40

This provision was introduced in the Penal Code in 1932 by the legislative decree of the President of the Reich of December 19, 1932, penalizing participation in a combination "or an agreement." Subsequently these last three words "or an agreement" were deleted." It has been argued by German legal writers that this Section, since it contains a special provision concerning crimes against life, belongs in the Special Part, namely in the Division (Abschnitt) dealing with homicide and murder."2

Some German commentaries to this provision have expressed the opinion that in order to be penalized under this Section 49b, there must have been a combination contemplated to exist for a longer time and that agreement to commit one single offense would not be sufficient; and that at least two persons must have combined to form such conspiracy to commit murder, so that Section 49b would not be applicable, if one of them was an agent provocateur who only pretended to have the intention to form such a combination."

In the General Part of the 1973 Code, no counterpart to Section 49b was included and so far this provision has also not been incorporated in the Special Part of the German Penal Code.

QUESTION 14

The felony-murder rule creating praeter-intentional criminal liability for murder with respect to manslaughter committed by one party to a felony is rejected by the 1973 German Penal Code in its absolute form. However, the provision of the Code providing for severer punishment in case of special consequences of the act contained in Section 22 "in effect, would limit our Anglo-American felony murder liability to cases in which during the commission of a felony, death results from negligence (in the German sense) on the part of the defendant." This provision reads as follows:

Sec. 18. More Severe Punishment in Case of Special Consequences of the Act. Where the statutory provision links to a special consequence of an act a severer punishment, only the principal or accessory who can be charged at least with negligence with respect to this consequence can be subjected to such [severer punishment].

QUESTION 15

Despite its federal system of government, the Federal Republic of Germany does not have a dual system of laender (i.e., state) and federal courts comparable to that of the United States. Both land and federal courts are integrated into a single hierarchy, with state courts on the lower levels (both of original and appellate jurisdictions) and federal courts at the top. These federal courts are appellate courts of last resort to which an appeal lies (on questions of law only; or on the question of constitutionality in the case of the Federal Constitutional Court) from the state courts. Since the bulk of both the substantive and adjective criminal law rules are incorporated in federal criminal (Strafgesetzbuch), viz., criminal procedure (Strafprozessordnung) codes, no problem of concurrent or exclusive jurisdiction of the Federal government ever arises. The same is, as a consequence, true with respect to jurisdiction over riots, mass demonstrations and crimes the jurisdiction is unlimited.

Until recently the German Penal Code included special provisions on engaging in a riot constituting a breach of peace (Sec. 115), as well as on the offense for disobeying orders to disperse given with a view of preventing a riot (Sec. 116). They read as follows:

"Sec. 115. Riot (Aufruhr).

40 Eduard Dreher, compiler. Strafgesetzbuch mit Nebengesetzen und Verordnungen. 31st ed. München, Beck, 1970. p. 273; Jürgen Baumann. Strafrecht. Allgemeiner Teil, supra note 23 at 608-609 (stresses that here a preparatory act has been made a special crime). 41 Gsovski, The Statutory Criminal Law of Germany, supra note 7(3) at 38-39 (explaining the concepts of "combination" and "agreement" in the light of German court practice); Dreher, supra note 31 at 273-275 (analysis of Sec. 49b including references to court practice) 42 Jescheck, Lehrbuch des Strafrechts. Allgemeiner Teil, supra note 23 at 468, under VII. 43 Holger Preisedanz. Strafgesetzbuch. Lehrkommentar. 26th ed. Berlin, Schweitzer. 1970. p. 161. "Dreher, supra note 31 at 273.

45 Mueller, The German Draft Criminal Code 1960, supra note 5 at 50.

"(1) Anybody who takes part in a public riotous gathering at which one of the acts specified in Sections 113 and 114 46 is committed with combined efforts, shall be punished for riot with deprivation of liberty for a term from six months up to five years.

(2) The ringleaders, as well as those rioters who commit one of the acts specified in Sections 113 and 114, shall be punished by deprivation of liberty for a term from one year up to ten years; police surveillance may also be ordered. If there are extenuating circumstances, deprivation of liberty for from six months up to five years may be imposed.

"Sec. 116. Unlawful Assembly.

"(1) If an assembled crowd on public roads, streets or places is requested to disperse by the competent official or by the commander of an armed force, any member of such crowd, who, after the third request, fails to leave, shall be punished for unlawful assembly by deprivation of liberty for up to three months or with a fine.

"(2) If, in the unlawful assembly, with combined efforts, an act of resistance has been offered to, or violence committed upon, the officials or the armed force, the punishments imposed for riot shall apply as against those who participated in the commission of such acts." "

Sections 115 and 116 have been repealed by the Third Criminal Law Reform Law of May 20, 1970 (Bundesgesetzblatt 1:505) which amended also Sections 113 and 114 of the Code." Article 2 of this Law provided for a replacement of the repealed text concerning the offense of unlawfully assembling and failure to disperse following orders to do so. However, this was no longer considered a criminal offense, but an "infraction of regulations" (Ordnungswidrigkeit) [For a discussion of this term, see Answer to Question 8]. Article 2 has the following wording:

"Art. 2. Unlawful Gathering.

"(1) Anyone who joins a public gathering or who fails to leave it, although a bearer of sovereign authority has three times lawfully requested the crowd to disperse, shall be [considered] committing an infraction of regulations (ordnungswidrig handelt).

"(2) The perpetrator who negligently does not realize that the request [to disperse] is lawful shall also be [considered] committing an infraction of regulations.

"(3) The infraction of regulations may, in the case of paragraph 1, entail retribution by a fine of up to [one] thousand DMarks, in the case of paragraph 2-by a fine of up to five hundred DMarks."

49

On the other hand, along with a more lenient attitude towards less serious offenses disrupting public peace," the Third Criminal Law Reform Law of May 20, has increased the penalties for rioting coupled with violence or threats of violence against persons or property, as well as for especially serious cases fraught with especially grave consequences (new Section 125a). These provisions read as follows:

"Sec. 125. Riot.

"(1) Any person who takes part as perpetrator or participant in 1. acts of violence against persons or property, or 2. threatening of persons with an act of violence, which are committed out of a crowd with combined efforts in a manner endangering public security or who influences the crowd in order to

40 Section 113 penalizes resistance against law enforcement officers or persons called to their assistance; against detachments of armed authorities, or local militia or defense squads, while in the exercise of their proper functions (deprivation of liberty from fourteen days up to two years. but in case of extenuating circumstances deprivation of liberty not to exceed one year or a fine. Section 114 contains provisions on the offense of use or threat of force against governmental functionaries-the punishment is: deprivation of liberty for from three months up to five years: in case of extenuating circumstances deprivation of liberty not to exceed two years or a fine; in case of especially serious cases-deprivation of liberty for from one year up to ten years.

47 Translated from Strafgesetzbuch mit 77 Nebengesetzen. Textausgabe mit Verweisungen und Sachverzeichnis. 40th ed. (Stand: 1 April 1970). München, Beck, 1969: 72-73. 48 For the legislative history of the Third Criminal Law Reform Law of May 20, 1970, including its different drafts, see Klans Tiedemann. Strafrechtspolitik und Dogmatik in den Entwurfen zu einem dritten Strafrechtsreformgesetz. Bonn, Friedrich-Ebert-Stiftung, 1970. 23 p.

49 For details see Meinhard Hilf. "Demonstrationsfreiheit und Strassenverkehr in der Bundesrepublik Deutschland," in Max-Planck-Institut für Ausländisches Offentliches Recht und Volkerrecht, Demonstration und Strassenverkehr, Landasberichte und Rechtsvergleichung. Köln, Berlin, Carl Heymanns Verlag KG, 1970: 16-47 at 19, 40-47.

further its willingness to [commit] such acts, shall be punished by deprivation of liberty for up to three years, unless such act does not entail severer punishment under other provisions.

"(2) Insofar as the acts specified in paragraph 1, Nos. 1 [and] 2, entail punishment under Section 113, Section 113, paragraphs 3 [and] 4 shall apply, as the case may be.

"Sec. 125a.

"In especially serious cases of Section 125, the punishment shall be deprivation of liberty for from six months up to ten years. An especially serious case shall, as a rule, exist, if the perpetrator

"1. carries a firearm,

"2. carries another weapon, in order to make use of it while committing the offense,

"3. by an act of violence, puts another in danger of death or of a severe injury to body or health, or

"4. loots or causes significant damage to property not his own."

At the time the two following Sections (Secs. 126 and 127) also dealing with endangering of the public, have remained unchanged. They read as follows: "Sec. 126. Disturbance of Public Peace by Threats.

"Any person who disturbs the public peace by threatening to commit a major crime involving a common danger, shall be punished by deprivation of liberty not to exceed one year.

"Sec. 127. [Unauthorized] Armed Groups.

"(1) Anybody, who without authority, raises or commands an armed group or who provides weapons or war materiel to members of a force which he knows to have been formed without authority shall be punished by deprivation of liberty for a term not to exceed two years.

"(2) Anybody who joins such armed group, shall be punished by deprivation of liberty for a term not to exceed one year."

QUESTION 16

The German Penal Code does not contain a Section similar to Section 1105 concerning Para-Military Activities. There are no quasi-military organizations in the Federal Republic of Germany at the present time.

1. Drugs

QUESTION 17

Possession for personal use of drugs is not penalized in the Federal Republic and the same is true with respect to purchase for personal use. Only illegal trafficking in drugs is a criminal offense.

Section 367 (1) No. 3 provides that "anyone who without permission of the police manufactures, offers for sale, sells or in any other way gives to other persons poison or drugs, insofar as they may not be freely sold," shall be punished by a fine of up to 500 DMarks or with deprivation of liberty not to exceed six weeks.

Commitment to an Institution for Withdrawal Treatment of a drug addict is ordered by the Court if the conditions specified in Section 64 of the 1973 Code are present (see Answer to Question 6).

2. Gambling

The German Penal Code contains several provisions penalizing illegal gambling, which appears in the Code under the name of "game of chance." They read as follows:

"Sec. 284. [Arranging Games of Chance].

"(1) Anybody who without permission of the authorities publicly arranges or carries on a game of chance or supplies accommodations for it, shall be punished by deprivation of liberty for a term not to exceed two years, or by a fine.

"(2) Games of chance in associations or societies with restricted membership in which it is customary to arrange games of chance shall also be considered publicly arranged.

"Sec. 284a. [Participating in Games of Chance].

"Anybody who participates in a public game of chance (Sec. 284) shall be punished by deprivation of liberty for a term not to exceed six months and a fine, or by a fine only.

"Sec. 285. [Professional Gambling]

"Anybody who pursues gambling professionally shall be punished by deprivation of liberty for a term not to exceed five years and a fine; under extenuating circumstances by deprivation of liberty for a term not to exceed one year or a fine, or both.

"Sec. 285a. [Police Surveillance].

"In the cases provided for by Sections 284, 284a, and 285, police surveillance may be permitted, in addition to deprivation of liberty.

"Sec. 285b. [Confiscation].

"In the cases specified in Section 284 to 285, the appliances used for gambling and the money found on the gambling table or in the [gambling] bank shall be confiscated, if they belong to a perpetrator or an accomplice at the time of the judgment. Otherwise they may be confiscated; Section 40a shall be applicable."

Furthermore, illegal public lotteries also subject their organizers to punishment. This is provided by Section 286 of the German Penal Code which reads as follows:

"Sec. 286. [Public Lotteries].

"(1) Anybody who without the permission of the authorities organizes public lotteries, shall be punished by deprivation of liberty for a term not to exceed two years or a fine.

"(2) Publicly organized raffles of movable and immovable property shall be deemed equivalent to lotteries.

"3. Prostitution

"Promoting or facilitating prostitution are punishable under Sections 180 (Pandering), 181 (Serious Pandering), and 181a (Pimping). The punishment is deprivation of liberty not to exceed five years.

"4. Obscenity

"Causing public annoyance by lewd acts is punished by deprivation of liberty not to exceed two years (Sec. 183), while dissemination of obscene writings is punished by deprivation of liberty for up to one year and a fine, or by either of these punishments.

"5. Homosexual Activity Between Consenting Adults

"Sodomy between men is punished by deprivation of liberty for a term not to exceed five years, but the court may, in its discretion, impose no punishment upon a participant who at the time of the offense has not yet reached the age of twenty-one years (Sec. 175). Serious sodomy between men, in particular sodomy for pecuniary gain entails the punishment of deprivation of liberty for a term of from one to ten years; but in case of extenuating circumstances the punishment is deprivation of liberty from six months up to five years (Sec. 176 of the German Penal Code)."

QUESTION 18

"Sec. 311. [Endangering by Means of Explosion].

"(1) Anybody who causes an explosion, particularly by use of explosives and thereby endangers life or limb of another or another's property of significant value, shall be punished by deprivation of liberty for not less than one year.

"(2) In especially serious cases the punishment shall be deprivation of liberty for not less than five years, in less serious cases-deprivation of liberty for a term of from six months up to five years.

"(3) A case as a rule may be considered especially serious, if the perpetrator by his [criminal] act has thoughtlessly caused the death of another.

"(4) Anybody who in the cases of paragraph 1 negligently causes the danger, shall be punished by deprivation of liberty for up to five years.

“(5) Anyone who in the cases of paragraph 1 acts negligently and negligently causes the danger, shall be punished by deprivation of liberty for up to two years or a fine.

“(6) The penal provisions of the Atomic [Energy] Law shall remain unaffected.

"Sec. 311a. [Preparation of a Crime Involving Explosives].

"(1) [In the Version of the First Criminal Law Reform Law of June 25, 1969]. Anyone who, for the purpose of preparing for an act punishable under Section 311, paragraph 1, which is to be perpetrated by means of explosives,

produces, procures for himself or another, keeps, transfers to another, or imports into the territory on which this law is in effect, explosives or produces the special contrivances necessary to carry out the act, shall be punished by deprivation of liberty from six months to five years.

"(2) In less serious cases the punishment shall be deprivation of liberty for from three months up to three years.

"Sec. 311b. [Active Repentance].

"(1) [In the Version of the First Criminal Law Reform Law of June 25, 1969]. In the cases of Section 311, paragraphs 1-4, the court may mitigate, in its discretion, the punishment (Sec. 15) or abstain from [imposing] punishment under these provisions, if the perpetrator voluntarily averts the danger before serious damage occurs. Under the same preconditions the perpetrator shall not be punished under Section 311, paragraph 5. In the cases of Section 311a [the provision of] sentence 2 shall apply mutatis mutandis, if the perpetrator voluntarily abandons the further carrying out of the act, or otherwise averts the danger.

"(2) If the danger is averted without any contributing act of the perpetrator, his voluntary and earnest effort to attain such goal shall suffice."

QUESTION 19

While the Weimar Republic National Constitutional Assembly (by 153 against 128 votes) had in 1919 decided to preserve capital punishment,50 originally provided by Section 13 of the Imperial German Criminal Code, it has now been abolished by Article 102 of the Basic Law (Constitution) for the Federal Republic of Germany promulgated by the Parliamentary Council on May 23, 1949."

Of a certain interest is the following comment on the death penalty question in Germany, made by an authoritative German criminal law scholar a few years ago, inasmuch as it seems to be true also at the present time. To quote:

52

"The Penal Reform Commission witnessed long and vigorous debates on the question of capital punishment, a problem on which opinions will remain divided. Of course, in my opinion, for Germany these debates have very little practical significance. Article 102 of the Constitution provides that capital punishment is abolished, and it would require a constitutional amendment to reinstate it. It is impossible to find a two-thirds majority in Parliament for such a purpose. Strangely enough, a national plebiscite would probably result in the reintroduction of capital punishment. But the German Constitution does not permit a plebiscite. Therefore, there is absolutely no possibility for the reintroduction of capital punishment."

QUESTION 20

Despite its federal political structure, the Federal Republic of Germany does not have a dual system of states (laender) and federal courts comparable to that of the United States. Both land and federal courts are inte

50 Schmidhäuser, supra note 8 at 61.

51 For a detailed commentary to Art. 102 (historical background, legislative history and analysis of the provision within the framework of the Constitution) see Kommentar zum Bonner Grundgesetz, bearbeitet von H. J. Abraham [et al.] Hamburg, Hansischer Gildenverlag Joachim Heitmann and Co., 1950- (looseleaf): comments to Art. 102 (Zweitbearbeitung: July, 1967), p. 1-37. See also Bruno Schmidt-Bleibtreu [and] Franz Klein. Kommentar zum Grundgesetz für die Bundesrepublik Deutschland. 2nd ed. Neuwied & Berlin, Luchterhand, 1970. p. 762 [stressing the point that Art. 102 is "directly effective law" which has implicitly repealed each and all penal norms-regulations to the contrary]; Otto Model-Klaus Müller. Grundgesetz für die Bundesrepublik Deutchland, 6th ed., Köln, Heymann, 1971. p. 384; Andreas Hamann. Das Grundesetz für die Bundesrepublik Deutschland vom 23 Mai 1949. 3rd ed., Neuwied & Berlin, Luchterhand, 1970. p. 629 [stresses that by virtue of Art. 102 Germany cannot extradite to a country where death penalty against the extradited is to be expected or has already been pronounced]; G. Leibholz [and] H. J. Rinck. Grundgesetz fur die Bundesrepublik Deutschland. Kommentar an Hand der Rechtsperchung des Bundesverfassungsgerichts. 4th ed. Köln-Karienburg, Verlag Dr. Otto Schmidt KG, 1971 [on the basis of the practice of the German Constitutional Court entertaining the opposite opinion that Art. 102 does not prohibit extradition by the German Government to a country which may impose and execute the death penalty p. 7371.

52 Horst Schroder. "German Criminal Law and Its Reform," Duquesne University Law Review, v. 4, No. 1 (Fall, 1965). p. 97-113. Hereinafter quoted as Schroder, German Criminal Law.

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