Formation of terrorist groups

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The formation of terrorist organizations is a criminal offense that is standardized in Germany in Section 129a of the Criminal Code. The offense was on 18 August 1976, the course of the fighting of terrorism included in the Criminal Code and introduced the term terrorist association as a legal concept a. The provision is part of a bundle of laws known in part as "Lex RAF", which was issued with special reference to the Red Army Faction (RAF).

The norm forms the center of the German criminal law for the protection of the state, covers both formation and membership and threatens a prison sentence of one year to ten years. Support and advertising can be punished with a fine and, in particularly serious cases, with a prison sentence of six months to ten years.

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The term terrorist organization describes organized associations of more than two people, which are designed for a longer period and work together to commit terrorist offenses. An “organized association” is a connection that is not merely “formed for the direct commission of a criminal act”. In addition, the case law of the BGH requires that the individual subordinates himself to the will of the whole and that the members feel as a unified association.

Compared to Section 129 of the German Criminal Code ( formation of criminal organizations ), the standard contains qualifications . They capture the education, membership, support, and promotion of a terrorist organization aimed at the perpetration of murder , manslaughter , genocide, or other serious crimes . The third paragraph of the provision, on the other hand, forms an independent offense in the event that the catalog of criminal offenses in paragraphs I and II goes beyond the provisions of Section 126 (1) StGB.

The terrorist purposes of the associations, which are recorded in the extensive second paragraph, include a determination and suitability of the numerous cataloged acts. First, the offenses must be “intended” to “seriously intimidate the population” or pursue other illegal purposes; secondly, it is required that they can cause significant damage to a state or an international organization. The feature of intimidation is facing the § 126 of the Criminal Code designed .

The ringleaders or backers of a terrorist organization are more heavily punished according to paragraph 4 of the provision. If the requirements of the first two paragraphs are met, a prison sentence of no less than three years can be recognized, while in the cases of the third paragraph the penalty range is one year and ten years.

The criminal law regulation of § 129a StGB does not contain a policy reservation in paragraph 1; if an association focuses on murder, manslaughter, kidnapping and hostage-taking, it is also terrorist when it comes to common criminal motives. (The same applies to genocide, crimes against humanity and war crimes, which themselves are usually counted under political crimes.) For other crimes, however, there is a kind of political reservation that is met if at least one of the crimes is intended to " to intimidate the population in a significant way, to unlawfully coerce or threaten an authority or an international organization or to eliminate or significantly impair the basic political, constitutional, economic or social structures of a state or an international organization ", and" by the nature of their inspection or their effects can seriously damage a state or an international organization. " In any case, perpetrators who cannot (personally) have any political motives can be punished for membership in or founding of a terrorist organization.

Background and development

The standard was inserted into the StGB on August 18, 1976 and amended by the Act to Combat Terrorism of December 19, 1986 (Federal Law Gazette I 2566). Paragraph 1 No. 3 was changed by the legislature as part of the sixth law reforming criminal law and thus adapted the catalog to the new numbering. No. 1 of the first paragraph was finally modified via the law introducing the International Criminal Code of June 26, 2002.

On June 13, 2002, the Council of the European Union issued a framework decision calling on the member states to amend the relevant criminal laws in view of the threats posed by international terrorism. The regulation was fundamentally changed by the law for the implementation of the framework decision ( BGBL I 2836) on December 22, 2003. In addition to an addition to the first paragraph, the second paragraph with the numbers 1, 3, 4 and 5 has been rewritten and the third paragraph, which provides for a lighter penalty range of six months to five years, has been newly inserted.

The provision criminals and terrorist groups abroad of § 129b has been inserted as part of the 34th Criminal Law Amendment Act. With it, the legislature reacted to the terrorist attacks on September 11, 2001 .

The regulation says: "Sections 129 and 129a also apply to associations abroad" , but restricts this and specifies the conditions of application. The foreign control was set to the Sauerland group applied for membership of the from Uzbekistan coming Islamic Jihad Union (IJU) has been convicted.

Less than three percent of the preliminary proceedings that were initiated in the 1990s on the basis of Section 129a StGB ended with a judicial judgment.

criticism

For Thomas Fischer , the regulation poses a number of problems, as it includes an only "elusive area of ​​personal (mis) ideas".

Since section 129a of the Criminal Code can be used to convict people who have not been proven to have committed any further criminal offenses apart from violating this section, critics criticized the criminalization of persons who were previously deemed to be innocent.

A conviction for membership in a terrorist organization can have consequences for the evidence in other criminal cases. Several RAF members were convicted of crimes in which their involvement was not proven in individual cases . It was argued that the defendants were members of the RAF and that the RAF publicly confessed to the crime, which was to be regarded as a confession of the defendants. The § 129a of the Criminal Code applies to some critics as " rubber paragraph ", being accused that be put under the pretext of fighting terrorism political activism over the "normal" penalties also punishable.

The Green politician Hans-Christian Ströbele wrote in 1998:

The federal German constitutional state went and goes overboard in the fight against its enemies from the RAF.

Critics see § 129a of the Criminal Code as an unfair prevention criminal norm which - as even the Federal Court of Justice (BGH) found in 1978 - establishes a criminal liability “well in advance of the preparation of specific criminal acts”. In part, the existence of such a procedural key norm in substantive law is classified as unconstitutional in jurisprudence.

The Federation of Democratic Scientists takes the view:

This rubber paragraph was created in order to enable research into mere "organizational activities" without a specific violation of a legal interest. Its main purpose is to intimidate political initiatives and to collect data. These remain stored even if - as in most cases - investigative proceedings according to § 129a later vanish into thin air.

The left , especially Ulla Jelpke , advocates the abolition of the 129a.

Case studies

Examples of the sometimes controversial application of the paragraph:

  • the preliminary investigation against the social scientist Andrej Holm
  • In December 2007 the journalist Heike Schrader was arrested
  • Ingrid Strobl's sentence of five years imprisonment, which was overturned after three years
  • a two-year investigation without any initial suspicion against eleven persons, some of whom were young people , using all available investigative measures . The State Security Senate of the Flensburg Regional Court and the Regional Court of Karlsruhe declared the large eavesdropping attack used in these proceedings to be illegal in principle and in terms of the type of execution.
  • the illegal observation of three people for around seven years without sufficient suspicion

in the context of the civil war in Syria :

  • At the end of November 2018, 14 Germans in Syria were investigated on suspicion of membership in a terrorist organization under Section 129a.

literature

  • Mark A. Zöller: Terrorism Criminal Law: A Handbook. CF Müller, Heidelberg 2009, ISBN 978-3-811-43921-4 .
  • Marc Lendermann: Prevention through Law - Can a Normative Reaction to Terrorism? , in: Humboldt Forum Recht 2009, pp. 163–175 ( online as PDF ).
  • 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. Duncker & Humblot, Berlin 2011, ISBN 978-3-428-13654-4 .

Web links

Individual evidence

  1. ↑ Federal Law Gazette I p. 2181 , PDF
  2. ↑ a b Defensive democracy or "conviction terror"? ( Memento from October 8, 2007 in the Internet Archive ) In: Politik-bildung-brandenburg.de.
  3. ↑ Thomas Fischer , § 129a, Formation of Terrorist Organizations , Rn. 4, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 928
  4. ↑ Quoted from: Thomas Fischer, § 129a, Formation of Terrorist Associations , Rn. 4, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 928
  5. ↑ Thomas Fischer, § 129a, Formation of Terrorist Organizations , Rn. 4a, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 928
  6. ↑ Thomas Fischer, § 129a, Formation of Terrorist Organizations , Rn. 2, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 927
  7. ↑ Thomas Fischer, § 129a, Formation of Terrorist Organizations , Rn. 2, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 927
  8. ↑ Thomas Fischer, § 129a, Formation of Terrorist Organizations , Rn. 2, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 930
  9. ↑ Thomas Fischer, § 129a, Formation of Terrorist Organizations , Rn. 1, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 927
  10. ↑ Thomas Fischer, § 129a, Formation of Terrorist Organizations , Rn. 1, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 927
  11. ↑ Thomas Fischer, § 129b, Criminals and Terrorist Organizations Abroad , Rn. 1, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 933
  12. ↑ Collection of texts at Freilassung.de
  13. ↑ Thomas Fischer, § 129a, Formation of Terrorist Organizations , Rn. 17, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 930
  14. ^ Article in vorwärts.ch on the delivery of Metin Aydin
  15. ^ Dark chapters of the Federal German judiciary at stroebele-online.de
  16. ↑ so z. B. 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 .
  17. ↑ Opinion of BDWi to the raids against G8 opponents
  18. ↑ 129a: Reading tour behind bars. Telepolis , December 13, 2007.
  19. ↑ Lock it up for now - The Federal Court of Justice is stopping the endless expansion of criminal regulations against terrorists . In: Der Spiegel . No. 21 , 1990, pp. 68-73 . ( online - The highest judges of the Federal Court of Justice (BGH) decided that the Düsseldorf colleagues had made it all too easy for themselves. They overturned the Strobl ruling on key points. It seems that nobody will be branded a terrorist that quickly. The new one Karlsruhe verdict, which criticizes the lax evidence of the lower court, is seen by criminal lawyers as a signal for the end of an era of excessive criminal prosecution against alleged terrorist supporters.). Retrieved July 5, 2010
  20. ↑ Andreas Förster: Controversial terrorist proceedings stopped. No suspicion of crime against young people from Bad Oldesloe. In: Berliner Zeitung . July 30, 2008, accessed June 22, 2015 .
  21. ↑ State security listens to "Wind of Change" . taz.de, August 30, 2008.
  22. ↑ BGH reprimands Germany's terror investigators. ( Memento from June 23, 2010 in the Internet Archive ) Tagesschau (ARD) , June 19, 2010.
  23. ^ "Captive German IS members in Northern Syria - printed matter 19/5336" dipbt.bundestag.de of November 21, 2018