Josephine Criminal Law

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The Josephine Criminal Law ( General Code of Crimes and the Same Punishment , short: Josephina , Josefina or StG 1787 ) was a criminal law issued by Joseph II for the hereditary lands of the Habsburgs. It was in force from January 1, 1787 to 1803. It consisted of two separately numbered parts ("criminal crime" and "political crime").

history

The Josephine Criminal Code replaced the Constitutio Criminalis Theresiana , which for the first time brought a uniform criminal law, but lagged behind legal developments when it was published. The procedure was settled the following year. On the orders of Joseph II, the preparatory work began in 1781 and lasted six years. The Compilation Court Commission of the Supreme Judicial Authority was involved in the drafting. The first part of the law was completed in 1783. Joseph von Sonnenfels had a great influence on the creation of the criminal law through his teaching activities at the University of Vienna and his students, his publications and directly through his relationships with the respective rulers. There is no clarity about a direct involvement in the second part, but it is certain that he wrote the second part of the direct successor, the StG 1803. It was promulgated by patent on January 13, 1787 (JGS 611) as a general code of law on crimes and the same punishment and came into force on the same day. The announcement patent was published in the Wiener Zeitung on February 7, 1787.

For the first time, the entire criminal law was no longer regulated in a single neck court order, but divided into this law, the general criminal court order that followed the following year , which regulated the procedure ( inquisition principle ), and the provision on criminal proceedings . On the one hand, this was due to the different duration in the preparation and the importance that was attached to the individual parts. Legal dogmatic considerations may not have played a role. But the new criminal law of the Grand Duchy of Tuscany , which was enacted on November 30, 1786, probably also had an impact on the date of publication of the criminal law. With this, the Tuscan Grand Duke Leopold I (later Emperor Leopold II) was a little more than a month ahead of his brother in the formal abolition of the death penalty.

Soon after Leopold II took office in 1790, he set up a reform commission. Due to his untimely death in February 1792 and under the influence of the foreign and domestic political threats to the state that arose in the wake of the French Revolution , the overall reform that had been initiated did not go in the direction originally taken.

In July 1792 the "Viennese Jacobins " were arrested, who supposedly had planned a conspiracy. It was rather a democratic circle of supporters of the Josephinian reforms, an opposition to the policy of standstill and wanted to intimidate the anti-reform nobility. However, the death penalty was abolished in the ordinary process, and so only Lieutenant Franz Hebenstreit could be sentenced to death by a court martial and executed on January 8, 1795. Francis II reintroduced the death penalty for high treason with the “criminal patent” on January 2, 1795 , but the lawyers bravely opposed its retroactive application of it to civilians. Andreas von Riedel was sentenced to sixty years and explicitly excluded from an amnesty in 1802. Similar sentences were imposed on the other people.

In the subsequent criminal law of 1803, the death penalty was again provided for in the ordinary process for certain other serious crimes.

Quirks

The work was not a revolutionary one, but a future-oriented, progressive one. The most striking improvement was that for the first time in the Habsburg hereditary lands, the death penalty was abolished in ordinary criminal proceedings and was only provided for in the martial law (§ 20). Later, in 1803, it was reintroduced for a few specific offenses. The penalties for mutilation also came to an end. With Joseph II there was instead prison with public, hard, public work such as ship pulling as punishment, which, however, in the end mostly amounted to a prolonged death penalty. The focus of these considerations was on what is more useful to the state and that such punishments are far more deterring than death.

Inhuman hardships in punishment from the previous period such as long prison sentences, corporal punishment, public pillory, and blacksmithing were retained, even if some were restricted in relation to female prisoners. The sentences were divided into three groups: temporary sentences (one month to eight years), prolonged sentences (eight to fifteen years) and lengthy sentences (fifteen to one hundred years). These groups were divided into degrees. A temporal sentence in the first degree meant no less than a month, but also no more than five years. In the event of a lengthy second degree sentence (30–100 years), public branding could also be ordered.

The principle of legality was realized for the first time and was subject to the maxim Nullum crimen sine lege , nulla poena sine lege (“No crime, no punishment without law”), formulated later by Anselm von Feuerbach in 1801 .

“Not every illegal act is a criminal crime, or a so-called throat crime; and only those unlawful acts are to be regarded and treated as criminal offenses which are declared as such by the current criminal law. "

- StG 1787 I § 1 - Justizgesetzsammlung 611/1787, p. 8

This also applied analogously to political crimes and is to be seen as a decisive step towards more rule of law. All the privileges of the nobility have also disappeared; they are not even mentioned. It was considered hostile to the nobility and in practice it had an effect.

The law differentiated between criminal and political crimes and was therefore divided into two parts, whereby the “decent boundary line” announced in the announcement was not adhered to from today's perspective. Offenses against marriage and the family, as well as those against morality, were fairly scattered. The criminal courts were responsible for criminal crimes. For political crimes, the political authorities (administrative authorities). The second part mainly contains those offenses for which the perpetrator's guilt was classified as lower.

There had to be malicious intent to commit a criminal offense. There were also six reasons for excuse: mental weakness, temporary confusion, accidental intoxication or other confusion, childhood (before the age of 12), irresistible coercion and error. The regulation of the responsibility and incapacity was the responsibility of medicine. It was also the guilt of the perpetrator that was decisive and not the nature of the victim. Thus crimes against "nonsensical", children, sleepers, criminals and those who demanded to be harmed themselves were possible. Even suicide was ff I. §§ 123rd offense and who showed no remorse before death or was confused did not get a proper burial. If he repented before his death, he was given a proper grave, but had to be buried unaccompanied. If he survived the act, he was sent to prison for an indefinite period of time, further attempts made impossible and only released again when he understood that self-preservation is his duty and improvement can be expected. Sexual innocence was no longer necessary to punish rape , and aiding and abetting was also punishable.

Duels (I, §§ 105 ff.) Were not viewed by Joseph II as a matter of honor, but as an act of revenge. Even "standing up for an argument" was considered a crime and if the challenged person died it was punished as a joint murder. The seconds and all others who contributed to the realization or even threatened someone if they refused were punished. But you couldn't master the duels. In Josephine times and shortly thereafter, those involved were mostly still held accountable. Then they gained weight again. Only two proceedings from the post-Josephinian era are on record and the other registers up to 1850 do not contain a single proceeding. The criminal law was simply no longer applied.

In relation to the Theresiana, the religious offenses are modest and magic is no longer mentioned. Blasphemers were to be sent to the madhouse until they were certain of improvement. At that time, however, these were organized little differently than prisons and the inmates were more custody than cared for. The punishment for disrupting the worship service of the ruling ( Roman Catholic ) religion or a religion tolerated according to the tolerance patents was modern .

Possible penalties

Part I: Criminal Crimes

The punishment is carried out by a criminal court. As a punishment, only the penalties specified in the law and no existing local regulations could be used or penalties could be devised (I. Sections 12, 19). The judge was also expressly limited to the options stipulated in the law, but aggravating reasons such as malice or facilitating reasons such as youth had to be taken into account. (I. § 13-14).

Basic types of penalties (I. Sections 21, 25, 29, 32, 33)
punishment description
Forging (Can be tightened depending on the nature of the perpetrator) Heavy prison (hard or heaviest), tightly chained so that only the mobility that is absolutely necessary is given, public punishment every year, invalidity of every will for the duration of the sentence that was decreed after the arrest
Public Labor Prison (can be tightened depending on the nature of the perpetrator)
Prison alone (can be tightened depending on the nature of the perpetrator)
public stick , karbach and rod pranks either on its own or as a tightening, the number and repetitions are depending on the nature of the criminal at the discretion of the judge, but a maximum of 100 pranks at once
Exhibition on the Schand stage in a spacious public place on three consecutive days, locked in iron and guarded for one hour and with a plaque hanging around the chest on which the crime is described
Penalties in terms of duration (I. Sections 22-24)
designation Duration additive
tedious in the second degree 30 years - 100 years additional public branding with the sign of the gallows on both cheeks possible (→ "secret branding" as a tightening of punishment)
tedious in the first degree 15 years - 30 years
persistent in the second degree 12 years - 15 years
persistent in the first degree 8 years - 12 years
temporally in the second degree 5 years - 8 years
temporally in the first degree 1 month - 5 years
Types of prison sentence (in each case with proportionate work, I. Sections 26–28, 30)
designation description
heaviest prison Ring around the middle of the body so that it can be attached to the designated location, in addition, heavy irons can be put on if necessary. Lie down only from boards, as food only water and bread. Any meeting or conversation with strangers, relatives or acquaintances is prohibited
hard prison like the heaviest prison except: only less heavy iron, two days a week an additional half a pound of meat
milder prison lighter irons, but in such a way that they can only be removed with cunning or force, better food, but only water for drinking. Meetings and discussions with acquaintances or relatives upon prior notification. Depending on the circumstances, this punishment can also be increased temporarily for a few days a week by fasting with just one pound of bread.
Further possible tightening of penalties (I. Sections 34–35, 39)
designation description
public announcement of the crime (only if expressly noted in the law) This is done by announcement, according to the respective national ordinance, the name, a recognizable description, the crime committed and the awarded sentence
Confiscation of property (only if expressly stated in the law)
Loss of nobility
secret branding (Only for foreign criminals who are expelled from the country.) The sign of the gallows on the left side of the hollow body. (→ "public branding" in the penalty framework "lengthy in the second degree")
For every guilty criminal (I. § 36-38)
description
Loss of fruit enjoyment of his property from the time the judgment is pronounced until the end of the sentence. Anything that is not used as a proper maintenance for his wife and children flows into the criminal fund and is only to be used for the entertainment of the detainees and the happy parties.
In the event of death during the sentence, the inheritance only ever falls to the legally stipulated heirs, regardless of whether a will is available and at what time it was drawn up.
In the case of aristocrats, it should be noted in the judgment that they lose all privileges that are applicable according to national regulations. However, this does not extend to his wife and the children conceived before the judgment.

Part II: Political Crimes

The punishment is imposed by the political authority (II. § 6). In the event of a simultaneous criminal offense, that court has jurisdiction and the punishment is tightened (II. § 7). Here, too, you are bound by the specified penalty framework, but depending on the circumstances, you have a margin of appreciation (II. § 8). The punishment is to be applied solely to the perpetrator and does not release him and his heirs from making reparations to the victim (II. § 9)

Possible types of penalties (II. §§ 10, 11, 12, 18)
designation description
Punishment with beating alone or as a tightening, always in public, lying on a bench, only on the buttocks and not on the back or thighs, with the man no more than 50 hazelnut stick strokes at once, with the woman no more than 30 carbachian strokes with the Bull pizzle or with rods
Exhibition on the Schand stage one to three times for an hour at noon, in a public place with space for the crowd on a raised stage, with bare head, with a plaque around the neck, locked in iron and guarded
Arrest see below
public work in iron
Abolition from a certain place can only cover a single place; banishment from the place of birth or from a place where the perpetrator has resided for at least 10 years can only take place in the case of sodomy and same-sex fornication (II. § 71) or pimping (II. § 73)
Types of arrest (II. Sections 13, 14, 15)
designation description
strict arrest Iron on the feet, only boards to lie on, visits only under supervision, only water for drinking, adequate work
mild arrest no iron, if he can get the food on his own or with the support of relatives or friends, the occupation is left to him, bed clothes and straw sacks are prohibited;
in the case of nobles, who hold a public office or of a businessman with an otherwise irreproachable reputation, the sentence can be commuted to house arrest; either with a simple promise or a guard in front of the house; if he does not adhere to it he has to be arrested for the whole time
Possible tightening by fasting with water and bread.
Duration of arrest or public work (II. § 17)
designation Duration
temporally 1 day - 1 month
persistent 1 month - 1 year
When someone holds an office or loses his food supply during prolonged imprisonment, severity can be achieved more through tightening than through duration.

Classification

The chapter headings are kept in the historical original spelling.

  • First part. Of criminal crimes and criminal penalties.
    • First chapter. From criminal crimes in general. (§§ 1–9)
    • Chapter two. Of criminal penalties in general. (§§ 10–39)
    • Third chapter. Of crimes that are directly related to the sovereign and the state. (§§ 40-88)
    • Chapter Four. Of crimes that are directly related to human life and physical security. (Sections 89–125)
    • Fifth chapter. Of the criminal crimes which are directly related to honor and freedom. (Sections 126–147)
    • Sixth chapter. Of criminal crimes that relate to property and rights. (Sections 148–177)
    • Seventh chapter. Of the extinction of crimes and punishments. (Sections 178-184)
  • Part two. About political crimes and political punishments.
    • First chapter. Of political crimes in general. (§§ 1–5)
    • Chapter two. Of the political punishments in general. (§§ 6-18)
    • Third chapter. Political crimes that endanger or harm the life or health of fellow citizens. (§§ 19–28)
    • Chapter Four. Of the political crimes that offend the property or rights of fellow citizens. (§§ 29-60)
    • Fifth chapter. Of the crimes that lead to the corruption of morals. (§§ 61–82)

See also

Web links

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  1. Wiener Zeitung, Wednesday, February 7, 1787 p. 1 ff , facsimile at anno.onb.ac.at