Deprivation of liberty

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Charges against two police officers of the Zurich City Police for unlawful arrest (deprivation of liberty)

The deprivation of liberty is an act against the protected legal interest of the freedom of the person ( freedom of movement).

Legal situation in Germany

The deprivation of liberty in Germany is a criminal offense to § 239 of the Criminal Code .

Offense

The deprivation of liberty is not a state offense , but a permanent offense (cf. Section 239, Paragraph 3, No. 1 and 2: “longer than a week” and “during the act”). Only the victim is protected who is able to freely determine his whereabouts. Thus, small children and unconscious people are eliminated. Sleeping people, on the other hand, are included (individually controversial). Of § 239 of the Criminal Code not only the actual but also the potential movement of freedom is in fact protected. Potential victims are also people with cognitive or physical disabilities . To determine whether the victim has been deprived of his or her freedom , the objective situation alone is decisive; the (subjective) presumption that they were locked up or restricted in their freedom is not sufficient. Furthermore, holding on for a very short time, e.g. B. during a fight, not sufficient to assume an interference in the freedom of movement of the victim.

The offense represents an encroachment on personal freedom of movement. The law names imprisonment and deprivation of freedom "in another way" as offenses. Imprisonment is highlighted as a typical example. This is to be understood as "preventing someone from leaving a room by external devices". Also tying, as in a so-called fixing in the medical or nursing is practiced can the court order without facts satisfy the restraint. According to the prevailing opinion, there is a deprivation of liberty even if the person concerned knows a way out, but using it in a specific case appears difficult or unreasonable. So the incarceration does not have to be insurmountable.

In addition, freedom can be deprived of “other ways”. This alternative offense includes “any means that is capable of depriving another person of freedom of movement”. So, similar to locking up, a mere aggravation is not sufficient, "but that in the [specific case] overcoming the [obstacles] is unreasonably dangerous". Of course, violence, threats or cunning can also be suitable means of action, but these must “create a psychological barrier in the victim”.

Since the offense “presupposes action against or without the will of the person concerned”, the victim's consent excludes this. Although it is fundamentally revocable, the “termination of the 'deprivation of liberty' must also be reasonable for the agent”. A bus driver does not have to stop between two stops because a passenger wants to get off. According to the prevailing opinion, there is no deprivation of liberty even if the consent was obtained through cunning or threat. Cases are problematic in which, despite the existence of alternative or escape options, the deprivation of liberty occurs through de facto coercion. If threats reach the "degree of a current danger to life or limb", the offense is fulfilled. On the other hand, there is no deprivation of liberty if the possible “leaving a place would result in [only] a sensitive evil within the meaning of Section 240 of the Criminal Code”. In such cases, criminal liability for coercion ( Section 240 StGB) is conceivable.

The location can be a room, a building, a site, or a city. For this reason, a victim who has been deprived of his or her freedom can still be deprived of remaining freedoms. This applies, for example, to a person locked up or in prison who is handcuffed. The deprivation of liberty is a permanent offense. The act is completed when the deprivation of liberty occurs , but only ended when it is rescinded . A certain duration is not required; "In order to only cover criminal injustice, [however] a certain materiality threshold" is interpreted into the facts. Therefore, "temporally insignificant (short-term) impairments of freedom of movement" do not fall into the protection area.

If a defendant is wrongly sentenced to imprisonment through intentional false testimony by a third party in court , the execution of imprisonment is a deprivation of liberty, and indeed in indirect perpetration.

The offense must be carried out intentionally ; the negligent inspection is not punishable ( § 15 StGB), since there is no corresponding offense of negligence.

Structure of offenses

In its basic form, the offense is an offense with the threat of up to five years imprisonment or a fine . Attempts have also been punishable in Germany since 1998 ( Section 239 (2) StGB).

All offenses in paragraphs 3 and 4 are crimes .

With § 239 para. 3 no. 1 of the Criminal Code, according to a view of a constituent elements of offenses qualifying one or another view success qualification introduced, at a liberty that lasts longer than a week, an increased sentence of one year up to ten years provides for imprisonment. If one sees this as a factual qualification, then intent is required with regard to the long duration . According to the other view, only negligence is required with regard to the long duration according to § 18 StGB .

Section 239, Paragraph 3, No. 2 of the Criminal Code is undisputedly a qualification for success to which Section 18 of the Criminal Code applies. It should be noted that there must be at least negligence with regard to the serious damage to health. With the introduction of trial criminality in accordance with Section 239 (2) of the Criminal Code has settled the issue of criminal liability for deprivation of liberty as a successful attempt , so that these principles are transferable, as is the problem of withdrawal .

As a further variant of a successful qualification, the provision in Section 239 (4) of the Criminal Code provides for deprivation of liberty resulting in death as a homicidal offense in the broader sense, the threat of which is not less than three years imprisonment (maximum: 15 years, see Section 38 of the Criminal Code).

Relationship to other offenses (competitions)

Deprivation of liberty is an independent crime that is not suppressed by coercion in the context of competition . If the use of force is only used to deprive people of their liberty, coercion is suppressed; on the other hand, unity of action is possible if the deprivation of liberty is intended to force behavior that goes beyond this.

If the result of death in paragraph 4 is (conditionally) brought about willfully, unity with murder , manslaughter and bodily harm resulting in death is possible.

In the case of offenses that necessarily include deprivation of liberty (cases of sexual coercion , extortionate kidnapping and hostage-taking, or robbery ), the deprivation of liberty takes a back seat to the criminal law provided it does not go beyond the other offense. She will then no longer be charged and punished as a separate offense. On the other hand, if, for example, the deprivation of liberty is continued beyond sexual coercion, unity of action is possible.

Criminal liability in Switzerland

In Switzerland the offense is deprivation of liberty and kidnapping according to Article 183 of the Criminal Code . She is punished with a prison sentence of up to five years or a fine, in aggravating circumstances ( Art. 184 ) with a prison sentence of not less than one year.

Criminal liability in Austria

In Austria, the comparable offense is deprivation of liberty according to Section 99 of the Criminal Code . A prison sentence of up to three years is threatened there. If the detention

  • lasts longer than a month, or
  • it is committed in such a way that it causes particular torments to those who are held, or
  • it is committed under such circumstances that it is associated with particularly serious disadvantages for the detainee,

are threatened with one to ten years imprisonment.

Known cases of deprivation of liberty

  • Kidnapping of Natascha Kampusch in Vienna , 1998 to 2006
  • False rape allegation with the consequence of a long prison sentence for the teacher Horst Arnold (see legal miscarriage of Horst Arnold ).
  • the daughter and grandson of Josef Fritzl in Amstetten , 1984 to 2008
  • “Maria K.”: A 24-year-old girl was held captive for nine years by her adoptive parents in a wooden box in an unheated storage room in Vienna. She was liberated in 1996. 
  • A lawyer from Linz kept her three daughters, initially at the age of 6, 10 and 13, trapped in dirt and darkness for 7 years in a row house settlement until February 2007. The girls invented their own language and played with mice. The youth welfare offices, which despite indications of unexcused absenteeism from school, never went to the mother's apartment, were heavily criticized.
  • Niigata Child Abduction - Kidnapping of a Japanese girl for more than nine years, 1990-2000
  • Kidnapping of Steven Stayner - Kidnapping of an American boy, 1972-1980 , for more than seven years
  • The FlowTex case, the Ilona Haslbauer case and the Gustl Mollath case are considered to be of great legal interest in connection with the deprivation of liberty . In the Mollath case, the lawyer Gerhard Strate filed a complaint  against a local judge (who had ordered two compulsory admissions - including a five-week period - before the main proceedings ) and against the head of the Mollath case on suspicion of serious deprivation of liberty ( Section 239 (3) No. 1 StGB) Clinic for Forensic Psychiatry at the Bayreuth District Hospital. As a justification, Strate refers, among other things, to a decision of the Federal Constitutional Court of October 9, 2001 on the FlowTex judgment and to a decision of the 1st Criminal Senate of the Federal Court of Justice of September 10, 2002.

See also

literature

Web links

Wiktionary: Deprivation of liberty  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Kristian Kühl in: Lackner / Kühl, StGB, 29th edition. 2018, StGB § 239, paragraph 8.
  2. ^ Wolfgang Joecks: Study Commentary StGB. 2010, p. 456.
  3. ↑ Kristian Kühl in: Lackner / Kühl, StGB, 29th edition 2018, StGB § 239, paragraph 2.
  4. ↑ Wessels / Hettinger: Criminal Law BT 1. Rd. 370
  5. ↑ Thomas Fischer : Criminal Code and ancillary laws , 55th edition, § 239, Rn 6.
  6. ↑ a b Rudolf Rengier: Criminal Law BT 2. § 22 No. 6th
  7. ↑ Federal Court of Justice (BGH): judgment of March 8, 2001, file number 1 StR 590/00 , NStZ 2001, p. 420.
  8. ↑ Wessels / Hettinger: Criminal Law BT 1. Rd. 372.
  9. ^ Wolfgang Joecks: Study Commentary StGB. 2010, § 239 No. 14th
  10. ^ Wolfgang Joecks: StGB. Section 239 No. 21st
  11. ↑ Rudolf Rengier : Criminal Law BT 2. § 22 No. 16.
  12. ↑ BGH: judgment of February 25, 1993, file number 1 StR 652/92 , NJW 1993, p. 1807.
  13. ↑ Jörg Eisele in: Schönke / Schröder Criminal Code , 30th edition 2019, § 239 marginal no. 6; Section 240 No. 9.
  14. ↑ BGH: Judgment of June 11, 1965, file number 2 StR 187/65 , BGHSt 20, p. 227.
  15. ↑ Kristian Kühl in: Lackner / Kühl, StGB, 29th edition 2018, StGB § 239 paragraph 8.
  16. ↑ Rudolf Rengier: Criminal Law BT 2. § 22 No. 13.
  17. ↑ Man was wrongly imprisoned for five years , Spiegel online, July 5, 2011.
  18. ^ BGH, judgment of July 10, 1957, file number 2 StR 219/57 , NJW 1957, 1446.
  19. ↑ Kristian Kühl in: Lackner / Kühl, StGB, 29th edition 2018, StGB § 239, paragraph 2.
  20. ↑ a b Kristian Kühl in: Lackner / Kühl, StGB, 29th edition 2018, StGB § 239 marginal no. 9.
  21. ↑ a b Brunhild Wieck-Noodt in: Munich Commentary on the StGB, 3rd edition 2017, § 239 marginal no. 44.
  22. ↑ Brunhild Wieck-Noodt in: Munich Commentary on the StGB, 3rd edition 2017, § 239 marginal no. 60.
  23. ↑ Brunhild Wieck-Noodt in: Munich Commentary on the StGB, 3rd edition 2017, § 239 marginal no. 62.
  24. ↑ Brunhild Wieck-Noodt in: Munich Commentary on the StGB, 3rd edition 2017, § 239 marginal no. 58.
  25. ↑ Brunhild Wieck-Noodt in: Munich Commentary on the StGB, 3rd edition 2017, § 239 marginal no. 58.
  26. ↑ BGH: Judgment of April 14, 1993, file number 3 StR 19/93 .
  27. ↑ In Austria, no one can hear you scream ( Memento from May 5, 2008 in the Internet Archive ), theaustralian.news.com.au, April 30, 2008, accessed on May 2, 2008
  28. ↑ Mother kept her own children like prisoners. spiegel.de. February 12, 2007, accessed January 13, 2013 .
  29. ↑ (PDF, 50 pages; 950 kB): Letter from Strate to Attorney General Hasso Nerlich (Nuremberg) of January 4, 2013