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The focus here is to be on offences which, in the opinion of the Ministry, are historically outdated or no longer tenable for reasons of criminal policy due to their low practical relevance or their wording.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