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.

scholarly journals Radical men and sympathizing women? Gendered constructions of agency in charges of terrorism in Germany

2021 ◽  
pp. 203228442110602
Author(s):  
Kerstin Eppert ◽  
Viktoria Roth
Keyword(s):  
Criminal Liability ◽  
Federal Court ◽  
Political Agency ◽  
Dominant Male ◽  
Scholarly Research ◽  
Institutional Practices ◽  
The Past ◽  
Court Of Justice ◽  
Federal Court Of Justice

In the past, scholarly research in extremism and terrorism studies tended to analyse women’s engagement with violent ideology-based groups from a normative angle, framing female commitment to radical ideologies and violence as cases of inherent victimization or as instigated by a dominant male. Particularly in the negotiation of women’s transnational support of terror organizations in Syria, gendered frames of political agency have been reproduced in the institutional practices of the judiciary. Taking the case of Germany and four appeals lodged at the Federal Court of Justice between 2015 and 2017 as examples, this article analyses gendered conceptions of agency in argumentation with respect to criminal liability in the context of extremist engagement in Syria. It identifies, first, the gendered construction of defendants before the courts and inherently gendered assumptions about agency and second, a formal organizational understanding in the terrorism clauses as the two underlying problems and suggests that current concepts in terrorism norms at national, EU und international levels deflect the focus on the wider conflict dynamics where civilians’ support to violence is concerned.

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 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.

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.

Der Verbandsstrafenregress im Nachgang an störendes Zuschauerverhalten

2019 ◽  
Author(s):  
Thorsten Nees
Keyword(s):  
Federal Court ◽  
Legal Issues ◽  
Legal Practice ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
The Subject

Football associations taking recourse to imposing penalties is not only an issue that the German Federal Court of Justice, the Bundesgerichtshof, has had to deal with repeatedly, but is also the subject of numerous articles. However, the topic has not yet been sufficiently covered by monographs. This work closes that gap in research by addressing the topic and discussing in detail the legal issues that arise when football associations impose a penalty on a spectator. The author first addresses the offences that cause liability, pointing out the need for more in-depth reflections. He then examines known problem areas (attribution of damage, limiting the value of the compensation for damages, case-by-case partition of damages and the legal practice of association courts). He also focuses on answering the question of whether the possibility of imposing a penalty is affected in cases where the penalty imposed by the football association is based on its own ineffective regulations. Considering previously expressed positions on this issue, the author presents his own solutions to it.

Management Buy-Out, Cash Pooling, Up-Stream Loans and Guarantees in German Group Companies: Old Concepts – New Developments

2004 ◽  
Vol 5 (10) ◽  
pp. 1217-1232
Author(s):  
Jochen Herbst
Keyword(s):  
Limited Liability ◽  
Federal Court ◽  
Legal Issues ◽  
Legal Practice ◽  
New Developments ◽  
Share Capital ◽  
Court Of Justice ◽  
German Company ◽  
Federal Court Of Justice

For more than a century, the cardinal provision ensuring the preservation of the capital reserve in the registered share capital amount in a Gesellschaft mit beschränkter Haftung (GmbH – German company with limited liability) has continued unaltered. This is the payout prohibition contained in § 30 (1) Gesetz betreffend die Gesellschaften mit beschränkter Haftung (GmbHG – German Act on Companies with Limited Liability), which the Bundesgerichtshof (BGH – German Federal Court of Justice) has identified as a “cornerstone of the GmbHG.“ In consideration of the impressive period of applicability and evident resistance of the provision against legislative encroachments, the lay person, for example a managing director of a GmbH as primary addressee of the provision, is now supposed to be able to assume that at least the fundamental legal issues concerning the provision have been sufficiently clarified through jurisprudence and legal practice in the meantime.

Lawyer's Ranking From A Constitutional Perspective: The Federal Constitutional Court's JUVE-Handbook Decision

2003 ◽  
Vol 4 (3) ◽  
pp. 237-245 ◽  
Author(s):  
Kristofer Bott
Keyword(s):  
Publishing Industry ◽  
Freedom Of Expression ◽  
Federal Court ◽  
Constitutional Court ◽  
The Public ◽  
Court Of Justice ◽  
Basic Law ◽  
Federal Court Of Justice ◽  
Federal Constitutional ◽  
Article 5

In November, 2000, the Bundesverfassungsgericht (Federal Constitutional Court) surprised the public by holding that the publisher's freedom of expression and press secured by Article 5 of the Grundgesetz (Basic Law) could be violated if the publication of advertisements was prohibited, provided the advertisement is included in the scope of protection itself. At that time shocking advertisements were being heavily discussed in the public. This public debate had been sparked, in part, by the Bundesgerichtshof (Federal Court of Justice) decision prohibiting Stern Magazine's publication of advertisements containing repulsive pictures on behalf of the fashion and lifestyle brand Benetton. The magazine complained to the Federal Court of Justice against this judgment, an appeal that generated the dictum quoted above. In November, 2002, the Federal Constitutional Court had another opportunity to characterize the importance of the freedom of expression and the press in competition law, particularly in the context of the publishing industry.

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.

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.

Sign in / Sign up

Export Citation Format

Share Document