Constitutio Criminalis Carolina
The Constitutio Criminalis Carolina (CCC) or Carolina (contemporary also: the embarrassing court order of the Keyser Charles of the Fifth and Holy Roman Empire ) of 1532 is today the first general German penal code . In the translation from the Latin original into German it is called Embarrassing Court or Embarrassing Neck Court Order of Emperor Charles V. “Embarrassing” refers to the Latin poena for “punishment” and denotes physical and life punishments .
The basis of the Constitutio Criminalis Carolina was the Bamberg Embarrassing Neck Court Code (also called Bambergensis ), written in 1507 under the direction of Johann Freiherr von Schwarzenberg , which already drew on the humanistic ideas of Italian legal schools and relied on diverse elements of Roman law .
In 1498 the Reichstag in Freiburg im Breisgau decided to legally establish criminal proceedings throughout the empire. In addition to the Worms Reichstag, the law was only passed under Emperor Charles V in 1530 at the Augsburg Reichstag and two years later, on July 27, 1532, ratified at the Reichstag in Regensburg . This gave the Constitutio Criminalis Carolina the force of law. The time was shaped in terms of church history by the Reformation and foreign policy by the Turkish war .
From today's point of view, the Carolina is often referred to as a "theater of horror" because it contained very cruel features (torture and types of execution). Despite all the progress-oriented knowledge and the critical public that the Enlightenment brought with it, the Carolina was still valid in many parts of Germany until the middle of the 19th century. Only then did the modern penal codifications come into play; the early work of the Bavarian Penal Code of 1813 is an example of this. The last codification of this kind was the penal code for the Prussian states of 1851, until further reform efforts also replaced these laws and then manifested them at the Reich level.
The Carolina contained substantive criminal law, but primarily procedural law. The law had the function of a framework law, on the other hand the reservation of special regulations on local customary law of the territories applied. In particular, received Roman criminal law also applied .
Substantive criminal law
General requirements of criminal liability as well as individual criminal offenses were regulated in the Carolina. In Articles 177 to 179, the approaches of the “general part” are already quite highly developed, because participation , criminal trial and incapacity were standardized . For the conditions of the debt issue which had in adolescents accountability are already tested separately. Up to the age of 7, the accused were considered to be of no legal age, up to the age of 14 they were conditionally of age. Participation was described in Art. 177, understood as willful ( knowingly and sincerely knows ) participation ( einicherley helff, assisted or promoted as it is all called) in the act of another, today differentiated into the forms of participation aiding and abetting . Art. 178 dealt with the attempted criminality . Accordingly, an intent aimed at the execution and success of the crime ( evil will ), which had to be recognizable ( with a number of apparent acts that may have been official to commit the same offense ), was sufficient, but not to complete the Act led ( but the same misdeed would be prevented by other means against his will ).
In Art. 146, a distinction was made between intent and negligence ( from unhistorical, outrageously white and against the perpetrator's will ) and the demarcation was illustrated by examples ( parable ). The Carolina did not pursue a purely formal psychological conception of intent and negligence, but made the severity of guilt dependent on the outwardly acting inner attitude of the perpetrator. Thus a clear concept of guilt developed. The Carolina committed itself to the principle of culpable liability and removed remnants and remnants of a previous liability. Damage that was based on chance no longer justified criminal liability. This was also a consequence of the balancing of “justice” and “common good” (cf. Art. 104), because it was recognized that punishment can have a general as well as special preventive character, an idea that has already been discussed at Cicero .
The individual offenses
Offenses against the state, bodily harm and insults were completely absent from the law. In view of the different threats of punishment, however, the offenses of murder and manslaughter were precisely delimited from one another. The requirement of intent was common to both crimes, but the manslaughter acted with an affective surge such as anger and rage, while the murderer acted willfully.
The comprehensive today principle nulla poena sine lege , according to which criminal liability can only occur if the act is regulated by law at the time the act was not known as a typical product of the liberal constitutional movement of the 19th century and first of Paul Johann Anselm Feuerbach introduced been. The sentence of doubt in criminal law formulated by Christoph Stübel at the beginning of the 1810s and which is also indispensable today was still a long way off. One had to make do with describing so-called perpetrator types. To this end, the judges had the right to create analogies (Art. 105), an instrument that is today inadmissible in German criminal law. The judges were also given discretion when assessing the offense and before forwarding the files to the Oberhof or the next law faculty for decision-making, which they - regularly not legally trained - made extensive use of. Overall, the Carolina described the criminal offenses vividly, precisely and abstractly.
It was considered a capital crime z. B .:
- Robbery : rauber (126 style).
- Arson : Brenner (Art. 125)
- Counterfeiting of coins : the müntz forged (Art. 111)
- explicit breach of the original feud
- quite a few cases of theft
- Sorcery , insofar as it caused (personal) harm.
Besides the possibility of imposing penalties and fines (were legally geltbuß ) are provided which had to be made by the offender to the victim. With regard to punishment, the law differentiated between corporal punishment and capital punishment . But the first approaches to imprisonment were also anchored in the Carolina. Custodial sentences were only imposed as an alternative in the case of minor theft, namely when the perpetrator was not able to pay for the fine imposed on him ( but where the thief is unable to do such a fine, he should lied with the kercker for quite a while, be tightened , see Art. 157). The “ custodial sentences” indicated in Articles 176 and 195 appear more as preventive measures of preventive detention for repeat offenders at risk of relapse ( too bad belief in future malevolent damage , Article 195).
Art. 192 lists the death penalty according to the type of execution
In order to tighten the punishment, it could be ordered that the offender could be dragged to the place of execution (Art. 193) or previously beaten with red-hot pincers (Art. 194). Although seeming cruel by today's standards and implemented in practice, the sanctions were theoretically guided by a principle similar to the principle of proportionality , because the severity of the crime was graded. Execution with the sword was regarded as the mildest form of death, for example in the case of manslaughter in affect, while treason or high treason threatened to be divided into four.
In Article 198, the Carolina mentions the cutting off of the tongue, fingers, ears or nose as corporal punishment. Other means listed are the pillory and putting in the neck iron as well as beating.
The Carolina softened the catalog of sanctions of the Sachsenspiegel to the extent that the offense of magic no longer provided for the death penalty. For property damage, she only asked for reparations. The Carolina understood personal injury by damage: “Tight the magic. If someone inflicts harm or disadvantage on people through magic, one should tighten from life to death, and one should do it tightly with the fire. But where somebody has used magic and thereby harmed nymandt, should be punished according to the occasion of the matter; Darjnne the urtheiller Raths should practice everything from the search for the square afterwards. ”Especially by Protestant rulers, the milder Carolina was ignored in order to be able to condemn witches for mere damage to property.
The fine to be paid to the injured party, for example in the case of secret theft, was double the material value ( between Art. 157) and in the case of overt theft four times the material value ( fourfold Art. 158).
Criminal procedural law
In the criminal trial, the Carolina introduced the inquisition process with the stipulation that it should not be treated as a normal case, which, however, turned out differently in practice. Since the Carolina did not provide for a prosecution in the Inquisition process, the judge was the prosecutor. The medieval law of evidence based on (sup) belief (evidence by purification oath, witnesses of repute, judgment of God) has been modernized. The court had to produce the evidence for the commission of the offense of the accused, which was done by confession ( Urgicht ) or - if not available - by means of witness evidence. Since the code of law mistrusted judges who were not legally trained, it established fixed rules of evidence: On the one hand, only main facts, not auxiliary facts (circumstantial evidence), were allowed to lead to a conviction; on the other hand, it was required that only two identical testimonies from witnesses with impeccable repute were recognized as evidence (Art. 67). If there were no two witnesses, the accused - unlike today in the free assessment of evidence - could not be convicted. An attempt then had to be made to wrest a confession from him, using the embarrassing questioning (torture) if necessary . The court had to be convinced of the culprit's guilt (Art. 23). The judge decided at his own discretion about the type, duration and intensity of the ordeal. Despite a system of clearly prescribed rules of evidence, the accused could hardly be protected because torture proved to be an all-purpose weapon.
The Carolina also converted the separate judges' and judgment benches into collegiate courts . Aldermen and practical judges came together to judge.
The Carolina also restricted the not very widespread deprivation of liberty to the effect that convicts were only condemned until their liberty was clearly improved. The Bamberg court order - the "mater Carolinae" - still provided for "eternal" deprivation of liberty.
In the Middle Ages , criminal law was viewed as a private matter for those involved. The so-called accusation procedure had features under private law. If the victim was unwilling or unable to initiate a lawsuit, the state would not care. The act could also be atoned for by paying fines to victims or surviving dependents instead of punishing them. The primary goals were to regulate conflict through compensation and to restore the disrupted legal system. This criminal law was almost powerless against organized criminal gangs. Because of the legal fragmentation in the individual territories, criminal proceedings were very inconsistent.
The inquisition procedure was borrowed from canon law and the practice of persecuting heretics . In the Carolina sense, the trial was brought against a government prosecutor and not one of the conflicting parties. The action was brought ex officio (“ ex officio ”) and thus in the public interest. In addition to the confession and evidence from witnesses, experts could be called. The decision was not made by lay judges, but by a law faculty or a higher court, to which the files were sent for judgment.
The Constitutio Criminalis Carolina wanted to standardize the law in the Holy Roman Empire of the German Nation , which at the same time should put a stop to the criminal jurisdiction , which up until then was very arbitrary and country-specific . The Carolina succeeded in moderating its zeal for persecution, although a severability clause at the end of the preface instructed it to be subsidiary to the particular rights of the imperial estates . The clause was a prerequisite for the approval of the imperial estates, who otherwise wanted to maintain their local judicial and legislative sovereignty. As a result, the Carolina was the model for many state laws. Its Reformation effect on criminal law is therefore undisputed. However, mixed forms continued to exist in practice in the territories for a long time.
A renewed standardization of criminal law succeeded in Germany only with the penal code for the German Empire of 1871, which is still valid today with numerous changes.
- The embarrassing court order of Emperor Charles V and the Holy Roman Empire from 1532 = (Carolina). Edited and explained by Friedrich-Christian Schroeder. Reclam, Stuttgart 2000, ISBN 978-3-15-018064-8 .
- Klaus Geppert: The embarrassing neck court order of Charles V (the "Carolina") . In: Legal training (JURA) 2015, pp. 143–153.
- Elmar Geus: murderers, thieves, robbers. Historical consideration of German criminal law from the Carolina to the Reich Criminal Code. Scrîpvaz-Verlag Krauskopf, Berlin 2002, ISBN 3-931278-14-X ( Spectrum of Cultural Studies 6; also: Frankfurt (Oder), Europa-Univ., Diss., 2001: Criminal law reforms from the Carolina to the Reich Criminal Code ).
- Peter Landau , Friedrich-Christian Schroeder (eds.): Criminal law, criminal process and reception: Basics, development and effect of the Constitutio Criminalis Carolina . Klostermann, Vittorio (1984). ISBN 978-3465016076 .
- Harald Maihold: “auss dear der justigkeyt and umb common use sake” - The Constitutio Criminalis Carolina of 1532. In: ius.full. 2006, . Pp. 76-86.
- Julius Friedrich Malblank: History of the embarrassing court order of Emperor Karl V. Grattenauer, Nuremberg 1782 (reprint: Keip, Holdbach 1998, ISBN 3-8051-0418-9 ).
- Klaus-Peter Schroeder: From the Sachsenspiegel to the Basic Law. A German legal history in life pictures. Beck, Munich 2001, ISBN 3-406-47536-1 .
- Michael Ströhmer: witch research . Historicum.net
- Transcript of the DEs most luminous, most powerful and most overwhelming Keyser of Charles the fifth: vnnd of the holy Roman Empire embarrassing court order ... , Meyntz, Ivo Schöffer, 1533 ( Memento from January 23, 2013 in the Internet Archive ) (PDF; 679 kB)
- Overview with Klaus Geppert: The embarrassing neck court order of Charles V (the "Carolina") . In: Legal training (JURA) 2015, pp. 146–153.
- Uwe Wesel : History of the law: From the early forms to the present. CH Beck, Munich 2001, ISBN 978-3-406-54716-4 . No. 258.
- Interpretation in this direction by Klaus Geppert: The embarrassing neck court order of Charles V (the "Carolina") . In: Legal training (JURA) 2015, p. 147 f.
- Klaus Geppert: The embarrassing neck court order of Charles V (the "Carolina") . In: Legal training (JURA) 2015, p. 147.
- On this aspect in detail Klaus Geppert : The embarrassing neck court order of Charles V (the "Carolina") . In: Legal training (JURA) 2015, p. 149.
- Hinrich Rüping , Günter Jerouschek : Outline of the history of criminal law. Textbook / study literature. 6th edition 2011. CH Beck. ISBN 978-3-406-62689-0 .
- Uwe Wesel: History of the law: From the early forms to the present. CH Beck, Munich 2001, ISBN 978-3-406-54716-4 . No. 288.
- Klaus Geppert: The embarrassing neck court order of Charles V (the "Carolina") . In: Legal training (JURA) 2015, p. 146.
- Franz-Josef Sehr : The fire extinguishing system in Obertiefenbach from earlier times . In: Yearbook for the Limburg-Weilburg district 1994 . The district committee of the Limburg-Weilburg district, Limburg-Weilburg 1993, p. 151-153 .
- Klaus Geppert: The embarrassing neck court order of Charles V (the "Carolina") . In: Legal training (JURA) 2015, p. 148.
- Barbara Stollberg-Rilinger: Criminal Law Development Introduction to the Early Modern Era, University of Münster, 2003
- "But we do not want to have deprived Prince Electors and Stenden of old, well-established legal and common customs with this gracious reminder."