scholarly journals The Constitutionality of § 89a of the German Criminal Code (StGB) and the Concept of a Serious Act of Violent Subversion: The German Federal Court of Justice (Bundesgerichtshof), Judgement of 8th May 2014 - 3 StR 243 / 13

2017 ◽  
Vol 18 (3) ◽  
pp. 631-646
Author(s):  
Christopher Ohnesorge ◽  
Julia Wilkes ◽  
Marius Eichfelder ◽  
Jinnus Rastegar ◽  
Matthias Derra ◽  
...  
Keyword(s):  
Federal Court ◽  
Criminal Code ◽  
Legal Certainty ◽  
Frankfurt Am Main ◽  
Court Of Justice ◽  
Actus Reus ◽  
German Constitution ◽  
Federal Court Of Justice ◽  
German Parliament ◽  
Terrorist Acts

As a reaction to the increasing terrorist threat in Europe, the German Parliament (Bundestag) passed a law penalizing the preparation of terrorist acts endangering the state: § 89a German Criminal Code (StGB). The Regional Court of Frankfurt am Main (LG Frankfurt) was the first to apply this section to a case where a young man was accused of building a pipe bomb. Upon his conviction, the defendant appealed to the German Federal Court of Justice (BGH), claiming § 89a StGB to be unconstitutional. The BGH reviewed whether the statute was in conformity with the principles of the German Constitution (GG), including the principle of legal certainty and appropriateness. It held that these principles were fulfilled, if stricter requirements are applied regarding the mens rea in order to counterbalance the broad actus reus. It decided that the Regional Court had not fulfilled this particular requirement and quashed the conviction insofar. This case and § 89a StGB caused ripples amongst legal scholars, especially due to the unusual penalization of preparatory acts and the broad scope of the statute's application. This case also produced an unprecedented change within the judge's bench.

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

2021 ◽  
Vol 22 (2) ◽  
pp. 288-302
Author(s):  
Khulan Davaanyam ◽  
Franziska Wolff ◽  
Ranya Khalaf
Keyword(s):  
Federal Court ◽  
Criminal Code ◽  
Court Of Justice ◽  
Life Sentence ◽  
Federal Court Of Justice ◽  
Road Race ◽  
The Subject ◽  
German Parliament ◽  
Criminal Legislation ◽  
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.

Freiheit der Advokatur

2021 ◽  
Author(s):  
Philipp Heinrichs
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Selection Procedure ◽  
Federal Court ◽  
The European Union ◽  
Court Of Justice ◽  
German Constitution ◽  
Federal Court Of Justice ◽  
The Subject

Since the abolishment of singular admission to the higher regional courts in 2000, the judiciary has been asking itself the question whether singular admission to the Federal Court of Justice is compatible with the German Constitution and the laws of the European Union. In particular, the non-transparent selection procedure was and is the trigger of controversial discussions and the subject of legal disputes. The work questions the conformity of singular admission to the Federal Court of Justice with the German Constitution and considers the selection procedure to be without transparency, comprehensibility and rule of law.

scholarly journals The Constitutionality of §89a IIa of the German Criminal Code and the Concept of a Serious Violent Offense Endangering the State: The German Federal Court of Justice Decision of April 6, 2017—3 StR 326/16

2020 ◽  
Vol 21 (4) ◽  
pp. 775-786
Author(s):  
Anne-Sophie Zaunseder ◽  
Michelle Heblik
Keyword(s):  
Federal Court ◽  
Criminal Code ◽  
Legal Issues ◽  
The Past ◽  
Violent Offense ◽  
Court Of Justice ◽  
Short Summary ◽  
Basic Law ◽  
Federal Court Of Justice ◽  
Systematic Structure

AbstractThis Article discusses the constitutionality of the recently implemented § 89a IIa of the German Criminal Code (Strafgesetzbuch—StGB) on the basis of the case 3 StR 326/16 decided by the Federal Court of Justice (BGH) on April 6, 2017. First, this Article introduces § 89a IIa of the StGB with a short summary of the events leading to the present anti-terrorist legislation in Germany and the development of the legislation over the past few decades. Second, the facts of the BGH’s case will be outlined, and an overview of the systematic structure of § 89a I, II No. 1, IIa StGB will be provided. Within this framework, the constitutionality of § 89a IIa StGB will be discussed, focusing on the prerequisite of appropriateness, with special attention paid to the requirement of reasonability and the prerequisite of legal certainty pursuant to Article 103(II) Basic Law (Grundgesetz—GG). Finally, § 89a I, II No. 1, IIa StGB will be applied to the BGH’s case after discussing the contentious legal issues regarding these doctrines. This Article concludes by discussing the BGH’s decision, which deems § 89a IIa StGB to be constitutional.

Minderheitsschutz im Personengesellschaftsrecht

2020 ◽  
Author(s):  
Björn Staudinger
Keyword(s):  
Case Law ◽  
Federal Court ◽  
Regulatory Framework ◽  
Majority Voting ◽  
Careful Examination ◽  
Legal Certainty ◽  
Fiduciary Duties ◽  
Legal Principles ◽  
Court Of Justice ◽  
Federal Court Of Justice

This study deals with the changing case law on the control of majority voting in German partnership law. It examines the consequences of the German Federal Court of Justice abandoning the so-called ‘Bestimmtheitsgrundsatz’ (the principle of legal certainty) and how to deal with the ongoing legal uncertainty regarding the existence of the so-called ‘Kernbereichslehre’ (the principle on protecting minorities in corporations). To answer this question, the author examines how majority voting can be controlled within the existing regulatory framework. In this context, after careful examination of previous case law, he argues that the ‘Kernbereichslehre’ should be abandoned and replaced by already existing legal principles, such as fiduciary duties.

Mounir El Motassadeq - A Missed Chance forWeltinnenpolik?

2007 ◽  
Vol 8 (4) ◽  
pp. 443-453
Author(s):  
Timo Kost
Keyword(s):  
Federal Court ◽  
Criminal Code ◽  
Constitutional Court ◽  
Court Decisions ◽  
Criminal Courts ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

Within less than two months, three court decisions were rendered that seem to be the last step in the seemingly never-ending story of Mounir El Motassadeq before German criminal courts. First, on 16 November 2006, the German Federal Court of Justice (Bundesgerichtshof- hereinafter BGH) found Motassadeq guilty for being a member of a terrorist organisation and for abetting the murder of 246 people, according to sections 129 and 211 (27) of the German Criminal Code (Strafgesetzbuch- hereinafter StGB). The court sent the case back to the Higher Regional Court of Hamburg (hereinafter OLG Hamburg), which sentenced Motassadeq to 15 years imprisonment on 8 January 2007. Following the decision of 16 November 2006, Motassadeq lodged a constitutional complaint to the German Federal Constitutional Court (Bundesverfassungsgericht- hereinafter BVerfG), which declined to hear Motassadeq's case on the grounds that the complaint was both inadmissible and unsubstantiated.

scholarly journals Desecration of Corpses in Relation to § 8(1) no. 9 German Code of Crimes Against International Law (VStGB): The Judgment of the German Federal Court of Justice (Bundesgerichtshof) of July 27, 2017–3 StR 57/17

2021 ◽  
Vol 22 (2) ◽  
pp. 276-287
Author(s):  
Vanessa Bergmann ◽  
Franziska Blenk ◽  
Nathalie Cojger
Keyword(s):  
International Law ◽  
International Conflict ◽  
Federal Court ◽  
Criminal Court ◽  
The Body ◽  
Humanitarian Law ◽  
Frankfurt Am Main ◽  
Court Of Justice ◽  
Syrian Civil War ◽  
Federal Court Of Justice

AbstractAs a reaction to the killing and beheading of two soldiers in the Syrian Civil War, the German Federal Court of Justice (BGH) set a milestone in the interpretation of § 8(1) no. 9 of the German Code of Crimes against International Law (VStGB). The judges confirmed the conviction of a young German citizen with Syrian roots, Aria L., who had been tried and convicted before the Higher Regional Court of Frankfurt am Main (Oberlandesgericht (OLG) Frankfurt am Main). Within the certiorari, the BGH reviewed whether the statute conformed with the principle of legality found within the Grundgesetz (GG), Germany’s constitution. The Court held that the corpse of a person killed is protected from desecration under humanitarian law pursuant to § 8(1) no. 9 VStGB, the equivalent to Article 8(2)(b)(xxi) and (3)(ii) of the Rome Statute for the International Criminal Court (ICC). Reviewing this particular decision, it was determined that under the circumstances of a non-international armed conflict, beheading someone, placing the head on a metal rod, and taking pictures afterward in order to upload them onto social media is gravely humiliating and degrading. The head is incomparably the part of the body that identifies a person. Furthermore, it is irrelevant whether the perpetrator had any physical influence over the person. In addition, war crimes can be committed in a non-international conflict, which should, however, be treated equally as an international conflict. This outcome triggered diverse reactions amongst legal scholars, especially due to the extension of the understanding of a “person” who is to be protected under humanitarian law.

Einverständliche Gefährdungssachverhalte und deren Sittenwidrigkeit

2021 ◽  
Author(s):  
Tobias Brandt
Keyword(s):  
Federal Court ◽  
Criminal Code ◽  
Doctoral Thesis ◽  
Current State ◽  
Court Of Justice ◽  
Federal Court Of Justice

The decisions of the Federal Court of Justice in 2013 and 2015 revived the debate on the scope of Section 228 of the German Criminal Code. This doctoral thesis takes a detailed look at the current state of the discourse and develops its own, restrictive approach to the principles of morality. In particular, it will be examined which groups of cases are to be subject to consent at all, and thus also to Section 228 of the German Criminal Code. In this respect, it becomes apparent that some cases are already to be treated as autonomous self-endangerment and thus escape the question of a violation of the principles of morality.

Prosecuting Terrorism Financing in Germany: Bundesgerichtshof (German Federal Court of Justice), Judgment of 14 August 2009 — 3 StR 552/08

2010 ◽  
Vol 11 (11) ◽  
pp. 1292-1305 ◽  
Author(s):  
Christoph Safferling ◽  
Timo Ide
Keyword(s):  
Criminal Law ◽  
Federal Court ◽  
Criminal Organization ◽  
Criminal Code ◽  
Specific Aspect ◽  
Court Decision ◽  
Criminal Prosecution ◽  
Individual Liberty ◽  
Court Of Justice ◽  
Federal Court Of Justice

AbstractThe German Bundesgerichtshof (Federal Court of Justice) has to frequently adjudicate cases related to terrorism. The “War on Terror” has reached the German judiciary shortly after its proclamation as a reaction to the 9/11-attacks. Ever since, German criminal law is grappling with the question of how to harmonize security interests on the one hand with individual rights and liberties on the other. The expansion of the criminal law is a real threat for the previously liberty-oriented criminal law. The court decision discussed in this case addresses a specific aspect of terrorism: the financing of terrorist activities. As there is no special law prohibiting such kind of behavior, the judges had to apply section 263 of the German Criminal Code, which deals with fraud, and combine this with sections 129 a and b of the German Criminal Code, which makes being merely a member of a criminal organization into a criminal offence. A highly sensitive field of law that is put under scrutiny by anti-terrorism measures is procedural law. As secret investigation measures through electronic surveillance become more prevalent and sophisticated, the admissibility of the evidence, which was gained mainly by intelligence, becomes more and more questionable. The court decision discussed in this paper proves the willingness of the Federal Judges in Germany to reduce individual liberty rights in order to enhance the effectiveness of criminal prosecution.

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