Enemy criminal law

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The term feindstrafrecht is a 1985 from the German criminal lawyer and legal philosopher Günther Jakobs proposed name for a criminal , that certain groups of people, the civil rights denied and as enemies of society or the state outside the limits of the Company Law provides. All available means are permitted in enemy criminal law. It is therefore not a criminal law in the traditional sense, but an instrument for averting danger that is freed from the rule of law . As a counter-term, Jakobs coined the expression "civil criminal law". The concept is rejected by most criminal lawyers and legal philosophers of democratically constituted states. Jakobs himself claims to only describe enemy criminal law, but not to propagate it, while critics accuse him of adopting a partially affirmative stance on it since 2004 at the latest .

Jacob's Doctrine of Enemy Criminal Law

In the Federal Republic of Germany, the discussion about enemy criminal law and its right to exist was initiated in 1985 by the legal scholar Günther Jakobs through his article Criminalization in the run-up to an infringement of legal interests, in which Jakobs first differentiated between civil criminal law and enemy criminal law. The Bonn professor of criminal law received feedback beyond his area of ​​expertise with his article Civil Criminal Law and Feind Criminal Law, published in 2004 . In it, Jakobs takes the view that anyone who consciously rejects the state legal system or even wants to destroy it should lose his rights as a citizen and as a person and may therefore be fought by the state with all means. The terrorist who wants to overthrow the prevailing social order, the "habitual criminal" who ignores all state laws or the Mafia member who only lives by the rules of his clan are therefore "non-persons" and should not be treated as citizens. Rather, they are to be fought as "enemies". While Jakobs had used the term Feindstrafrecht in 1985 in a critical and descriptive way by analyzing the tendencies of the newer German criminal law towards enemy criminal law, in 2004 he described some concepts of enemy criminal law positively. Jakobs himself never admitted to personally representing these views. Rather, he only establishes what already largely corresponds to reality.

Thomas Hobbes

Jakobs justifies the necessity of enemy criminal law in legal philosophical terms and refers to the contract theory founded by Thomas Hobbes and its interpretation by Immanuel Kant . The one who terminates the - imagined - social contract through his actions, leaves society of his own free will and goes into the lawless state of nature . At the same time he loses his quality as a person and becomes an enemy. As an enemy he is to be fought by society.

With reference to the terrorist attacks on September 11, 2001 in the USA , Jakobs asserts a practical need for enemy criminal law. The ties that the rule of law imposes on its citizens are "absolutely inadequate" for terrorists.

Finally, Jacob argues that already contains the German law "feindrechtsstrafliche strands and particles" in force, such as preventive detention , the criminalization of the preparation of crime and the ban on contact between defense lawyers and clients. This means that the criminal law of the enemy is fundamentally recognized legally and socially. In the interests of the citizens, however, it is necessary to openly mark enemy criminal law as such and only apply it to the “enemies of society”.

Under the rule of the Basic Law of the Federal Republic of Germany, rules of criminal criminal law are not legitimate for constitutional reasons. State measures which, for whatever reason, deny a person legal status as a person are unconstitutional. This results from Art. 1 ( dignity of the human being ) and Art. 20 ( rule of law ), which are also withdrawn from reform by a constitution-changing majority in the legislative body of the Bundestag . Consequences of an enemy criminal law such as indefinite imprisonment, withdrawal of legal counsel and torture are also unconstitutional. In the so-called Daschner trial, the Frankfurt Regional Court has already ruled the threat of torture against a kidnapper by the Vice-President of the Frankfurt Police, Daschner, mildly, but has not allowed arguments of enemy criminal law to apply and the prohibition of torture in the Basic Law (see Art. 104 GG) in full approved.

Enemy criminal law in practice

Antiquity and Middle Ages in the German-speaking area

The Teutons expelled clan members for particularly dishonorable acts of their clan. The perpetrators succumbed to peacelessness and were considered outlawed .

In the Middle Ages , criminals could be ostracized under certain conditions . They stood outside of society and the law. Anyone who killed an outlaw went away with impunity.

time of the nationalsocialism

A classic enemy criminal law was exercised in the time of National Socialism in the German Reich from 1933 to 1945 : Jews, “ anti-socials ” and opponents of the National Socialist idea were declared “ pests of the people ” for which the laws of the German national community did not apply. They could be taken into “ protective custody ” by the Gestapo at any time . The People's Court and other special courts were responsible for their - quick - judgment . ( See also: Ordinance against public pests ). Without trial, they were locked up in concentration camps and massacred.

A comparable special criminal law applied during the Second World War for the so-called foreigners . For example, Polish citizens were subject to the Polish Criminal Law Ordinance that came into force in 1941 .

Trends to Enemy Criminal Law in the Present

Legal scholars identify tendencies towards enemy criminal law in all limitations of the validity of constitutional guarantees, "in that certain facts and persons (groups) are excluded from their protection and are exposed to disenfranchisement", according to Berlin criminal lawyers and criminologists Tobias Singelnstein and Peer Stolle. These restricted areas of law include legislation on aliens, anti-terrorism and organized crime laws . In these areas, "facts and investigative measures have been introduced since the 1970s, the justification of which should apply to particularly serious and dangerous crime, but which actually have an area of ​​application that also includes light to medium crime." always “foreigners. With the “de facto abolition of the right of asylum, the third country regulation also introduced a very considerable shortening of legal protection.” This creates “legal precariousness” which is reinforced by “work bans, residence obligation, illegalization and camp accommodation”.

The preventive detention for multiple-offenders after § 66 of the Criminal Code can so far be seen as part of the enemy criminal law as it takes more account of the security needs of the population as the concept of rehabilitation: The legislature is sweeping assumption that there are certain individuals who are not resozialisierbar are. With the judgment of the European Court of Human Rights on December 17, 2009, preventive detention was declared unlawful in the event of a retroactive imposition.

Preventive detention poses a similar problem . Although it does not officially exist, it has reappeared more and more in the political debate in recent years, including with regard to the fight against hooligans and organized crime .

Colombia and Guantánamo

Guantánamo: Camp X-Ray

In Colombia , enemy criminal law has been used against “drug terrorists” since 1990. Those affected are often held in pre- trial detention for years without charge and without legal counsel , only to be tried in secret trials based on the statements of anonymous witnesses. The prosecution itself is primarily the responsibility of a special military unit that is only formally subordinate to the public prosecutor's office. About seven percent of the prosecuted crimes are prosecuted with the means of this enemy criminal law.

The US military's classification of Al Qaeda and Taliban fighters as “unlawful combatants” and their detention in the Guantanamo camp can also be viewed as manifestations of enemy criminal law; "Fighters" classified in this way were initially only people who did not have US citizenship. With the enormous expansion of killings by remote-controlled drones , especially by drone strikes in Pakistan , the CIA has succeeded in “eliminating” a number of important al-Qaida and Taliban leaders such as Atijah Abd al Rahman or Baitullah Mehsud , but also a US citizen , Anwar al-Awlaki , whose killing (September 30, 2011) in Yemen was expressly welcomed by President Obama.

criticism

Criticism of enemy criminal law and its concepts is directed against the overriding of fundamental legal standards. Enemy criminal law in Germany “contradicts elementary constitutional principles through the demand for a partial but permanent repeal of legal clauses for the 'enemies of the system'”.

Oskar Negt emphasizes, following Walter Jellinek , “the law not only protects society and the state from criminals, but also the other way round: the law also protects criminals from arbitrary attacks by the state and acts of revenge by citizens. The authors of the Basic Law have deliberately not limited the protection of human dignity to right-wing citizens ; Rather, they speak of the inviolability of human dignity, of all human beings ... ”Negt Heribert Prantl goes on to say,“ Chilling out non-persons, excluding them, denying them the right to be treated as a person - that is a vocabulary that we have n't heard since the end of National Socialism . "

See also

literature

Fundamental

  • Günther Jakobs: Criminalization in the run-up to a violation of legal interests. In: Journal for the entire criminal law science 97, 1985, pp. 751–785.
  • Günther Jakobs: Civil Criminal Law and Enemy Criminal Law . In: HRRS 3/2004, pp. 88-95.
  • Günther Jakobs: On the theory of enemy criminal law. In: Rosenau / Kim (ed.): Criminal theory and criminal justice , Frankfurt 2010, pp. 167–182.

Monographs

  • Alejandro Aponte: War and Enemy Criminal Law. Considerations on "efficient" enemy criminal law based on the situation in Colombia. 1st edition, Nomos-Verlag, Baden-Baden 2004, ISBN 3-8329-0612-6 .
  • Katrin Hawickhorst: Paragraph 129a of the Criminal Code - A wrong way to fight terrorism under enemy criminal law. Critical analysis of a procedural key norm in substantive law . 1st edition, Duncker & Humblot, Berlin 2011, ISBN 978-3-428-13654-4
  • Geraldine Morguet: Feindstrafrecht - a critical analysis Publishing house Duncker & Humblot Berlin 2009, ISBN 978-3-428-12795-5 , criminal law treatises · Vol. SRA 204.
  • Hendrik Schneider: Can the practice in recognizing standards guide the doctrine of criminal law? Publishing house Duncker & Humblot Berlin 2004, ISBN 3-428-11494-9 , Writings on criminal law · Vol. SR 162.
  • Tobias Singelnstein, Peer Stolle: The security society. Social Control in the 21st Century . 3. completely revised Ed., VS-Verlag. Wiesbaden 2012, ISBN 978-3-531-17531-7
  • Thomas Uwer (Ed.): Please keep calm. Life in the hostile state. 1st edition, Berlin 2006, ISBN 3-9808275-6-9 .
  • Karolina Víquez Azofeifa: The Reception of “Enemy Criminal Law” in Latin America . Hamburg, Univ.-Diss. 2011. Full text (PDF)

Essays

Web links

Footnotes

  1. ^ Günther Jakobs: Criminalization in the run-up to a violation of legal interests. In: Journal for the entire criminal law science 97, 1985, pp. 751–785, pp. 783 ff.
  2. ↑ Tobias Singelnstein / Peer Stolle: The security company. Social Control in the 21st Century. 2. completely revised Edition, 2006; P. 106.
  3. ↑ a b c Tobias Singelnstein / Peer Stolle: The security company. Social Control in the 21st Century. 2. completely revised Edition, Wiesbaden 2006, p. 107.
  4. ^ The court condemns Germany in DIE WELT , December 17, 2009
  5. ↑ Archived copy ( memento of the original from September 30, 2011 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.foxnews.com
  6. ↑ Cf. also Roland Hefendehl (2005): Organized crime as a justification for criminal law against enemies or perpetrators? In: Strafverteidiger 2005, pp. 156–161.
  7. ↑ Tobias Singelnstein / Peer Stolle: The security company. Social Control in the 21st Century . 2nd edition, 2006, p. 106f .; see. also Roland Hefendehl (2005): Organized crime as a justification for an enemy or perpetrator criminal law? In: Strafverteidiger 2005, pp. 156–161.
  8. ^ Oskar Negt: The political man. Democracy as a way of life , Steidl Verlag, Göttingen, 2010, p. 109, emphasis placed on Negt
  9. ^ Oskar Negt: The political man. Democracy as a way of life , Steidl Verlag, Göttingen, 2010, p. 109