State of emergency beyond the law
The above legal state of emergency is in German law a reasoning approach for a justification , Entschuldigungs- or Strafausschließungs- and criminal pleas based on an offense that is not regulated by law. “Supra-legal” means reasons that are not standardized in the law, but can be derived from legal principles of equal or greater weight (see also natural law , legal positivism ). This state of emergency should be limited to very extraordinary and insoluble conflicts of conscience. The prerequisites, nature and legal consequences of the supra-legal emergency have remained vague.
The figure of a supra-legal emergency is not recognized in practice. Dogmatically it is highly controversial and is seen in contradiction to the prohibition of weighing life against life , the principle of legality , the principle of accusation and the primacy of the constitution . In particular, it is viewed critically to justify a supra-legal state of emergency in cases of an absolute ban, because the absolute and unexceptional effect of the ban is deliberately circumvented. Example: prohibition of torture .
development
In its original version, the German Criminal Code only knew one emergency regulation that roughly corresponds to today's apologetic emergency ( Section 35 StGB ). This led, for example, to the fact that a doctor was liable to prosecution under the law of the time, who carried out an abortion in order to save the life of his patient when there was medical indication .
In one such case, the Reichsgericht recognized in 1927 that there was also a justifying state of emergency that was not regulated by law. According to the balancing of interests theory, the person who violates a lesser legal interest in order to protect a “higher legal interest” is not acting unlawfully .
This case-related construct was discarded with the introduction of the justifying and apologizing state of emergency ( § 34 and § 35 StGB) by the major criminal law reform in 1975.
Collision of duties excluding guilt
An irresolvable conflict of duties exists if the perpetrator only has the choice between two evils and would behave in breach of duty in both cases.
- Example: Doctors who selected some mentally ill people for Action T4 during the National Socialist era in order to save other mentally ill people. If the doctors had refused, many more patients would probably have been murdered by another doctor.
Because of this, in a judgment of the Supreme Court after the Second World War, some of the doctors were acquitted of the criminal charge. Since then, it has been assumed that behavior in similar case constellations is not punishable.
Daschner trial
There was public discussion of the above- legal emergency in 2002 in the case of the abduction of Jakob von Metzler . There, the then Deputy Police President Wolfgang Daschner threatened the perpetrator with torture if he did not reveal the whereabouts of his victim. During the subsequent process , Wolfgang Daschner invoked, among other things, a conflict of obligations that excludes guilt , as he acted to save the victim.
However, the Frankfurt Regional Court did not follow this view. Emergency ruled out because there were other, milder means to save the victim.
Targeted shooting down of hijacked passenger planes
The above legal state of emergency was established in 2007 as part of the fight against terrorism by German Defense Minister Franz Josef Jung as a possible legal basis brought for launching abducted (and weapon perverted) passenger aircraft into play.
In the previous legislative period (“red / green”), on January 14, 2004, the federal government at the time ( Schröder II cabinet ) submitted a bill to the Bundestag (“Draft of a law for the new regulation of aviation security tasks”). On the other hand, a pilot and five lawyers sued the Federal Constitutional Court , which negotiated this on November 9, 2005 and decided on February 15, 2006 that shooting authorizations in the Aviation Security Act are void.
The pivotal point was the question of whether the (innocent) passengers present on the plane and the flight crew may also be killed by shooting down the plane. In fact, the legally regulated grounds for justification do not apply in such a case:
The self-defense according to § 32 of the Criminal Code only justifies intervention in legal interests of the attacker, so the hijackers. The justifying state of emergency according to Section 34 of the Criminal Code is ruled out, as weighing life against life due to the absolute protection of the human dignity of every individual ( Article 1, Paragraph 1 of the Basic Law ) is out of the question. Otherwise there can be no justifying legal basis. Since the targeted shooting of hijacked passenger planes degrades the passengers and crew members on board to mere objects of state action, it violates Article 1, Paragraph 1 of the Basic Law. Even a constitutional amendment could not change anything here, as the eternity guarantee of Article 79.3 of the Basic Law applies.
So there are only grounds for excuse , whereby the legally regulated state of excusability according to § 35 StGB is ruled out because of the close relationship required there. Ultimately, a shooting order could only be based on the legal emergency . However, this does not make the action lawful, but rather excuses illegal action under strict conditions (see the trolley problem ) . The legal emergency is therefore not a legal basis in the legal sense for the shooting down of hijacked passenger aircraft. Accordingly, the recommendation of the Federal Armed Forces Association and the VBSK is not to execute a corresponding (illegal) shooting order. According to Section 11 (2) SG , a soldier may not carry out an order if this would commit a criminal offense.
Individual evidence
- ↑ RGSt 61, 242.
- ↑ BGH NJW 1953, 513.
- ↑ OGHSt 1, 321st
- ↑ Defense against terrorism: SPD and Greens outraged by Jung's shooting plans , Der Spiegel from September 17, 2007.
- ↑ BT / DS 15/2361 (PDF file; 488 kB)
- ↑ Karlsruhe negotiates the Aviation Security Act ( Memento from May 28, 2014 in the Internet Archive ), RP-online from November 9, 2005.
- ↑ a b BVerfG, judgment of February 15, 2006 , Az. 1 BvR 357/05, full text = BVerfGE 115, 118 - Aviation Security Act.
- ↑ K. Grechenig & K. Lachmayer, On the weighing of human lives - thoughts on the performance of the constitution, Journal für Rechtssppolitik (JRP) 2011, Issue 19, 35–45.
- ↑ BVerfG, press release No. 6/2011 of February 15, 2006.
- ↑ Jung insists on constitutional amendment ( Memento from May 28, 2014 in the Internet Archive ), RP-online.de.
- ↑ Shot on the Basic Law , Die Zeit from September 17, 2007.
- ↑ Aircraft shooting down : Jet pilots mutiny against Jung , Der Spiegel Online from September 17, 2007.
