Was the FDR court a criminal offense

Crime and Criminal Law

Heribert Ostendorf

Prof. Dr. Heribert Ostendorf, born in 1945, worked as a judge for four and a half years after completing his studies, primarily as a juvenile judge. He then taught for eight years as a professor of criminal law at the University of Hamburg. From 1989 to 1997 he was Attorney General in Schleswig-Holstein. From October 1997 to February 2013 he headed the research center for juvenile criminal law and crime prevention at the Christian-Albrechts-Universität zu Kiel.
In addition to textbooks and legal commentaries, Professor Ostendorf has published numerous scientific treatises, especially on juvenile criminal law. His textbook "Juvenile Criminal Law" and his commentary "Juvenile Courts Act" have been published in the 9th and 10th edition and are considered standard works.

Various principles of criminal law have been developed throughout history. They stipulate how to deal with criminals in accordance with the rule of law and at the same time rationally.

Legality principle

Caricature: The German eagle at the judge's desk (& copy picture-alliance, die KLEINERT.de / Jan Rieckhoff)
The first principle of criminal law is called the principle of legality. It is reflected in the Basic Law: "An act can only be punished if the criminal liability was determined by law before the act was committed" (Article 103, Paragraph 2 of the Basic Law). Both the criminal liability requirements, the so-called offense (lat. "Nullum crimen sine lege": no crime without law), as well as the consequences of criminal liability (lat. "Nulla poena sine lege": no punishment without law) must be determined.

With regard to the consequences of criminal liability, the legislature establishes a framework for adult criminal law within which the court has to determine the specific penalty according to certain rules on how the penalty is assessed. Only in the case of murder and genocide has the legislature threatened an absolute punishment, the life imprisonment, which, however, can be reduced if the person is less responsible.

Greater freedom of choice is granted in juvenile criminal law. But also here it applies that the criminal behavior must be determined by law before the commission of the crime, so that the young person / adolescent can adjust his behavior to possible punishments.

One expression of the principle of legality is the non-retroactivity. This means the prohibition on enacting laws that make certain actions or omissions a criminal offense not only for the future but also for the past. The prohibition of retroactivity only applies to those norms that define the criminal law consequences of an act committed. However, the non-retroactivity prohibition does not include those norms that regulate the procedure - be it investigation, main negotiation or enforcement. For these, the law of the time of the offense does not apply, but the law of the time of trial.

The course of criminal proceedings (& copy Bergmoser + Höller Verlag AG, figure 129520)
A dispute had sparked in the Federal Republic in particular on the occasion of the extension of the statute of limitations for National Socialist murders. Originally, according to the Reich Criminal Code of 1871, there was a limitation period of 20 years for murder. However, the German Bundestag gradually extended this limitation period and finally, in 1979, established that the murder was not subject to the statute of limitations. So if someone had committed a murder in 1943, this would have expired after 20 years - that is, 1963 - according to the regulations at the time. If the legislature later declares murder to be non-statute-barred, a law will be applied that was not in effect at the time of the crime. The perpetrator could say that he did not have to expect these consequences. On the other hand, murder was also a criminal offense in 1943. So it is not a question of criminal liability per se, but only the question of how long afterwards the offense can be prosecuted and criminal proceedings can be conducted.
A comparable problem arose for the crimes that were not prosecuted by the criminal justice system in the GDR, for example shootings at the inner-German border, which were to be punished as manslaughter and for which a statute of limitations of 20 years applied. The federal legislature has expressly stipulated the suspension of the statute of limitations in the time of the factual non-prosecution; the years of the GDR judiciary are not counted towards the statute of limitations.

Binding to constitutional norms
Laws are decisions of interests made by the legislature. In this respect, the legislature also has the freedom to judge criminal laws. However, he is bound to the constitutional norms. Expressions of opinion may only be made a criminal offense if they interfere with someone else's rights and / or someone else's sphere of protection. Certain religions and certain parties may not be placed under separate criminal law protection. In this context, it is important to distinguish between morality and illegality. Only the so-called ethical minimum, according to the Austrian constitutional lawyer Georg Jellinek (1851–1911), as outlined in the articles of the Basic Law, may be required by the state. A certain ecclesiastical sexual morality, for example, cannot be declared generally binding. In a free state, the state is not a moral authority, which is why a renunciation of criminal law norms must not be seen as a moral approval: what is defined as unworthy of punishment is not yet presented as morally worthy. It is only in absolutist state systems that no distinction is made between unlawful morality and unlawfulness.
Instances in criminal jurisdiction for adults / adolescents / adolescents (& copy bpb, Heribert Ostendorf)

Criminal law
The criminal charge always means: You, a citizen, could have behaved differently if you had only wanted to. Behind this accusation is what is known as the criminal law of guilt: No punishment without personal guilt. Here it is assumed for adults that they are fundamentally culpable according to their development. Conversely, in the case of adolescents, i.e. between the ages of 14 and 17 inclusive, this guilt condition cannot be assumed in principle. Therefore, according to the Juvenile Court Act, the guilt must always be examined separately, that is, it must be determined as given.

However, there are also criminal reactions that are taken regardless of personal guilt. The German criminal law system knows the double-track system of punishments as well as the measures for reform and security. These measures can also and especially be pronounced if the accused was unable to act responsibly due to personal incapacity (e.g. illness or intoxication). Admission to a psychiatric hospital or a rehab facility for addicts is therefore also permitted to the criminal court under certain conditions, for example if an arsonist started fires under psychological coercion (pyromaniac). The toughest measure of reform and security is preventive detention, which is carried out after the sentence and can last for life.

Criminal law as a last resort
The criminal law is the strictest control instrument of the state because it is usually the hardest encroachment on the private sphere (in contrast, non-Germans often perceive expulsion as the toughest measure). Therefore, for reasons of the rule of law (principle of proportionality), this means may only be used as a last resort, as a last resort. Before this, other control instruments such as civil law or administrative law must be used. In addition, there are efficiency considerations: If penalties are used excessively, the desired effect fizzles out. In terms of prevention, punishment only ranks third. Primary prevention is the influencing of people to behave in accordance with the norms through education and the creation of a favorable social climate through youth policy and / or social policy measures; secondary prevention is the avoidance of opportunities and negative influences. For example, technical measures such as the installation of an electronic car security system prevent vehicle theft.

Criminal law therefore always has a "fragmentary character" and does not cover all rule violations by citizens. Criminal law should and may only intervene in the event of elementary violations of legal interests. Characteristics of this principle are that actions that prepare a criminal offense are generally not yet made a criminal offense and criminal liability only begins - in the case of serious offenses - with the start of the trial. Spying on a favorable opportunity, for example for a theft, is not yet a criminal offense, because many have such reprehensible thoughts at times, but still shy away from realizing it. The punishment of such evil intent would mean criminal conviction. Only when the crime plan is actually implemented does criminal liability begin. In the fight against terrorism, however, the legislature has created exceptions by making the preparation of a serious act of violence that endangers the state as well as the establishment of relationships with terrorist groups in order to receive appropriate training a punishable offense.

Another expression of this ultima ratio principle is that the so-called administrative injustice is only prosecuted with fines - certain traffic violations also with driving bans - according to the Administrative Offenses Act. Most offenses in traffic, such as driving too fast or parking in a no-parking zone, are administrative offenses. They do not represent a criminal injustice and are prosecuted in a special procedure under the Administrative Offenses Act. Administrative offenses can be found in many laws, for example in the Weapons Act, the Youth Protection Act and the Assembly Act; their number is hardly manageable any more.

Source text

The last resort in criminal law

Ultima Ratio means "last resort". […] In theory. But we also know this principle in our everyday life. If we have a cold or a runny nose, we first try to do without antibiotics, instead drink hot milk with honey, inhale salt solutions, "fill up" with fresh air, and only use antibiotics when these home remedies do not work because they are always harmful Generate side effects - up to antibiotic resistance. [...]

Punishments that we use to fight crime and reduce social diseases often have harmful side effects. Not only the offender suffers evil with the punishment, often also the family members, the children, the life partner. And penalties continue to work, the convicted person can lose his job if he has one, debts are not paid off, especially during the time of imprisonment, they multiply, and socially convicts are often completely sidelined. Families fall apart, friends and neighbors don't want to have anything to do with one of them anymore. Criminologists say the offender is stigmatized. In the Middle Ages, criminals were deliberately pilloried. In our media society, on the Internet, there are new pillory effects. [...]

The ultima ratio principle also applies today in criminal law. Before the legislature threatens a punishment for socially harmful behavior, other, better preventive and reaction means must be exhausted. This is dictated by the principle of proportionality. The principle of proportionality is part of the rule of law, derived from Article 20 (3) of the Basic Law. If the state imposes penalties, i. H. With violations of legal interests in the delinquent who wants to protect the legal interests of the citizens, this must be absolutely necessary because milder means are not sufficient. Every punishment, even the well-intentioned educational sanction, demands something from the delinquent and interferes with his legal position. Emotional need for punishment is insufficient for constitutional punishment. The petrification of legal feelings in criminal laws requires the necessity of the law. That is the essence of the rule of law, that limits are set on state power. And when we pronounce punishments in the courtroom, these must also be necessary, appropriate and proportionate to guilt. [...]

I will give four examples, four regulations in criminal law, which reflect this ultimate ratio principle.
1. Before an indictment is brought, before a conviction, it must be examined whether a discontinuation of the proceedings due to insignificance is possible - a discontinuation with conditions (usually with a fine) or without conditions. This applies to adult criminal law in accordance with §§ 153, 153a StPO [Code of Criminal Procedure]; this applies in particular to juvenile criminal law according to §§ 45, 47 JGG [Youth Courts Act]. In juvenile criminal law, approx. 67 percent of the proceedings are discontinued for these reasons, e.g. Partly for reasons of process economy. The procedure, from the police interrogation to the action of the public prosecutor or the court, often already has a sufficient effect in addition to the social consequences and reactions, e.g. B. on the part of the parents in the case of young people. "Do not shoot sparrows with cannons" is the saying.
2. In the event of a violation of the BtMG [Narcotics Act], drug therapy has priority over punishment in accordance with §§ 35 ff. BtMG. That makes sense. Drug addicts are not cured with punishment alone; Drugs are also used in prison. An improvement, a prevention of further criminal offenses - also before the criminal offenses - can usually only bring the drug therapy; the threat of punishment can provide an impetus for this.
3. Outpatient sanctions […] have priority over inpatient sanctions - as in the case of illness. In juvenile criminal law, there is a whole range of punitive effects for the outpatient area: educational measures and disciplinary measures. Juvenile punishment for harmful inclinations of the accused [...] may only be imposed in accordance with Section 17 (2), 1st alternative JGG, if educational measures and breeding materials are insufficient. So it is in the law - and we are obliged to the law.
4. Fourth and last example of the ultima ratio principle in criminal law: If a custodial sentence is indispensable, which is known as juvenile prison in juvenile criminal law, this sentence can be suspended, i.e. if the convicted person behaves well during the probationary period and follows the instructions and conditions are followed, the penalty is waived. In juvenile criminal law, the youth sentence is to be suspended for up to two years (Section 21 (2) JGG). The rehabilitation of the offender with instructions and conditions, especially with the support of the probation officer, is more promising than serving the prison sentence in a penal institution. Despite all efforts in the institutions, the recidivism rate is significantly higher than after a suspended sentence, especially with the use of a probation officer. That is why the probation officer is mandatory in juvenile criminal law. The recidivism rate after serving a youth sentence is 70–80 percent, although the definition of recidivism is different. [...]

Heribert Ostendorf, "Juvenile Criminal Law - Ultima Ratio of Social Control of Young People", in: Zeitschrift für Jugendkriminalrecht und Jugendhilfe, Issue 4, 2017, available at www.dvjj.de