Charge of Coercion, Section 240 StGB

Received a Police Summons for Alleged Coercion

Should you have received a police summons for coercion, it is essential to refrain from hasty actions. You should remain calm and, in particular, not comply with the summons for an interrogation as an accused person by the police without prior legal consultation. As an accused person in preliminary proceedings for coercion under Section 240 StGB, you are not obliged to make any statements to the police. Whether it may be advisable in your specific case to comply with the summons can be reviewed by a criminal defense lawyer. The criminal offense of coercion can occur in a wide variety of case constellations. While there may be situations that do not obviously suggest criminal liability for the perpetrator due to coercion, and the offense of coercion can thus sometimes acquire the stigma of a minor offense, there are extreme cases – such as the threat to kill another person’s child – where the criminally punishable conduct is immediately obvious to everyone. These highly diverse case constellations can be variably addressed by the penalty framework for coercion, which ranges from a fine to three years imprisonment. As experienced criminal defense lawyers, we will assist you if you are accused of criminal liability for coercion. After an initial legal assessment and fundamental consultation, we will gladly develop a tailored defense strategy for you if action is required.

The Elements of Section 240 StGB

The objective elements of Section 240 (1) StGB essentially consist of a suitable act of coercion – in the form of violence or the threat of a significant evil – and a coercive outcome. Subjectively, the elements of Section 240 (1) StGB require intentional action. The unlawfulness is particularly noteworthy in the context of the offense of coercion: unlike the general rule, where a criminal offense is generally unlawfully committed unless there are grounds for justification, the unlawfulness of coercion must be positively established through a reprehensibility test. Finally, coercion can be committed in the form of a particularly serious case. Such a case generally exists if the perpetrator coerces a pregnant woman into an abortion or abuses their powers or position as a public official, Section 240 (4) Sentence 2 No. 1 and No. 2 StGB. The criminal offense of coercion protects an individual’s freedom of will formation and freedom of will exercise.

The Objective Elements of Section 240 (1) StGB

According to Section 240 (1) StGB, whoever unlawfully coerces another person to perform an act, tolerate something, or refrain from something, by means of violence or by threatening a significant evil, shall be punished with imprisonment for up to three years or with a fine. The object of the offense – another person – must therefore be motivated to a coercive outcome by a means of coercion.

The Means of Coercion under Section 240 (1) StGB – Violence or Threat of a Significant Evil

The concept of violence, which is controversial in detail within the framework of Section 240 (1) StGB, essentially requires physically acting violence, which can be implemented in the form of vis absoluta (violence that excludes will, making the formation and exercise of will impossible for a victim) or vis compulsiva (violence that bends will, directing the victim’s exercise of will). The necessary physical component means that acts of compulsion that are purely psychological (e.g., online demonstrations) are not covered by the concept of violence in Section 240 (1) StGB. Depending on the specific case, violence by omission, against third parties, or against property can also constitute the offense. Likewise, the means of coercion involving the threat of a significant evil – which can also be committed by omission – can be used in a very diverse manner. A threat means the prospect of a future evil, the occurrence of which the perpetrator attributes influence to themselves or claims to have. An evil represents any disadvantage or loss. The evil is significant if, viewed objectively and considering the victim’s personal circumstances, it is capable of inducing a reasonable person to the behavior desired by the threat. In this respect, the victim can be expected to show a certain resilience “in prudent self-assertion”. A threatened evil can also be significant if it does not involve threatening a criminal act. Conversely, not every threat of a criminal act automatically fulfills the elements of coercion; it must always be related to the purpose pursued in the individual case. Examples considered to constitute the offense include threatening to terrorize someone with considerable noise or to infect them with AIDS. The mere announcement of a complaint to supervisory authorities or the prospect of further official difficulties is not considered sufficient.

The result of coercion under Section 240 (1) of the German Criminal Code (StGB) – action, acquiescence, or omission

The means of coercion, whether violence or the threat of a significant evil, must result in a coercive outcome in the form of an extorted act, toleration, or omission. A certain independence between the means of coercion and the coercive outcome is necessary. This requires that the desired act, toleration, or omission must go beyond the impairment directly associated with the exercise of force. For example, it is not sufficient to see the coercive outcome merely in the toleration of the compulsion associated with bodily harm. Furthermore, there must be a causal link between the coercive outcome and the act of coercion.

The Subjective Elements of Section 240 StGB

Coercion is an intentional offense. Therefore, for the offense to be committed, the perpetrator must act with at least conditional intent regarding the realization of the objective elements of the offense.

The Reprehensibility of Coercion, Section 240 (2) StGB

According to Section 240 (2) StGB, coercion is unlawful if the use of violence or the threat of evil is to be considered reprehensible for the intended purpose. This regulation represents a significant deviation from the basic structure of criminal law. Unlike usual, the unlawfulness of the act is not presumed if no grounds for justification exist. Rather, the unlawfulness of coercion must be positively established through a reprehensibility test to limit criminal liability given the broad range of possible threats of significant evil and to safeguard the constitutionally protected general freedom of action of the individual. The standard for the reprehensibility of coercion, as evident from the wording of Section 240 (2) StGB, is the relationship between the means of coercion and the purpose of coercion. Both components are related to each other, and on this basis, the (absence of) unlawfulness of the coercion is determined. This not only leads to a field strongly shaped by case-by-case jurisprudence but also to legal-dogmatic and legal-political questions, for example, regarding the consideration of long-term goals (such as climate protection) or the potential lawfulness of demonstrations given their constitutional protection under Article 5 and Article 8 of the Basic Law, which find their place within the reprehensibility test of coercion. It is evident that the significant argumentative potential and the necessity of a precise case-by-case assessment offer an ideal starting point for experienced criminal defense lawyers to challenge a sufficient suspicion of criminal liability for coercion.

The Particularly Serious Cases of Coercion, Section 240 (4) StGB

Finally, the offense of coercion can also be committed in the form of a particularly serious case. A particularly serious case generally exists according to Section 240 (4) Sentence 2 StGB if the perpetrator

1. 1. coerces a pregnant woman into an abortion or
   2. abuses their authority or position as a public official.

The fact that coercion to abortion has been enshrined as a particularly serious case of coercion primarily serves the purpose of mitigating the protection of pregnant women against unreasonable pressure from their social environment. In this context, threatening to violate maintenance obligations would be particularly punishable. In contrast, an abuse of authority by a public official (Section 11 (1) No. 2 StGB) is to be assumed if the public official, acting within their competencies, makes use of them in a manner contrary to duty or law. An abuse of position already exists in the assumption of powers not belonging to the perpetrator, in order to use them as a means of coercion to achieve a specific coercive outcome.

Possible Penalties in Case of Conviction for Coercion

Coercion according to Section 240 (1) StGB is punishable with a fine or imprisonment for up to three years. According to Section 240 (3) StGB, the attempt is also punishable. The particularly serious case of coercion under Section 240 (4) Sentence 2 StGB can be considered at the sentencing level by increasing the penalty framework in relation to the regular penalty framework: According to Section 240 (4) Sentence 1 StGB, the term of imprisonment in particularly serious cases varies from six months to five years. Even with the offense of coercion, the specific sentence imposed is significantly case-dependent. In addition to the circumstances of the offense, any previous convictions of the perpetrator have a considerable influence on the severity of the penalty. Furthermore, there is the possibility of an entry in the certificate of good conduct. Generally, fines of more than 90 daily rates or prison sentences of more than three months are recorded, provided no other penalties are entered. Since many employers require the submission of a certificate of good conduct, as criminal defense lawyers, we place particular emphasis on ideally keeping the sentence below the limit of 90 daily rates.

Do I Need a Lawyer?

To counteract a higher penalty or, in the best case, to prevent a conviction, you, as an accused person in criminal proceedings for coercion, should be accompanied by a specialized lawyer. Depending on the specific case, criminal liability for coercion can trigger severe sanctions. Our task is to advise you as best as possible and to avoid these consequences if possible.