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26Part of the Criminal Code of Germany, protecting the honor and dignity of a person in the criminal law order. Bibliography
1. Wessels J./Hettinger М. Strafgesetzbuch. BT. Rdn. 302. München, 2017.
2. Serebrennikovа A. V. Criminal law of Germany. Textbook. M., 2019.
3. Joecks W. Strafgesetzbuch. Studienkommentar. München, 2017. S. 415.
© Serebrennikova A.V., 2019
UDC 343.3/.7
Serebrennikova A. V. Doctor of law, Professor of criminal law and criminology Moscow state University. M. V. Lomonosov
Russia, Moscow DOI: 10.24411/2520-6990-2019-10102 CRIMINAL ACTS AGAINST PERSONAL FREEDOM UNDER THE CRIMINAL CODE OF
GERMANY.
Abstract
The author's attention is paid to criminal acts against personal freedom under the German law ofpersuasion, which are punishable under Section 19 of the Special part of the act, directly infringing on public relations, ensuring the right of a person to move arbitrarily and determine his location, unless otherwise expressly provided by law. The legal benefit protected by these norms is the personal freedom of the person in its various manifestations (freedom of decision-making, freedom of movement, freedom of will of the victim, freedom of implementation of his decision). In Satya describes the characteristics of these compositions pre stupnik acts, provides the relevant statistics.
Keywords: Germany, criminal law, criminal code, criminal dénia against personal freedom.
The element of the system of criminal acts against the person, provided for by the Criminal Code of Germany, is criminal encroachment against personal freedom. They are provided in section 18 of the Special Part of the Criminal Code of Germany, which bears the same name.
This group of criminal offenses includes those acts that infringe either on individual freedom or on other law-enforcement values along with individual freedom. [1] Criminal acts against personal liberty include abduction of a person (§ 234), abduction of minors (§ 235), unlawful deprivation of liberty (§ 239), coercion (§ 240) and taking under suspicion for political reasons (§ 241).
It should be noted that the freedom of the individual is protected not only by the norms of this section, but also by the norms located in other sections of the Special Part (for example, the norms on criminal acts against gender self-determination (§ 174 et al.), against property and the norms on property criminal acts (§249 et al.), in which personal freedom is protected along with other law-enforcement benefits).
The legal good protected by these norms is the personal freedom of a person in its various manifestations (freedom of decision making, freedom of movement, freedom of volitional activity of the victim, freedom to implement own decision).
The main part of the section in question of the Special Part of the Criminal Code of Germany is § 239, establishing criminal liability for unlawful deprivation of liberty. This provision was partially amended by the Sixth Law on the Reform of Criminal Law of January 26, 1998. The § 239 protected legal benefit is the personal freedom of movement of a person. At the same
time, free will is the ability of a person to leave the person's place of stay and return there.
The basic structure of the considered criminal act is provided for in indent 1: "He who locks a person or otherwise deprives him of his liberty shall be punished with imprisonment of up to five years or a fine."
The victim of this criminal act can be any person who is able to move naturally, either with the help of equipment designed for this purpose, such as crutches or a wheelchair, or with the help of someone else's help. The decisive condition for the qualification of the actions of the accused in this provision is that the victim is locked against own will in the place where the victim does not want to be. [2]
Such a feature as locking is understood by the doctrine and court practice more broadly than simple closure with a key. These can be any means designed to prevent the victim from freedom of movement, or preventing the victim from leaving the room where the victim does not want to be (for example, locking a person in any room or vehicle, preventing the victim from going out by setting up dogs, etc.). Depriving of liberty otherwise involves any other means, for example, tying to furniture, etc.
In the criminal law doctrine of the Federal Republic of Germany, it is debatable whether a guilty constitutes a composition of the criminal act, provided for by this norm, if a guilty performs actions against a person who does not have free will or realization of will at the time of committing a criminal act (for example, deeply intoxicated). It seems that the answer should be negative. This composition of the criminal act is missing, in our opinion, in the following situation. A "guilty" locks his girlfriend in the bedroom. Returning an hour later,
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he discovers that the girlfriend is still lying in bed, not noticing that she was locked.
The indent 2 of § 239 in the new wording provides for the punishability of the attempt.
Qualified types of unlawful deprivation of liberty are provided for in indent 3 and indent 4 of § 239. Aggravating circumstances are associated with consequences, i.e. with the actual results of deprivation of liberty, and occur in cases where:
1) it lasts more than one week or
2) the health of a person deprived of liberty is seriously injured (indent 3);
3) death is caused to the victim (indent 4).
In the latter case, the death of the victim may occur because of the victim's escape from the place where the victim was, and in the case of the victim's suicide.
In all three cases, the intent of the subject of a criminal act should cover the performance of actions provided for by the basic composition (indent 1), and for the above consequences there should be an imprudent form of guilt. However, in the doctrine of the German criminal law, this view is not shared by all. Some lawyers believe that intent should be also in relation to the duration of imprisonment. [3] In our opinion, the point of view that, with respect to the above consequences, there should be an imprudent form of guilt seems to be more substantiated.
Of the above compositions of criminal acts, an interesting one is the one provided for in § 240, which protects the personal freedom of decision-making and its implementation [4] (freedom of will formation and realization of the will), and, above all, is understood as forcing to performing or non-performing of any actions. And this criminal encroachment within the meaning of § 240 of the Criminal Code of Germany is aimed only at restricting personal freedom, and in no case encroaches on any material wealth. This point of view is debatable, because in a certain situation, the victim may be forced to perform actions of a property nature.
A victim may be one or more individuals who have the ability to free will and the freedom to exercise town will. According to a number of representatives of the German criminal law doctrine, they can be children, people who are intoxicated, mentally ill, but cannot be people who are unconscious. [5]
The paragraph 240 is worded as follows: "Whoever by force or the threat of causing significant harm unlawfully forces another person to commit an action, to allowing an action or to inaction, is punished with imprisonment of up to three years or a fine". This provision has a wide practical application. For example, in 2000, 37891 cases of coercion were reported. [6]
Most representatives of the German criminal law doctrine understand violence as any means aimed at overcoming the actual or expected resistance of the victim, if this violence consists primarily in physical or mental coercion through the use of force or other actions that by their nature, intensity and the method of influence are aimed at depriving the victim of liberty or restricting it. This point of view is debatable. Modern judicial practice and doctrine are inclined to the point of view, according to which in this case we can talk about a situation where the victim is forced to sit in a
certain place, for example, in a chair, without applying direct violence or threat of causing significant harm to the victim, however, demonstrating to the victim the determination to apply this in case of disobedience of the victim. In our opinion, we should agree with this point of view.
Debatable is the question of whether there is allowed the use of violence or the threat of causing significant harm, not only in relation to the victim, but the victim's family, relatives and others. We prefer the view that the use of violence or the threat of significant harm is allowed not only in relation to the victim.
There must be a causal relationship between the use of coercive means and the occurrence of the above result. Otherwise, the composition of the criminal act provided by § 240 is missing.
There should be paid attention to indent 2 of § 240, which states that "an act is unlawful if the use of force or the threat of harm to achieve this goal is reprehensible." This specific wording imposes on the court the obligation to further evaluate the "untruth", which is characteristic of the traditions of German criminal law. The judicial practice of the Federal Republic of Germany proceeds from the fact that reprehensibility implies a higher degree of moral condemnation of this behavior. [7]
The Sixth Law on the Reform of Criminal Law expanded the list of especially serious cases of coercion (indent 4). This norm does not contain a qualified type of the composition of this criminal act, but is the rule for determining the size of the punishment (Strafzumessungsregel). The indent 4 is now formulated as follows:
"A particularly serious case, as a rule, occurs if the person
1. forces another person to engage in sexual activities
2. forces a pregnant woman to abort pregnancy
3. abuses own authority or official position, as an official ".
The second group of criminal acts provided for in Section 18 of the Special Part of the Criminal Code of the Federal Republic of Germany consists of such elements as kidnapping (§ 234); forced deportation of people outside the country (§ 234a); abduction of minors (§ 235); child trafficking (§ 236); stagking (§ 239b). The compositions of the abduction of a woman with her consent (§ 236) and the abduction of a woman against her will (§ 237) were excluded from the Criminal Code by the Sixth Law on Reform of Criminal Law due to the fact that for a long time they were not used by judicial practice and lost their significance.
Criminal responsibility for abduction of a person is provided for in indent 234. This composition is formulated as follows: "The one who, using violence, the threat of causing significant harm or deception, kidnaps a person in order to put this person in a helpless position, put this person in slavery or serfdom or deliver this person to the military or a similar organization abroad, shall be punished with imprisonment for at least one year."
The legal benefits protected by this indent are the personal rights of the victim, first the person's personal
freedom. The rule in question is special in relation to § 239, which establishes criminal liability for unlawful deprivation of liberty. Obligatory features of the considered composition are the method of its performance and purpose. It should be noted that such a feature of composition as a target orientation was clarified by the Sixth Law on Criminal Law Reform as follows: the term existing in the previous revision "deliver for participation in hostilities or service on a ship abroad" was replaced with "deliver to military or similar organization abroad." In this regard, the judicial practice of the Federal Republic of Germany received the possibility of a broad interpretation of this feature, which, in our opinion, seems quite reasonable, since now this composition covers the cases of the corresponding service in peacetime.
The indent 2 of the paragraph in question is the norm regarding the determination of the amount of punishment. This indent establishes that in less serious cases, the punishment is imprisonment for a period of six months to five years. The presence of this feature is assessed by the court, based on the specific circumstances of the case related to the abduction of a person.
An attempt on this criminal act is punishable, because it is a crime.
The prescriptions of § 234a, which establishes criminal responsibility for the violent hijacking of people outside the country, also protect the freedom of movement of a person, which is the basic right of a citizen, proclaimed in art. 11 of the Basic Law of Germany 1949.
With the help of the Sixth Law on the Reform of Criminal Law, a new edition of § 235 was adopted (abduction of minors). At the same time, the German legislator proceeded from the fact that § 235 in the old edition left unpunishable the kidnapping of infants and toddlers (for example, from an abandoned stroller or parents' apartment), [8] because in relation to them it was impossible to use such a method of abduction as the use of deception or threat, because the child, because of the child's age, could not understand the acts committed with the child. And a definite method of execution was an obligatory feature of this composition. Therefore, due to the absence of such a necessary attribute of the composition, as a method of execution, this composition of the criminal act could not be carried out. The Sixth Criminal Law Reform Act has eliminated this gap.
In indent 3 of § 235 there was established the punishability of the attempt. This eliminated the contradiction in the system of values protected by the Criminal Code of Germany. It consisted in the fact that prior to the adoption of the Sixth Law on the Reform of Criminal Law under the norms of the German Criminal Code; an attempt on theft of a baby carriage was punished, but not an attempt on theft of a baby lying in this carriage. At present, this provision protects in a criminal procedure the free exercise of the rights of parents, guardian or custodian to take care of a person who is under the age of eighteen. This right of parents, guardian and custodian includes, above all, their rights to educate the
minor, to supervise the minor and determine the minor's place of residence and location.
The indent 236 (trafficking of children) was introduced by the Sixth Criminal Law Reform Act. Indent 1, Sentence 1 of this provision provides for criminal liability for transferring to another person an own child who has not attained the age of fourteen, if the person acts, grossly neglecting the duties of custody and upbringing, for remuneration or for enrichment. This provision threatens the punishment of an action expressed in the adoption of a child for money. The German legislator does not indicate the purpose of such actions.
The indent 2 of this indent provides for liability for actions related to the illegal adoption or long-term keeping of a child under the age of eighteen.
The German Criminal Code specifically formulated the composition of the stalking (§ 239b), which is related to the abduction of a person for the purpose of extortion (§ 239a). On the objective side, these two compositions consist of the abduction of another person by any means or the seizure of another person. However, the goal of extortion (§ 253) when stalking should be absent. When qualifying the actions of the perpetrator under § 239b, the features of kidnapping or seizure of a person must be established, "in order to force a third person to commit an action, allow an action or inaction by threatening death or causing serious harm to the hostage (§ 226) or by imprisoning a hostage for more than one week, or if the guilty person uses the position of another person created by such an act for such coercion."
According to police crime statistics, in 2016, 196560 criminal acts against personal freedom were registered in the Federal Republic of Germany.[9]
Such is the characteristic of individual compositions of criminal acts infringing on personal freedom and freedom of movement. They are protected in the criminal law by the rules of section 18 of the Special Part of the Criminal Code of Germany.
Bibliography
1. Wessels J./Hettinger M. Strafgesetzbuch. BT. Rdn. 365. München, 2017.
2. BGBl. S. 32, 187
3. Serebrennikova A. V. Criminal law of Germany. Textbook. M., 2019.
4. See, for example, Tröndle H./ Fischer T. Strafgesetzbuch und Nebengesetze. 52. Aufl. München, 2008.§ 239. Rdn. 15.
5. BVerfGE 73, 237.
6. Joecks W. Strafgesetzbuch. Studienkommentar. München, 2017. S. 457.
7. The statistical data is given according to Joecks W. Op. cit. S. 456.
8. BGHSt 17, 331.
0.The statistical data is given according to: Polizeiliche Kriminalstatistik Bundesrepublik Deutschland. Berichtsjahr 2017. Wiesbaden, 2018.
© Serebrennikova A.V., 2019
