Official insult
With insulting refers to the insult of a public official , which was committed to its service during the execution of their duties or in relationship. This is a separate criminal offense in French criminal law (“Outrage à agent public”, Article 433-5 Code pénal ), but not in Germany and Austria.
Germany
No separate offense of insulting officials
In German criminal law , insulting officials is not a separate offense. A civil servant is no different here than another citizen. It is therefore a "normal" insult in accordance with Section 185 of the Criminal Code (StGB).
An exception can be found in Section 90 StGB. According to this, the denigration of the Federal President is subject to a special penalty, in serious cases (Paragraph 3) with up to five years imprisonment. The President , however, has to para. 4 the exclusive right to authorize the prosecution and thus also for their elimination.
Historically, the former Prussian criminal law contained a special criminal provision for insulting civil servants ( Section 102 PrStGB ).
Procedural special features
In Germany there are at insulting a public official who does not necessarily have to be an official has a procedural feature: While the offense always on request followed the injured, according to can § 194 para. 3 of the Criminal Code exist among public officials and the immediate superior of the insulted the criminal complaint put:
“If the insult is committed against a public official, a person particularly responsible for the public service or a soldier of the Bundeswehr during the exercise of his service or in relation to his service, it will also be prosecuted at the request of the superior. If the act is directed against an authority or another body that performs public administration tasks, it will be prosecuted at the request of the head of the authority or the head of the supervisory authority. The same applies to holders of offices and authorities of churches and other religious societies under public law. "
In addition, the public prosecutor's office usually affirms the public interest in criminal prosecution, so that referral to private legal action or termination of the proceedings according to §§ 153 , 153a StPO are far less frequent ; this is regulated in no. 232 para. 1 RiStBV .
Before the Great penal reform that was right to apply the supervisor in § 196 of the Criminal Code a. F. regulated as follows:
"If the insult is committed against an authority [or] an official [...] while they are exercising their profession, or in relation to their profession, their official superiors also have the right to file a criminal complaint in addition to those directly involved deliver."
Offense against officials and freedom of expression
In connection with the "insulting civil servant", it should be noted that freedom of expression is important, especially in relation to authorities and their employees who exercise state violence. Measures by public authority can also be sharply criticized. In court, in particular, a party involved in the proceedings may use strong, haunted expressions and catchphrase “in the struggle for justice” in order to make his opinion heard in a polarizing way; Even strong personal wording may be permitted.
Austria
In Austria, too, there is no separate penal norm that places insulting civil servants under a special threat of punishment. It is the usual offense according to § 115 StGB .
However, the second paragraph of Section 117 of the Criminal Code states that the public prosecutor (public prosecutor) is obliged to prosecute the offense (analogously) in the case of insults that are pronounced against civil servants, if the civil servant's superior also gives their consent. So it is a restricted official offense . The fourth paragraph of the same paragraph states that if the prosecutor should stop the prosecution, the officer himself is entitled to further prosecution.
Individual evidence
- ↑ OLG Naumburg, decision of 06/17/2014 - 2 Rv 88/14 (The - alleged - insult of a judge has no greater significance than that of any other citizen).
- ↑ Thomas Fischer, Commentary on the Criminal Code, 65th edition 2018, Rn. 28a to Section 193 of the Criminal Code
- ↑ Federal Constitutional Court, decision of July 24, 2013, Az. 1 BvR 444/13 and 1 BvR 527/13; Decision of March 10, 2016, Az. 1 BvR 2844/13; European Court of Human Rights, judgment of November 2, 2006, Az. 60899/00.
- ↑ Decision of the OLG Munich of July 11, 2016, Az. 5 OLG 13 Ss 244/16 in the case " Freisler-comparison " = Anwaltsblatt 2016, 767 = StV 2017, 183 = NJW 2016, 2759, confirmed by decision of the OLG Munich dated May 31, 2017, Az. 5 OLG 13 Ss 81/17 = Anwaltsblatt 2017, 783 = BRAK-Mitteilungen 2017, 239 = DVBl 2017, 979
- ↑ LTO article on the Freisler comparison
