A strategy is needed, not hasty decisions – Verfassungsblog – Shield Smart

On current calls for the extension of criminal law to protect the state and the constitution

At a time when we are celebrating the 75th anniversary of the proclamation of the Basic Law and the birth of the Federal Republic, there are increasing reports of internal and external threats to our state and our constitution – and where danger threatens, calls for criminal law are inevitable. Free State of Saxony introduced a bill that extends the provisions against coercion of members of constitutional bodies to local and European politicians. In addition, a type of stalking offense is to be created that criminalizes intrusions into the personal lives of officials and elected representatives, whereby the consequences of comparable actions by third parties are to be attributed to the individual stalker as grounds for criminal liability. Almost at the same time, the Free State of Bavaria presented a draft law that is directed against the “manipulation of public opinion” and the resulting threat to our democracy through a new phenomenon: the spread of deep fakes.

The proposals have a number of features that are typical of today's criminal policy: They react to individual phenomena that are considered threatening with symbolic increases in penalties (coercion qualifications) or small-scale, case-specific changes to the law to close legal loopholes (deep fakes, political stalking). The fact that two state governments have drawn up independent proposals suggests that the projects are not based on an overall strategy based on a comprehensive risk analysis. As a result, only a portion of the hybrid risks that arise from hard-to-reach source areas abroad and digital spaces are addressed.

From individual law to overall strategy

A look at the largely forgotten lines of development in criminal law on state security calls for a different strategy. Experience over the last few decades has shown very clearly that the approach of reacting to individual phenomena with ever new individual offenses is not successful: such offenses always reflect only individual, more precisely defined directions of attack identified in the past, but cannot anticipate the perpetrators' changes in strategy. New offenses therefore always come too late. This problem cannot be remedied with open-ended, interpretable offenses: unlike in the early days of the Federal Republic, when Interior Minister Höcherl still believed that in state security you could not “walk around all day with the constitution under your arm,” the principle of guilt and the principle of certainty are now clearly defined and place strict limits on this strategy.

Adapting criminal law to protect the state to new threats must therefore not be limited to the creation of further individual laws, but requires a thoroughly prepared reform, as was common in previous decades. However, it should become clear that criminal law today cannot play an exclusive, or even a primary, role in protecting the state, its institutions and representatives: the proposed increases in the penalty range only provide symbolic impetus at best. Deep fakes are best countered with stricter regulation of social networks; the adjustment of the Network Enforcement Act proposed by Bavaria can only be a first step here. Above all, however, the financing channels, which often extend abroad, must be clarified and the financial flows cut off, for which the European Union's sanctions law should be used more extensively.

Matter in constant motion

The protection of state and constitution in criminal law is the title and subject of the habilitation thesis of the recently deceased criminal law professor Friedrich-Christian SchroederThe work was written in the mid-1960s, but was not published until 1970. Around three decades after the Basic Law came into force and the Federal Republic was founded, there was not only a current reason to investigate the question of whether and how criminal law can and should protect the constitution and its state. In fact, the subject matter was in such flux that the book needed updating after the completion of the habilitation process. In fact, state security criminal law was in constant flux in the early phase of the Bonn Republic. the First Criminal Law Amendment Actwhich the German Bundestag passed in 1951, was nothing other than a comprehensive package to protect the still young, unstable Federal Republic during the Cold War. In addition to classics such as high treason, it also contained offenses borrowed from the Weimar Republic's state security law, as well as highly controversial provisions such as the under-determined treason against the constitution and penal provisions on the import of writings or recordings containing treasonous content or directed against the existence of the Federal Republic. Penitentiary sentence was threatened for anyone who committed an attack on the life or limb of the Federal President; prison for those who misused state symbols. This far-reaching criminalization was matched by an extensive jurisprudence that was widespread until the early 1960s, which subordinated the requirement of certainty to the need to react to the “changing attack tactics of the enemy” (BGHSt 15, 167 [172]). This brought the criminal law on state security into the focus of critics, who complained that the reform of 1951 had turned out to be a “snake egg” (Adolf Arndt) which has given rise to an illiberal legal practice (see GosewinkelAdolf Arndt, 1991, p. 394 ff.). Even the Attorney General Max Güde criticized the breadth and vagueness of some criminal offenses related to state security. At a time when the Federal Republic had gained a firmer footing and the Cold War had lost its worst terror, legal scholarship began to take civil rights seriously and to question the far-reaching protection provided by the state and the constitution.

Basic principles of a liberal state security criminal law

Schroeder had to defend the criminal law of state protection against those who denied its “belonging” to a legitimate criminal law and dismissed the matter as “political criminal law” for the assertion of power. These accusations, according to Schroederwere based on the outdated opposition between state and society. Schroeder the liberal view that the state is the product of society and that there is no “priority of the state” over society (Paul Nolte). He used this argument, dressed up as a republican, to defend the state security criminal law, which is considered conservative. And rightly so: Because if the sentence “We are the State“ is true, the criminal law for the protection of the state ultimately protects us, the citizens. The second characteristic of a liberal criminal law for the protection of the state was Schroeder the principle of guilt. This not only excludes excessively long sentences as disguised security measures against dangerous people, but also blocks the attribution of criminal liability for acts for which third parties alone are responsible. And finally, Schroeder for precise and therefore narrowly defined offenses that penalize more precisely defined injustice and do not address diffuse dangers.

The Criminal Code as a reflection of previous threats to the state and the constitution

These maxims have been regularly put to the test in recent decades. The peak of RAF terrorism brought about changes to criminal and criminal procedural law that are still controversial today. In response to the Islamist terrorism of the 2000s, the legislature created offenses tailored to individual perpetrators and regulations that countered the support of foreign terrorist organizations. Quite a few of these offenses are so broadly defined that they require a narrow interpretation in order to distinguish injustice from socially acceptable behavior or criminal injustice from police-related danger (KubicielThe Science of the Special Part of Criminal Law, 2013, p. 227 ff.). Nevertheless, all of these offenses remain related to contemporary phenomena and reflect – like the criminal law on state security as a whole – the various manifestations of previous threats to the Federal Republic: from the Eastern agitator who undermines the “duty-based willingness” of Bundeswehr soldiers to protect the Federal Republic (Section 89 of the Criminal Code), to the terrorist organization of the 1970s and 1980s with its supporters (Section 129a of the Criminal Code) to the “lone wolves” of the 9/11 era who prepare crimes endangering the state, or people who collect money for foreign terrorist organizations or travel to join the Islamic State (Sections 89a ff. of the Criminal Code).

What should I do?

History does not repeat itself, but we can learn from it. The development of criminal law on state security shows that since the 1970s, legislators have only made isolated adjustments to reflect current events, whereas in the 1960s, major reforms were always carried out on the basis of comprehensive (parliamentary) consultation. If this strategy of focusing on individual aspects continues, there is a risk of losing sight of threats that are less obvious but far more dangerous than the spread of deep fakes or the stalking of politicians. Another lesson to be learned from history is that increasing the range of sentences has no (measurable) preventive effect. Adding new qualification provisions to the offenses of assault that cover acts against politicians or election workers is unlikely to deter those inclined to commit the offense, nor is extending Sections 105 et seq. of the Criminal Code (coercion of constitutional bodies and their members) to local and European politicians: coercion and bodily harm are already punishable; Qualifications can therefore at best symbolically mark additional injustice, but not prevent it. The history of state security criminal law teaches us not only what not functions, but can – at least in part – also function as a quarry for ideas, especially since this legal matter by no means only followed illiberal paths, as Schroeder Some provisions could certainly be converted into a modern and constitutionally appropriate form, falls there is an actual need for them and they fit into an overall strategy.

However, this overall strategy must inevitably include more than just the continuation of criminal law. A regulation of social networks that deserves its name has already been mentioned. Regardless of this, anyone who tightens up substantive criminal law must always take criminal proceedings into account and, for example, expand the possibilities for securing evidence in digital spaces (keyword: IP addresses). If this is not desired or feasible for political reasons, criminal offenses are unlikely to have a repressive effect from the outset. The law on the application of criminal offenses and the limited prospects of success of international legal assistance in the case of political offenses must also be considered. Both of these can make a change in strategy necessary. If, for example, one wants to deprive foreign powers of their domestic influence that endangers the state and the constitution, the financing of their domestic helpers should be prevented. Seen in this light, the creation of an offense against the impermissible representation of interests (Section 108f of the Criminal Code) also serves to protect against political influence from abroad (so-called strategic corruption). Further, not necessarily criminal, steps, such as those under the European Union’s sanctions law, should follow, if With the help of experts from the Office for the Protection of the Constitution and the intelligence services, clarity has been established about the direction that state security law must take in order to meet the threats of our time. In other words: a strategy is needed, not hasty decisions.

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