The treason is an offense that is directed towards the violent overthrow inside.
In contrast to the high treason weakens treason their own state in its security against foreign states. The endangerment of the democratic constitutional state , on the other hand, is aimed at non-violent overthrow through internal measures with outside support.
Classic examples are the attempt at a coup or the attempt to assassinate the head of state . High treason must also be distinguished from the crime of aggression through the use of armed force against a state by persons who are actually able to control or direct the political or military action of a state.
Antiquity, Middle Ages and Early Modern Times
In Roman criminal law the perduellio (high treason) and the crimen maiestatis similar to it were punished with death as capital crimes. In the Roman Republic , decisions on high treason were not made on the basis of a private complaint by the people's assembly, but there was a magistrate investigation procedure, the so-called inquisitio, by the auxiliary officers ( quaestors ) appointed by the consul for individual cases , because there was a public interest in his persecution. This procedure was an official procedure , the aim of which, however, was not to research the material truth, but to establish the guilt or innocence of the suspect with the help of certain evidence (cleaning oath, oath of compassion, judgment of God).
After Quintus Scaevola Cervidius was punished on high and treason, who by deceit ( dolo malo someone) or sworn insurance had made to the detriment of the Roman state, in particular for military disadvantage of the Roman army to act.
The most important late antique law on the subject, the Lex Quisquis of Arcadius , was incorporated into the Codex Iustinianus . The high treason and majesty trials according to Byzantine law have not yet been systematically researched.
The Prussian General Land Law (PrALR) provided for perpetrators and participants in high treason the hardest and most terrifying physical and life punishment , that is, the death penalty , depending on the proportion of their malice and the damage caused . In addition, the property could be confiscated and civil rights were revoked. The generic term of crimes against the internal peace and security of the state and violations of awe of the state included offenses such as "provoking displeasure against the government", lese majesty or attacks on the sovereign's family and against state employees.
The German Imperium
In the penal code for the North German Confederation , which was adopted as the penal code for the German Reich by the law of May 15, 1871 , high treason and state treason were regulated in Sections 80 ff. Since January 1, 1872, the murder and the attempt of murder that have been committed against the Emperor, to their own sovereign, or during the stay in a federal state on the sovereign of that State, punishable as treason with death , all other High treason companies according to § 81 with temporary or life imprisonment ( penitentiary or imprisonment ):
After a failed revolver assassination attempt on the German Emperor Wilhelm I , Max Hödel was sentenced to death for high treason and executed in the summer of 1878. Karl Liebknecht was sentenced to one and a half years imprisonment in 1907 for preparation for high treason.
The regulations from the imperial era remained unchanged in the Weimar Republic and, if necessary, had to be adapted to the new circumstances through interpretation . For example, the Reich President took the place of the Emperor .
In addition to the Reich Criminal Code , the law for the protection of the republic was passed in 1922 . In Section 9 (2), this stipulated that foreigners should be deported if they were convicted of high treason. Although Adolf Hitler was convicted of high treason in 1924 after the failed Hitler-Ludendorff putsch , the law was not applied in his case. Gustav von Kahr , in his capacity as State Commissioner General, suspended the implementation of the law in September 1923.
According to the law amending the provisions of criminal law and criminal procedure of April 24, 1934, high treason was punishable by death under sections 80–87 of the RStGB . This included in particular the undertaking to forcibly incorporate the Reich territory in whole or in part into a foreign state or to tear off an area belonging to the Reich from the Reich, to forcibly change the constitution of the Reich or to deprive the Reich President, the Reich Chancellor or another member of the Reich Government of their constitutional power , as well as the appointment of such a company, the preparation or the public call for it, for example on the radio, as well as the production and distribution of printed matter, records or images with treasonable content. The People's Court was responsible for the judgment .
Prominent examples of such show trials are the proceedings against the Scholl siblings or those involved in the assassination attempt on July 20, 1944 . The judgments of the People's Court were overturned with the Law to Repeal National Socialist Injustice Judgments in the Administration of Criminal Justice (NS-AufhG) of 1998 and the victims were rehabilitated.
Development since 1945
Sections 80–87 RStGB were repealed by the Control Council Act No. 11 of January 30, 1946.
Federal Republic of Germany
West German political criminal law was essentially shaped by the First Criminal Law Amendment Act of August 30, 1951.
In 1951, high treason was revised in Sections 80–87 of the Criminal Code . In particular, in Criminal Code, the violent undertakings against the Reich territory and the Reich constitution (Sections 80-87 RStGB) were replaced by the constitutional order based on the Basic Law of the Federal Republic of Germany or the constitution of one of its countries . The treasonable attack was limited to the life and limb of the Federal President in Criminal Code, while the treasonable compulsion was restricted to violent influence on his constitutional powers. Under the impression of the Korean War and the preceding communist seizures of power in the Eastern Bloc states , attempts were made to use criminal law to fight against the existence of the Federal Republic of Germany and the constitutional order . This first affected the “Main Committee for Popular Inquiry”, which had organized a campaign for signatures aimed at the reunification of the two states. Because of its proximity to the KPD and SED, the Federal Court of Justice (BGH) classified the campaign as “unconstitutional”, but the BGH was unable to identify a highly treasonable undertaking in its 1954 judgment. While the provisions on high treason and treason were modeled on earlier German criminal law, the legislature broke new ground in 1951 with the criminal offenses created in the section "endangering the state". These criminal offenses were intended to capture the modern methods of overthrow, the methods of the Cold War . The reintroduction of the high treason paragraph was socially very controversial. Even beyond the members and sympathizers of the KPD, against whom the new regulations were primarily directed, there were lawyers who considered the legal norms to be too vague and indeterminate - for example, several contributions to the debate at the Frankfurt Jurists' Day in 1950. A "Defense Committee Movement" then organized legal aid in political processes.
The Great penal reform led to the Eighth Criminal Law Amendment Act of 25 June 1968, a constitutional advancement of the political criminal.
One of the main objectives was to the matters of national security criminal law with the greatest possible clarification as far as it appeared forensic politically acceptable to restrict indemnify particular the law of all that beneficial contacts between people from both parts of Germany and the necessary mental confrontation with communism hinder could. The focus was then on changes to the regulations against endangering the state and against treason. There was, however, no urgent legal and political need for a redesign of the high treason section. The new version served rather a coherent overall concept.
The provisions in §§ 81–83a StGB new version on high treason against the federal government, against a state and the preparation of highly treasonable companies against the federal and state governments corresponded completely in the description of the facts to the 1962 draft of the Great Criminal Law Commission (E 1962). In Section 81 of the new version of the Criminal Code, the territorial high treason against the federal government was expanded into high treason (Section 80 (1) No. 1 of the Criminal Code). In the case of high treason (Section 81 (1) No. 2 StGB), the protected legal interest is described as the "constitutional order" based on the Basic Law for the Federal Republic of Germany . This should express that the object of protection is the concrete state order based on the Basic Law, as it has taken shape in the constitutional organs and institutions, i.e. the constitutional reality . The same applies to high treason against a country. In contrast, the provision on territorial treason against a country, even if it should not be considered in practice, was retained in the form that only the territory of the countries in the inner area of the Federal Republic is protected (Section 82 (1) No. 1 StGB). Another highly treasonable attack on the existence of a country is directed against the broader existence of the Federal Republic and is therefore covered by Section 81 (1) No. 1. The new version only differed from the threats of punishment in the E 1962 insofar as the differences between the penalty systems of current law and the 1962 draft resulted in necessary differences.
With the law of December 18, 1987 and in connection with the abolition of the death penalty in the GDR from 1988, paragraph 2 was given the following wording:
By contract of May 18, 1990 on monetary, economic and social union , § 96 was suspended “until a new regulation”. By law of June 29, 1990 it was revised without reference to “the socialist state or society”. The GDR Criminal Code was repealed entirely by the Unification Treaty of August 31, 1990.
Persons who were convicted of high treason between May 8, 1945 and October 2, 1990 can be rehabilitated under the Criminal Rehabilitation Act if the act is said to have been committed for the Federal Republic of Germany, a state allied with it or for an organization, which is committed to the principles of a liberal constitutional order ( Paragraph 1 No. 1 Letter i StrRehaG).
Offense §§ 81–83a StGB
In the Federal Republic of Germany , high treason against the federal government or the states is regulated as a crime under the state protection offenses in §§ 81–83a StGB . The act is a corporate offense , where attempting is punished as much as completing it. Preparing high treason (Section 83 StGB) is also a criminal offense.
Protected legal interest is the physical and constitutional existence of the Federal Republic of Germany and the federal states. This includes the state unity of the Federation and the Länder, their territorial integrity and the sovereignty of the Federation under international law (high treason) in accordance with (1) StGB:
Means of crime are violence and the threat of violence and essentially correspond to the concept of violence in coercion .
High treason is not a special offense that can only be committed by Germans. Foreigners can also commit high treason, but this can be justified under international law . German criminal law also applies to high treason committed from abroad, regardless of the law of the crime scene ( No. 2 StGB).
As preparation according to § 83 StGB the objective promotion of the company according to §§ 81, 82 StGB counts. A concrete risk to the federal government or the state does not have to occur yet, but according to the case law, a certain danger should be necessary.
Because of the particularly high threat of punishment and the inclusion of the preparatory stage in the area of criminal liability, a “ golden bridge ” is built for the offender who already gives up attempted acts, according to Criminal Code, if they actively repent . A possible consequence is the waiver of punishment or the mitigation of the punishment according to Abs. 2 StGB. It is necessary, however, that the perpetrator, in addition to giving up the experimental and preparatory acts, at least voluntarily and seriously endeavors to avert, substantially reduce, or prevent the completion of the offense, which he has caused or recognized.
Anyone who credibly learns of a project or the execution of high treason at a time at which the execution or the success can still be averted and fails to report in good time will be treated according to failure to report planned Criminal offenses ), with imprisonment of up to five years or a fine (Section 138 (1) StGB). Only knowledge about the preparation of a treasonous company against a federal state is exempt from this notification requirement, in which case § , StGB ( membership in a terrorist organization ) apply in particular .(1) No. 2 StGB (
The Federal Criminal Police Office is responsible for prosecuting high treason against the federal government with effect from May 25, 2018 ( Paragraph 1, Sentence 1, No. 6a BKAG ). It has special investigative powers for telecommunications surveillance and online searches ( , StPO) as well as property confiscation ( StPO). According to Section 3 Article 10 Act, the intelligence services can monitor and record telecommunications and open and inspect mail items that are subject to letter or postal secrecy if there are actual indications that someone is planning, committing or has committed offenses of high treason. To prevent high treason, the Customs Criminal Police Office may transmit personal data to the authorities entrusted with police duties (Section 23d of the Customs Investigation Service Act ZFdG).
The Federal Prosecutor General at the Federal Court of Justice brings a public complaint at first instance before the competent Higher Regional Court for high treason ( (1) No. 2 GVG ). An appeal to the Federal Court of Justice is possible against the OLG judgment . Until 1969, the first and last instance jurisdiction of the BGH was given to high treason. According to (5) No. 5 of the Basic Law, the higher regional courts exercise federal jurisdiction in the first instance state security proceedings by way of organ lending . In the event of high treason against a federal state, the Federal Public Prosecutor can submit the case to the responsible state prosecutor's office ( (2) No. 1a GVG).
The Austrian penal code differentiates between high treason and high treason. High treason is possible against the federal government as well as against a state ( StGB):
According to the penal code, high treason against other states is also punishable. There, however, the range of penalties, at six months to five years, is lower than for highly treasonable companies against Austria ( Criminal Code).
A well-known historical trial for high treason is the socialist trial of 1936. It was not until 2018 that members of the so-called State Union of Austria were indicted and (not legally) convicted for the first time under this paragraph in the Second Republic .
If the act is directed against the state, there is federal criminal justice. A political decision is then required as to whether criminal prosecution should take place (authorization procedure).
In the United Kingdom of Great Britain and Northern Ireland are high treason ( High Treason several facts summarized) that the Treason Act decline from the 1795th In 1916, for example, Roger Casement was sentenced to death for high treason. Today, the murder of the monarch (or their spouse or their eldest son), waging war against the crown within the empire, or supporting the crown's enemies in times of war are considered high treason. The highest sentence since the formal abolition of the death penalty in 1998 has been life imprisonment .
Hanging, eviscerating, and quartering was the punishment for treason in medieval England.
- Georg Steinberg: High Treason , in: Albrecht Cordes, Heiner Lück, Dieter Werkmüller, Ruth Schmidt-Wiegand (Eds.): Concise Dictionary of German Legal History , 2nd Edition, 13th Delivery, Berlin 2011, Sp. 1064-1068
- Paul Johann Anselm Ritter von Feuerbach : Philosophical-juridical investigation into the crime of high treason . Erfurt, 1798.
- Volker Bützler: High treason - social foundations and history. In the S. State protection by means of apron criminalization. A study on high treason, terrorism and the serious acts of violence endangering the state Nomos, 2017, ISBN 978-3-8487-4086-4 , p. 173 ff.
- Walter Perné: On the development of the Crimen Maiestatis from the Republic to the end of the Julisch-Claudisches Haus diploma thesis, Vienna 2004
- Andre Krischer: The power of the process. English high treason trials 1554-1848. Administration, Procedure Decisions VVE, Volume 3, Münster 2017, ISBN 978-3-402-14659-0
- StGB DDR
- Andreas Austilat : Justice: Death Penalty in the GDR , Der Tagesspiegel , July 19, 2007
- Karl Härter , Beatrice de Graaf: From the crime of majesty to terrorism. Political crime, law, justice and police between the early modern period and the 20th century . Frankfurt am Main 2012, ISBN 978-3-465-04150-4 . Review by Désirée Schauz, H-Soz-Kult , May 14, 2013
- The right to resist. Resistance and Constitutional Reality , Bayerischer Rundfunk , January 4, 2017
- Carl Creifelds: Legal dictionary , 21st edition. 2014, ISBN 978-3-406-63871-8 .
- Kai Ambos : On today's understanding of the accumulation principle and process from a historical perspective , JURA 2008, p. 587.
- Andreas Graeber : Sources for the lecture “Roman Legal History” / High Treason and Treason , pp. 14/15.
- Detlef Liebs: The Codification of Roman Criminal Law in Breviar Alarichs II , 2013, Rn. 11.
- 9,8,5: The emperors Arcadius and Honorius to Eutychianus , Codex Iustinianus, Book IX, VIII. Title: Ad legem Iuliam Maiestatis / On the application of the Iulian law on majesty crimes .
- Byzantine High Treason and Majesty Trials , Wolfram Brandes' website at the Max Planck Institute for European Legal History , accessed on October 13, 2017.
- Hiram Kümper: High treason in Hildesheim. An unknown Magdeburg lay judge's verdict of 1544 about torture and the city enemy Berthold Rufoit , in: Hildesheimer Jahrbuch 78 (2006), pp. 149–153.
- Christian Strasser: The uprising in the Bavarian Oberland 1705 - Majesty crime or heroic deed? , Review by Peter Blickle , sehepunkte issue 6 (2006), No. 7/8.
- PrALR: Zweyther part. Twentieth title: About the crimes and their punishments ( memento of the original from July 24, 2017 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.
- Sections 93–95 PrALR
- §§ 149 ff. PrALR
- Albrecht von Bitter: The criminal law of the Prussian general land law of 1794 against the background of the history of ideas of its time , Baden-Baden 2013, p. 203 ff. Zugl .: Bonn, Univ.-Diss., 2012.
- Criminal code for the North German Confederation of May 31, 1870. Second part. Of the individual crimes, offenses and transgressions and their punishment / first section. Treason and treason, §§ 80 ff.
- § 80 RStGB in the version valid since January 1, 1872, lexetius.com, accessed on October 17, 2017.
- (First) Law for the Protection of the Republic of July 21, 1922, documentArchiv.de, accessed on October 17, 2017.
- Heribert Ostendorf : Political Criminal Justice in Germany , Federal Center for Political Education / bpb, April 27, 2010.
- Walter Ziegler : Adolf Hitler's expulsion from Bavaria , Historisches Lexikon Bayerns , May 11, 2006.
- Justice / Weimar: right right , Der Spiegel , April 17, 1967.
- Law amending criminal law and criminal procedure of April 24, 1934, documentArchiv.de, accessed on October 13, 2017.
- Kirsten Schulz: The White Rose before the People's Court , bpb, April 20, 2005.
- Monika Dittrich: Stauffenberg assassination: How traitors became heroes , Deutsche Welle , July 20, 2014.
- BGBl. I p. 739
- Sarah Langwald: Communist persecution and legal resistance: the "Defense Committee Movement" and the "Main Committee for Referendum" , in: Arbeit - Bewegungs - Geschichte , Issue I / 2018, pp. 92-109.
- Draft of a law amending the penal code , motion by the SPD parliamentary group, BT-Drs. V / 102, p. 4.
- Federal Law Gazette I p. 741
- Draft of an Eighth Criminal Law Amendment Act , BT-Drs. V / 898, p. 15 f.
- Draft of a Criminal Code (StGB) E 1962 , BT-Drs. IV / 650 of October 4, 1962.
- Written report of the special committee for criminal law reform on the draft of a law to amend the penal code introduced by the parliamentary group of the SPD and on the draft of an eighth Criminal Law Amendment Act introduced by the federal government , BT-Drs. V / 2860, p. 3.
- BVerfG, decision of February 3, 1959 - 1 BvR 419/54 , Rn. 15th
- Draft of an Eighth Criminal Law Amendment Act , BT-Drs. V / 898, p. 17.
- GBl. I p. 526, appendix. I.
- Criminal Code of the German Democratic Republic -StGB- of January 12, 1968 , verfassungen.de, accessed on October 16, 2017.
- Art. 1 § 4, Art. 13 Paragraph 1 of the Act on the Restructuring of the Federal Criminal Police Office of June 1, 2017, Federal Law Gazette I 1354
- Hans-Ullrich Paeffgen : Is it advisable to change / expand the legal regulations on the competence of the Federal Public Prosecutor's Office for public prosecutor's investigation in the area of right-wing extremist, xenophobic and / or anti-Semitic crimes? , Report on behalf of the Federal Ministry of Justice , 2011, p. 9 ff.
- derstandard.at - "State objectors" are on trial in Graz
- Long prison sentences for "enemies of the state" in Graz - derStandard.at. Retrieved January 25, 2019 .
- Martin Rath: traitors and national hero , LTO , October 2, 2016th