Coercion of constitutional organs
The coercion of constitutional organs is a criminal offense which systematically to offenses against public authorities and in elections and referenda belongs. Coercion of constitutional bodies is regulated in Section 105 of the Criminal Code and is one of the political offenses .
Unlawful acts according to §§ 105, 106 StGB were not included in the Network Enforcement Act (NetzDG), although in the opinion of the Federal Council "threats against constitutional bodies and their members, against elections as a central feature of our democratic community or against the voters participating in them - are not uncommon The manifestations of hate speech in social networks are ". They are therefore not subject to the network providers' reporting and blocking obligations.
Offense
The wording of § 105 StGB reads:
(1) Who
- a federal or state legislative body or one of its committees,
- the Federal Assembly or one of its committees or
- the government or the constitutional court of the federal or state
Unlawfully compelled by force or threat of force not to exercise their powers or to exercise them in a certain sense is punishable by imprisonment from one year to ten years.
(2) In less serious cases, the penalty is imprisonment from six months to five years.
meaning
According to the unanimous opinion, § 105 StGB is a special provision if an act of coercion is committed against one of the constitutional organs named in the law . If the coercion is committed not against the constitutional body as such, but against an individual member of a constitutional body, the criminal offense of coercion of the Federal President and of members of a constitutional body ( § 106 StGB) is relevant.
In contrast to coercion, the threat of a sensitive evil is not enough to fulfill the objective facts. It must be a direct use of force or a threat with such violence. The (threatened) violence must exert such a pressure on the constitutional organ that it is forced to surrender to the demands of the perpetrator in order to cause serious damage to the common good or individual citizens. Correspondingly, it must be about violence that would also be suitable to fulfill the offense of high treason . Section 105 of the Criminal Code, insofar as it is relevant, has a blocking effect on the general coercive paragraph of Section 240 of the Criminal Code, so that recourse to Section 240 of the Criminal Code is out of the question if the objective offense of Section 105 of the Criminal Code is not fulfilled . However, criminal liability for breach of the peace is possible .
Because of the threat of punishment of at least one year, coercion of constitutional organs is a crime .
According to § 120 , para. 1, no. 5 GVG are first instance the Oberlandesgerichte responsible.
In order to prevent the coercion of one of the mentioned constitutional organs in advance, there is a ban miles regulation in the law on pacified districts for constitutional organs of the federal government and corresponding state regulations of some federal states . Public meetings are not permitted within the enclosed area .
literature
- Georg Bauer, Duscha Gmel: § 105. Coercion of constitutional organs. In: Criminal Code. Leipzig commentary . Volume 4: §§ 80 to 109k. 12th, revised edition. De Gruyter, Berlin 2007, pp. 356-370 (preview) .
Individual evidence
- ↑ Henning Ernst Müller : §§ 105 - 109k StGB (offenses against constitutional organs as well as in elections and votes and offenses against national defense), in: Wolfgang Joecks , Klaus Miebach (ed.): Munich Commentary on the Criminal Code. Vol. 3 §§ 80 - 184j, 3rd edition, Munich, 2017
- ^ Draft of a law to improve law enforcement in social networks (Network Enforcement Act - NetzDG) Statement by the Federal Council, BR-Drs. 315/17, pp. 8/9
- ↑ BGH, judgment of November 23, 1983 - Az. 3 StR 256/83 (S)
- ↑ Sebastian Müller-Franken : Should the law on the ban mile of the Hessian state parliament be repealed? LKRZ 2011, pp. 281–285
