The time has come: On November 23, 2023, the Federal Ministry of Justice under Marco Buschmann (FDP) published a long-announced key points paper on the planned modernization of the Criminal Code.
As early as March, the Federal Government presented a draft bill “on the revision of the law on sanctions,” which addressed issues regarding certain legal consequences.
Specifically, it concerned the reduction of the so-called substitute imprisonment (substitute imprisonment is halved) as well as the possibilities of a therapy order within the framework of a suspended sentence (§ 56c StGB), a warning with a suspended sentence (§ 59a StGB), and a dismissal of proceedings under § 153a StPO.
Furthermore, the intention was to narrow the requirements for placement in a detoxification center (§ 64 StGB) and to explicitly include “gender-specific” and “directed against sexual orientation” motives as sentencing factors in § 46 (2) sentence 2 StGB.
Even then, the Federal Minister of Justice announced that not only would there be changes regarding possible legal consequences, but several criminal offenses would also be completely removed from the StGB or modified.
The focus is to be on offenses that, in the Ministry’s view, are historically outdated due to their low practical relevance or their wording, or are no longer tenable for reasons of criminal policy.
In this respect, the criminal offense of “violation of official notices” under § 134 StGB is to be abolished without replacement—against the background of the fact that there are hardly any analog “bulletin boards” left today from which official notices could be torn down, this deletion seems long overdue.
Similarly insignificant are the unauthorized use of pledged items (§ 290 StGB), the endangerment of a detoxification treatment (§ 323b StGB), and the abuse of check cards (§ 266b (1) var. 1 StGB), which is why these are also to be removed from the StGB without replacement.
An adjustment, also based on modernization efforts, is to be made to the criminal offense of unauthorized departure from the scene of an accident anchored in § 142 StGB: If a traffic accident only causes property damage (and no personal injury), a modern and more practical option for digital reporting of the necessary information is to be established as an alternative to the previous duty to wait.
For reasons of criminal policy, the criminal offenses of practicing prostitution in restricted areas (§ 184f StGB) and obtaining services by deception in the form of so-called “fare evasion“ (§ 265a (1) var. 3 StGB) are to be replaced by administrative offenses. The degree of wrongdoing in these offenses is said to be so low that they should no longer be punishable by criminal law.
So-called unauthorized gambling (§§ 284 et seq. StGB), which can already be punished as an administrative offense today and is additionally covered by offenses such as fraud (§ 263 StGB) and tax evasion (§ 370 AO) in the event of criminal behavior, is also to be removed from the Criminal Code due to the lack of its own specific violation of a legal interest.
The unlawful collection of fees (§ 352 StGB), which previously represented a privilege over fraud (§ 263 StGB) for certain professional groups (such as lawyers, notaries, or bailiffs), is also to be removed from the StGB for legal policy reasons.
The criminal offense of predatory attack on motorists (§ 316a StGB), which is sanctioned with an extremely high penalty of at least five years’ imprisonment, originates from National Socialist legislation and, in the view of the Federal Ministry of Justice, is also not sufficiently legitimized in terms of criminal policy—such crimes are to be prosecuted in the future exclusively via the offenses of robbery or extortion (§§ 249 et seq. StGB).
The provisions on murder, manslaughter, and less serious cases of manslaughter (§§ 211-213 StGB) date mainly from 1941 and describe the perpetrator as a “murderer” or “manslaughterer.” Such a designation comes from the so-called “theory of perpetrator types,” which was particularly popular during the National Socialist era but no longer plays a role today. For this reason, a linguistic adaptation of the norms is to take place.
Finally, the commercial promotion of suicide (§ 217 StGB) and the abduction of minors (§ 235 StGB) must be deleted or adapted in terms of content due to supreme court rulings by the Federal Constitutional Court and the European Court of Justice (ECJ).
The key points paper must now be formulated into a draft bill in the near future, which must then successfully pass through the legislative process. It will therefore likely take some time before the reform actually comes into force.