Denigration of the state and its symbols
The denigration of the state and its symbols or the degradation of the state and its symbols or assault on national emblems are criminal offenses that are prosecuted in many countries. They denote both the damage and insult to the state and its recognized state symbols as well as actions against them.
Legal situation in Germany
In Germany , the denigration of the state and its symbols is punishable in Section 90a of the Criminal Code (Section 96 old version ) under the heading of endangering the democratic constitutional state , previously also known as defamation of the state .
According to Section 74a, Paragraph 1, No. 2 of the Courts Constitution Act (GVG), the district court is responsible for the main hearing .
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- Denigration of the state and its symbols
(1) Anyone who, publicly, in a meeting or by distributing writings (Section 11 (3))
- 1. insults or maliciously scorns the Federal Republic of Germany or one of its countries or its constitutional order or
- 2. denigrates the colors, the flag, the coat of arms or the anthem of the Federal Republic of Germany or one of its countries,
- is punished with imprisonment for up to three years or with a fine.
(2) Anyone who removes, destroys, damages, makes unusable or unrecognizable, or who engages in insulting nonsense, a publicly displayed flag of the Federal Republic of Germany or one of its countries or a sovereign emblem of the Federal Republic of Germany or one of its countries publicly affixed by an authority shall be punished. The attempt is punishable.
(3) The penalty is a prison sentence of up to five years or a fine if the offender intentionally campaigns against the existence of the Federal Republic of Germany or against constitutional principles.
Offense
Paragraph 1 number 1
The alternative offense of paragraph 1 number 1 is fulfilled by insulting or maliciously disdaining the Federal Republic of Germany, the federal states or their constitutional order . The act must be committed either publicly or in a meeting or through the dissemination of documents (within the meaning of Section 11 (3) StGB). The subject of protection of the regulation is the reputation of the state.
Insult is the expression of disregard that is particularly offensive due to its form or content. These include, for example, the assertion made on the occasion of the GSG-9 mission in Bad Kleinen that Germany had "murdered" 19 RAF members.
A contempt exists if something is described as unworthy of respect for citizens and is presented as unworthy. The contempt is malicious if it occurs in a hostile and reprehensible disposition despite knowledge of the injustice. An example of this is an article by the SRP party organ, the German opposition, from 1951, in which the young Federal Republic (“Bonner Staatsgebilde”) was compared with a “freshly painted Coca-Cola stall”.
Paragraph 1 number 2
Paragraph 1 number 2 protects the colors, the flag, the coat of arms and the anthem of the Federal Republic and its countries from denigration . For example, mocking recasting of the national anthem or defacing the federal eagle can be punishable . The artistic freedom ( Art. 5 para. 3 sentence 1 GG) found in § 90a of the Criminal Code barriers so that a punishment for defamation of state symbols is not already excluded solely because it this to be an artistic activity.
An act in accordance with paragraph 1 number 2 must also be committed publicly, in a meeting or by distributing writings.
Paragraph 2
Paragraph 2 protects on the one hand the publicly displayed flag of the Federal Republic and the states , and on the other hand the emblems of the Federal Republic and the states publicly affixed by an authority . Flags that are shown by private individuals are also protected if this is done in public. The national emblems include the coats of arms attached to the building of the authority, but also, for example, the cockades attached to the uniforms .
The deed is committed by removing, destroying, damaging, rendering unusable or illegible the named state symbols, or by engaging in insulting mischief. Insulting nonsense is the disregard of the symbol in a raw manner, recognizable for others, such as cutting down the flagpole.
Sentence
The act is punished with imprisonment for up to three years or with a fine . If the offender has intentionally campaigned against the existence of the Federal Republic of Germany or against constitutional principles, the offense is punished with a prison sentence of up to five years or a fine. According to Section 90a of the Criminal Code, this is an offense ( Section 12 (2) of the Criminal Code).
The objects of the crime can be confiscated according to § 92b StGB . If the offender is sentenced to imprisonment of at least six months, the ability to officiate, the eligibility for election and the right to vote can also be revoked as a secondary consequence according to § 92a StGB.
Legal situation in Austria
In Austria , the degradation of the state and its symbols is regulated in Section 248 of the Criminal Code. In addition, the offense, although only an offense , is to be tried before a jury in accordance with Section 31 (2) (2) StPO .
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- Degradation of the state and its symbols
(1) Anyone who hatefully insults or scorns the Republic of Austria or one of its federal states in such a way that the act becomes known to the general public is to be punished with imprisonment of up to one year or with a fine of up to 720 daily rates.
(2) Anyone who hatefully insults a flag of the Republic of Austria or one of its federal states displayed on a public occasion or at a generally accessible event, a national emblem, the national anthem or a state anthem affixed by an Austrian authority in the manner described in Paragraph 1 , contemptuously or otherwise degraded, is punished with imprisonment of up to six months or with a fine of up to 360 daily rates.
Legal situation in Switzerland
In Switzerland , the assault on Swiss national emblems is regulated in Art. 270 of the Criminal Code. Only those crimes are punished that were committed against “a Swiss national emblem” affixed by an authority.
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- Assault on Swiss national emblems
Anyone who maliciously removes, damages or offends a Swiss national emblem, in particular the coat of arms or the flag of the Confederation or a canton, is punished with imprisonment of up to three years or a fine.
literature
- Adolf Schönke, Horst Schröder: Criminal Code. Comment. CH Beck, Munich 2006. 27th edition. § 90a. ISBN 3-406-51729-3
Web links
- Gottfried Krutzki: The denigration of the state and its symbols - A documentation on § 90a StGB . Critical Justice 1980, pp. 294-314
Individual evidence
- ↑ BVerfGE 47, 198 (231)
- ↑ RGSt . 57, 211; 61, 308
- ↑ BayObLG NStZ -RR 1996, 135
- ↑ BGHSt . 3, 346, 348
- ↑ BGH NJW 1964, 1481
- ↑ BGHSt. 3, 346
- ↑ BVerfGE 81, 278
- ↑ OLG Braunschweig NJW 1953, 875
- ↑ RGSt. 43, 201
- ↑ Federal law of 23 January 1974 on acts threatened with judicial punishment (Criminal Code - StGB) StF: Federal Law Gazette No. 60/1974
- ↑ Version according to No. I of the Federal Act of June 17, 1994, in force since January 1, 1995 (AS 1994 2290 2307; BBl 1991 II 969).
