic exchange by way of reviews would result in the impoverishment of scientific discourse. In German criminal law scholarship, two recent cases have sparked debate about whether certain rules should govern the publication of such reviews. The following remarks are intended to provide a thought-provoking impulse on the matter.

CRIMINAL PROCEDURAL FORMS FOR SOLVING THE PROBLEM OF PETTY CRIME IN SERBIAN AND GERMAN LAW

The subject of the paper is the analysis of solutions that exist in Serbian and German criminal procedural law and refer to cases in which the public prosecutor in the field of petty crime is authorized to act towards adult perpetrators in accordance with the principle of opportunity of criminal prosecution. In relation to one variant of this principle, which implies conditional and temporary restraint of criminal prosecution, there is a distinct similarity in both mentioned legislations. However, with regard to the classic form of this procedural principle, which enables the public prosecutor to refrain prosecution for reasons of expediency, where he primarily values the public interest in prosecuting, there is a striking difference, because our criminal procedural law does not allow such a variant of the principle of opportunity of criminal prosecution. This difference is a consequence of a different criminal policy approach, because while in German criminal law the problem of petty crime is solved exclusively by procedural mechanisms, in Serbian criminal law, in addition to procedural law, there are also appropriate instruments in the substantive criminal law.

Draft Law on Criminal Misconduct given the German Experience of Legal Regulation

The paper considers the second attempt made by the Supreme Court of the Russian Federation in terms of introducing the concept of criminal misconduct into the Russian criminal and criminal procedure legislation, examines the goals of its introduction. The authors conclude that the introduction of a criminal offense in the draft law No. 1112019-7 will entail the need to review some approaches in Russian law: the legal nature of the crime, the ratio of a criminal offense with a minor act and an administrative offense, the elements of a crime with administrative prejudice, the principle of justice. It seems possible to achieve procedural effectiveness, reduce the burden on judges and protect the rights of victims without introducing a criminal offense within the existing criminal and criminal procedural mechanisms related to exemption from criminal liability and expansion of non-rehabilitating grounds for termination of a criminal case or criminal prosecution. It seems possible to use the already established categorization of crimes in relation to crimes of small and medium gravity. In terms of expanding the grounds for terminating a criminal case or criminal prosecution, it is appropriate to use the experience of the German legislator, which provides for the possibility of terminating criminal prosecution on grounds of expediency when the accused fulfills various duties and regulations assigned to him. In German criminal procedure law, the termination of criminal prosecution on grounds of expediency when assigning duties or prescriptions to the accused is the right of the relevant officials and bodies, and not their obligation, since in fact it is an alternative to criminal prosecution. This will allow it to be terminated at a certain stage in the case when there are all legal grounds for criminal prosecution.

WITNESS IMMUNITY IN CRIMINAL PROCEEDINGS AS AN INDICATOR OF THE MATURITY OF THE LEGAL SYSTEM

Witness immunity, that is, the right of persons expressly referred to in the criminal procedure law to refuse to testify about circumstances, is considered in the special literature as one of the criminal procedure institutions, relating to the procedural status of the witness or the rules for his or her interrogation. Purpose: to demonstrate that the list of persons having witness immunity and the legal characteristics of the circumstances to which they are entitled not to testify, and the general rules for interrogating such persons, and exceptions to these general rules are indicators of the level of development of the national criminal procedure and legal system of a particular State. Methods: the author uses the methods of structural-system analysis and synthesis, comparative jurisprudence. The author's comparative analysis of Russian and German criminal procedure law clearly demonstrates the social and economic conditionality of the methods of securing witness immunity and the possibility of international exchange of law enforcement experience. The main conclusion from the study is the following: the legal significance of the criminal procedural institution of witness immunity goes far beyond the actual criminal procedure, and this institution has significant dynamics, reflecting changes in the socio-economic and political life of society.

PRINCIPLE OF OPPORTUNISM IN CRIMINAL LAW (ANALYSIS OF THE PROBLEM AND DE LEGE FERENDA POSTULATES)

The article discusses to what extent the principle of opportunism should be used in Polish criminal law in cases where the extent of the criminal case would justify the limitation of its scope in the proceedings. However, to depart rom the principle of legality, which is binding now, it is necessary to satisfy many conditions as well as to account for the costs of the proceedings, and in many cases, to take into account limitation periods in prosecuting and judging them. It is justifi ed to compare the prosecution and judicial authorities to other entities, despite their specific functions, in terms of effi ciency of actions and the level of a product developed. The article also presents certain solutions adopted in German criminal law to formulate de lege ferenda postulates.

Cannabis policy reform in Germany: Political and constitutional discourses on decriminalisation and regulation strategies


 There is relentless discussion in Germany about the right manner to deal with cannabis and its users. In 1994 and 2004, the Federal Constitutional Court reaffirmed the legal appropriateness of prohibition. However, since then, studies and data about the dangers and effects of cannabis use have quieted alarm, and Europe, alongside the once-prohibitive United States, has had its initial experiences with liberalised use of cannabis. Since the founding of the Schildower Kreis, a network of experts from science and practice, 122 German criminal law professors have petitioned the Bundestag for an Enquête Commission. The aim of this paper is, on the one hand, to provide insight into German narcotics law. On the other hand, the political arguments for sticking to prohibition are contrasted with the numerous empirical findings that are now available. The results of the empirical studies now challenge the Federal Constitutional Court and the legislature to review their previous course and possibly break new ground in drug policy. The basis of the Federal Constitutional Court’s decisions no longer exists. The Narcotics Act and constitutional discourse on cannabis prohibition need to be reviewed, as do political arguments about resources and high costs. Indications of a paradigm shift in drug policy, as required by the Global Commission on Drug Policy, are hesitantly appearing in Germany.

Formalism versus pragmatism – A comparative legal and empirical analysis of the German and Dutch criminal justice systems with regard to effectiveness and efficiency

The German and the Dutch criminal justice systems not only share a common legal history but also follow the inquisitorial tradition with the prosecution playing a strong role. Despite these commonalities, there are a number of remarkable differences between the two jurisdictions, particularly with a view to procedural law and legal practices. While the German criminal law is known for being formal and rather doctrinal, the Dutch system is strongly driven by pragmatism and efficiency. This efficiency has become an important factor for the progressing Europeanization of criminal law and increasingly influences German criminal procedural law. This article compares selected aspects of the Dutch and German criminal justice systems. While previous legal comparative studies of the two neighbouring countries have focused on substantive criminal law, this paper will mainly deal with procedural criminal law and prosecutorial practices. The emphasis will be on criminal justice effectiveness and efficiency. Some of the questions addressed are: what constitutes an efficient criminal justice system? How is efficiency defined and implemented in legal practice? A variety of indicators for criminal justice efficiency are proposed and applied to criminal proceedings, prosecutorial practices and the sentencing systems in both countries.

Failure to render medical aid to the patient (Article 124 of the Criminal Code of the Russian Federation) as an intended crime: a concurring opinion

The subject of this research the judicial practice of Russian courts for the period from 2010 to 2020 on crimes qualified under the Article 124 of the Criminal Code of the Russian Federation. The subject also includes: relevant provisions of the Russian, Soviet and foreign legislation; doctrinal research dedicated to such types of crimes and iatrogenic crimes in general; as well as crimes with two elements of guilt. The goal is to indicated the discrepancies in the practice of Russian courts, clarify the contributing circumstances, and develop proposals for their elimination. The scientific novelty of this work is dictated by integrity of the used data and methods, previously undisclosed factors of law enforcement and doctrinal contradictions, as well as conclusions that are formulated in the Russian criminal law science for the first time. The first conclusion of this research consists in determination of essential contradictions in the practice of Russian courts with regards to application of the Article 124 of the Criminal Code of the Russian Federation “Failure to render medical aid to the patient”. The author established that the reason for these contradictions lies in disparity of the researchers in the question of the subjective side of the crime. The cause of this phenomenon is of complex nature, including the influence of the previously refuted theory of the “mixed” element of guilt. The main result of this research consists in substantiation possibility of establishing the two elements of guilt in the act qualified under the Article 124 of the Criminal Code of the Russian Federation, which however results from the flaws of the legal technique. As a solution to this problem, the author offers the projects of reforming the domestic criminal law based on the adapted provisions of the German criminal law.

Developments in German Criminal Law: The Urgent Issues Regarding Prolonged Pre-Trial Detention in Germany

AbstractFreedom is one of the fundamental rights enshrined in Art. 2(2)(2) of the German Constitution. However, nearly 30,000 remand prisoners were incarcerated in pre-trial detention in Germany in 2017 pending trial. Due to the presumption of innocence, remand prisoners are subjected to a flagrant violation of their constitutional right to freedom. After outlining the legal pre-requisites of pre-trial detention under German law, this article addresses various legal areas of conflict arising from periods of prolonged pre-trial detention by examining a case brought before the Federal Constitutional Court in Germany in 2018. At the same time, the article demonstrates how severely pre-trial detention affects the personal lives of remand prisoners. The longer any such period of pre-trial detention lasts, the more important the question is whether this deprivation of liberty can be justified. Over the past few years, the number of cases involving protracted pre-trial detention has increased dramatically due to overworked courts. By emphasizing that a lack of judicial resources cannot justify lengthy terms of pre-trial detention, this article highlights the importance of the fundamental right to freedom of each and every one of us.

Developments in German Criminal Law: Speed Merchant or Murderer? The Ku’Damm Road Race Case and the New Criminal Legislation Regulating Illegal Motor Racing

AbstractThe Regional Court of Berlin (Landgericht (LG) Berlin) was the first court in Germany to mete out a life sentence for murder—pursuant to § 211 German Criminal Code (StGB)—to two men convicted of killing an uninvolved driver whose car they hit while they were participating in an illegal car race on a public highway. Upon their convictions, the defendants appealed to the German Federal Court of Justice (Bundesgerichtshof; BGH) claiming that they did not intend to kill the person and were thus acting without the necessary mens rea for murder. The question whether or not the case could be qualified as murder, and thus whether or not the existence of a killing with intent had been sufficiently proven by the LG Berlin, was the subject of several appeals and retrials. In its latest decision, the BGH confirmed the murder conviction of one of the defendants, while quashing the other defendant’s conviction and issuing a retrial. This case caused ripples amongst legal scholars as it called for the toughest possible sanctions to be imposed. However, whether the conduct qualifies as murder remains questionable. As a reaction to several similar cases of illegal car races in recent years, the German parliament subsequently passed a new law—§ 315d StGB—proscribing illegal vehicle races, thereby penalizing the participation, organization, or carrying out of an illegal vehicle race. Until that point there had been no provision criminalizing illegal racing.

Уголовное законодательство зарубежных стран о мошеннических посягательствах на собственность и законные интересы кредитных учреждений

We consider legislative problems of regulating liability for fraud in the field of lending. We conduct a comparative analysis of the provisions of the criminal legislation of foreign countries for credit fraud that infringes on the property and legitimate interests of credit institutions. We note that German criminal law provides for liability for crimes of fraud and abuse of con-fidence for criminal purposes. A feature of the German language is in this case the interpretation of the concept of “credit fraud” as “fraud”, the most correct in this case, the name of fraud in the field of credit will be as “credit fraud”. We analyze the controversial nature of the object of this crime within the framework of German criminal law and the concept of credit is given, which made it possible to conclude that the rule that ensures combating fraud in the credit sector is limited in its application exclusively to the sphere of lending. Based on the analysis of the signs of the objective side of fraudulent encroachments in the field of lending, it was concluded that the composition of credit fraud is formal. Investigative practice shows that when establishing guilt, certain difficulties arise in practice. The norm on credit fraud is characterized in criminal law as saturated with vague, evaluative signs, for example, the concept of “economy or enterprise”, “incorrectness” of documents and written information, their “significance” for making a decision on a loan. For a comparative analysis, the subject of the study was also taken the criminal law on credit fraud of the CIS member states. In the course of the analysis of the provisions of the criminal legislation of the CIS member states, it was concluded that there is no unambiguity in the formulation of the disposition of the rules on credit fraud among the member countries. Thus, the criminal legislation in matters of criminalization of fraud in the field of lending in Azerbaijan and Kazakhstan tends more to the Russian one, while in Belarus, Ukraine, Moldova, a tendency has been revealed that the norms are close to the criminal legislation of Germany. A study of the English and Australian court practice in criminal cases in the field of lending allows us to conclude that the temporary borrowing of credit funds qualifies as gratuitous fraudulent encroachment in the credit sector. US criminal law provides for liability for credit fraud as part of the general fraud rule.

Die Weimarer Reichsverfassung und das Verbot rückwirkender Strafverschärfung

The principle “nullum crimen, nulla poena sine lege” is one of the core principles of German criminal law and constitutional law. However, the history of this principle is quite varied. This article will focus on an essential part of this history, namely on the version of this principle in the Weimar Constitution of 1919. It will be shown that the principle of legality of criminal law was indeed expressed in that constitution, but that the exact scope of application of this constitutional principle was quite unclear. In this regard, it was uncertain whether the Weimar Constitution also prohibited the retroactive application of criminal laws to those cases for which a more lenient penalty was provided at the time of the offense. This ambiguity of the Weimar Constitution finally became apparent in 1933 in the so-called Reichstagsbrandprozess (Reichstag fire trial). The issue in these criminal proceedings was whether the burning of the parliament building in Berlin (February 27, 1933) was punishable by death, although this sanction was not provided at the time the crime was committed. In this essay, it will be shown that the National Socialists had to go to considerable effort to be able to ignore prohibitions on retroactivity. This undermining of the principle “nullum crimen, nulla poena sine lege” forms an important example of the willingness of the legislature to negate essential protective principles of law in the Third Reich.

Striving for Consistency: Why German Sentencing Needs Reform

AbstractGiven the debate at the seventy-second Conference of the Association of German Jurists (Deutscher Juristentag) in September 2018 on whether German sentencing needs reform, this Article will explore this very question in greater detail. In this regard, this Article will present various empirical studies in order to demonstrate that notable inconsistencies in German sentencing practice exist. This Article will then point out that broad statutory sentencing ranges, along with fairly vague sentencing guidance, are among the main causes of these disparities. Subsequently, this Article will examine several mechanisms that selected foreign jurisdictions—namely the U.S., the U.K., and Australia—have put in place in order to enhance consistency in their sentencing practices. Three mechanisms of sentencing guidance will be distinguished here: First, formal sentencing guidelines; second, guideline judgments; and third, sentencing advisory bodies as they operate in some Australian states. This Article will compare these mechanisms and assess their merits and drawbacks. Based on this comparative study, this Article will look at how to improve consistency in German sentencing practice. In this respect, this Article will present three steps that German criminal law reform should follow, including a better sentencing framework, the strategic gathering of sentencing data, and the implementation of a flexible sentencing guidelines regime.

Prior Criminal Offense As A Prerequisite For Secondary Criminal Activity

In recent years, the legal literature has begun to use the concept of secondary crime, which has long been used in German criminal law and is based on the theory of involvement in a crime. An analysis of the domestic criminal law literature suggests that this concept has not yet been sufficiently disclosed by anyone. It should be noted that the problems of involvement in the crime are given much less attention than, for example, complicity. This can be explained by the fact that involvement is considered by individual scholars within the institute of complicity.
 The term «preceding» is intended to emphasize the fact that the commission of the main elements of a criminal offense is not possible without a previous, simultaneous or subsequent actual commission, or without a previously formed intention to commit another criminal offense. In this regard, it should be noted: speaking of «precedence», we do not mean strictly temporal dependence, when one action objectively precedes in time another, and mental-logical dependence, when one action or actually precedes another, or on at least exists in the plan to commit the latter. The previous crime is not part of the main structure of the criminal offense, remaining an independent component. Such a criminal offense only complements the feature of the main criminal offense with a special meaning, narrows it and thus describes, although in itself does not turn into a feature of this composition of the main criminal offense.

Co to znaczy „zaprzeczać zbrodniom”? Uwagi na tle wykładni językowej w prawie polskim i zagranicznym w perspektywie prawnoporównawczej

The main purpose of this article was the analysis of the term "to deny" in Slovak, German, Polish and French criminal law in a comparative and legal perspective. This analysis led to present the author’s concept of the the provision penalizing historical lies. The basic research method that was used in the article is a method based on the Kötz and Zweigert’s model, assuming five basic stages of legal and comparative analysis. The last two parts contain the main conclusions of the article.

Zur Gliederung der Rechtskommunikation: mit einem Ansatz im Strafrecht

Variation in legal communication amounts to different use of legal language. Therefore, systematic recording and understanding of linguistic stratification is crucial both for the communication and the translation process. In this paper, we study existing classification models for legal communication and analyse their prerequisites. Based on the result that the presented models focus on different aspects of legal communication and are too general in their design for them to bring the complexity of legal communication across, we propose a more sophisticated model, which combines all the aspects of the analysed models. The model is discussed, using the language of German criminal law as an example. At the end, we explain the importance of the proposed model for translation-oriented analysis.

Boundaries of Criminal Liability: Participation in Crime, Preparatory Offences and Omissions

The book Core Concepts in Criminal Law and Criminal Justice: Anglo-German Dialogues is the first volume of an Anglo-German project which aims ‘to explore the foundational principles and concepts that underpin the different domestic systems and local rules’. It offers comparative perspectives on German and Anglo-American criminal law and criminal justice as ‘examples of the civil law and the common law worlds’. The comparisons ‘dig beneath the superficial similarities or differences between legal rules to identify and compare the underlying concepts, values, principles, and structures of thought’. The review essay focuses on the topics of omissions, preparatory offences, and participation in crime, all of which extend the typical criminal liability. It presents the comparative German and Anglo-American perspectives discussed in the book with regard to each topic and adds the perspective of Israeli criminal law. It points out the features common to all these topics as an extension of criminal liability and discusses the underlying considerations that justify the criminalisation of omissions, preparatory offences, and participation in crime. In evaluating whether extending criminal liability in these contexts is justified, the review essay suggests reliance on two main notions: that of ‘control over the commission of the offence’ and that of ‘liberty (or personal freedom)’.

Nazi Criminology: Continuity and Radicalisation

Contrary to the ‘rupture thesis’ favoured in Anglo-American academic discourse, Nazi criminal law did not emerge from a vacuum; nor did it disappear after 1945. The article explains and defends this ‘continuity thesis’. In fact, Nazi criminal law adopted earlier authoritarian tendencies of German criminal law and exacerbated them (the ‘radicalisation thesis’). It is for this reason that Nazi criminal law should not lightly be dismissed as ‘non-law’, thus omitting any further engagement with it. The article will show that the same continuity and radicalisation arguments can be made, mutatis mutandis, for German Nazi criminology, which ultimately became a legitimating science (‘Legitimationswissenschaft’) for Nazi criminal justice policy. The argument is developed in four stages. First, an account is given of the racist and criminal-biologistic foundations of National Socialist criminology, including their continuity both with the past and into the future. This is followed by an explanation of the influence of criminal anthropology (particularly that of Lombroso) on the ‘scientification’ of criminology (the ‘Kraepelin and Aschaffenburg paradigms’). Third, the National Socialist radicalisation of criminology on the basis of the criminal-biological utopia of the ‘blood-based’ Volksgemeinschaft is described. Thus, Nazi criminology derived its strength from and built upon biological theories of crime, which in turn laid the foundations of the deadly Nazi criminal justice policy. The discipline became a science that legitimated National Socialism, contrary to Wetzell's thesis of a somewhat dissident ‘mainstream criminology’. With regard to disturbing developments in current German politics, all this will make clear that the approach of the (German) ‘New Right’ to criminal justice is not novel at all but is derived from the ideologically infused theories and policies of Nazi criminologists during the 1930s.