Reform Strafgesetzbuch

The reform of the penal code: an overview

Now the time has come: on 23 November 2020, the Federal Ministry of Justice under Marco Busch­mann (FDP) published a key issues paper on the planned moder­ni­sa­tion of the Criminal Code, which had been announced some time ago.

Back in March, the federal govern­ment presented a draft bill “to revise the law on sanc­tions”, which dealt with issues rela­ting to certain legal conse­quences.

Speci­fi­cally, it dealt with the shor­tening of the so-called substi­tute custo­dial sentence (substi­tute term of impri­son­ment is halved) as well as the possi­bi­li­ties of a thera­peutic instruc­tion as part of a suspended sentence (Section 56c StGB), a warning with reser­va­tion of punish­ment (Section 59a StGB) and a discon­ti­nua­tion of procee­dings in accordance with Section 153a StPO.

Further­more, the inten­tion was to tighten the requi­re­ments for place­ment in a detention centre (Section 64 StGB) and to expli­citly include “gender-specific” and “anti-sexual orien­ta­tion” motives for the offence as senten­cing criteria in Section 46 (2) sentence 2 StGB.

Even at this early stage, the Federal Minister of Justice announced that not only would changes be made to the possible legal conse­quences, but that some offences would also be removed from the Criminal Code altog­e­ther or modi­fied.

The focus here is to be on offences which, in the opinion of the Ministry, are histo­ri­cally outdated or no longer tenable for reasons of criminal policy due to their low prac­tical rele­vance or their wording.

In this respect, the offence of “viola­tion of offi­cial announce­ments” pursuant to Section 134 of the German Criminal Code (StGB) is to be deleted without repla­ce­ment — in view of the fact that there are hardly any analogue “bulletin boards” these days from which offi­cial announce­ments could be torn down, this dele­tion seems long overdue.

Simi­larly insi­gni­fi­cant are the unaut­ho­rised use of pledged property (Section 290 StGB), endan­ge­ring a with­drawal cure (Section 323b StGB) and the misuse of cheque cards (Section 266b (1) Var. 1 StGB), which is why these should also be deleted from the StGB without repla­ce­ment.

The offence of unaut­ho­rised removal from the scene of an acci­dent anchored in Section 142 StGB is to be amended, which is also based on moder­ni­sa­tion efforts: If only property damage (and no personal injury) is caused in a road traffic acci­dent, a modern and more prac­ti­cable option for reporting the neces­sary infor­ma­tion digi­tally is to be intro­duced as an alter­na­tive to the exis­ting duty to wait.

For criminal policy reasons, the criminal offences of enga­ging in prosti­tu­tion in rest­ricted areas (Section 184f StGB) and frau­du­lently obtai­ning services in the form of “fare evasion” (Section 265a (1) Var. 3 StGB) are to be replaced by admi­nis­tra­tive offences. The wrongful­ness of these offences is so low that they should no longer be punis­hable.

Unaut­ho­rised gambling (Sections 284 et seq. StGB), which can already be punished as an admi­nis­tra­tive offence and, in the event of criminal conduct, is also covered by offences such as fraud (Section 263 StGB) and tax evasion (Section 370 AO), is also to be removed from the Criminal Code due to the lack of its own specific viola­tion of legal inte­rests.

The unlawful coll­ec­tion of fees (Section 352 StGB), which previously repre­sented a privi­lege for certain profes­sional groups (such as lawyers, nota­ries or bailiffs) compared to fraud (Section 263 StGB), is also to be removed from the StGB for legal policy reasons.

The offence of robbery against drivers (Section 316a StGB), which carries an extre­mely high penalty of at least five years’ impri­son­ment, stems from National Socia­list legis­la­tion and, in the opinion of the Federal Ministry of Justice, is also not suffi­ci­ently legi­ti­mised in terms of criminal policy — in future, such offences are to be prose­cuted exclu­si­vely under the offences of robbery or extor­tion (Sections 249 et seq. StGB).

The provi­sions on murder, mans­laughter and the lesser offence of mans­laughter (Sections 211–213 StGB) mainly date back to 1941 and describe the perpe­trator as a “murderer” or “mans­layer”. Such a desi­gna­tion comes from the so-called “offender type theory”, which was parti­cu­larly popular under National Socia­lism, but no longer plays a role today. For this reason, the language of the stan­dards should be adapted.

Last but not least, the busi­ness-like promo­tion of suicide (Section 217 StGB) and the depri­va­tion of minors (Section 235 StGB) must be deleted or their content adapted on the basis of supreme court rulings by the Federal Consti­tu­tional Court and the Euro­pean Court of Justice (ECJ).

The key issues paper must now be fina­lised in a draft bill in the near future, which must then successfully pass through the legis­la­tive process. It is ther­e­fore likely to be some time before the reform actually comes into force.

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