Thirty-ninth Criminal Law Amendment Act
|Title:||Thirty-ninth Criminal Law Amendment Act - Sections 303, 304 StGB|
|Scope:||Federal Republic of Germany|
|Legal matter:||Criminal law|
|Issued on:||September 1, 2005 ( BGBl. I p. 2674 )|
|Entry into force on:||September 9, 2005|
|Please note the note on the applicable legal version.|
The thirty-ninth Criminal Law Amendment Act - also known colloquially as the Graffiti Combat Act - is a German law from 2005 amending the Criminal Code . Sections and supplemented in order to be able to prosecute and punish the spraying of graffiti as damage to property in the future .
Initial situation and legislation
In Germany, illegal graffiti caused economic damage of 200 to 500 million euros annually. The sprayers made themselves liable for damages , but not always punishable . A property damage , , StGB, namely continued engagement in the tangible substance or an impairment of the function advance ( BGHSt 29, 129). If the intended function was not exactly in a certain appearance, as is the case with monuments, traffic signs, etc., the case law did not recognize such an intervention in the case of removable spray-ons, since a further interpretation would exceed the wording limit (see prohibition of analogy ).
However, the courts left it sufficient that the physical substance was not injured until it was removed. This jurisprudence caused both practical (problems of proof, expert costs) and dogmatic (occurrence of success and thus the time of completion) difficulties. If the graffito did not impair the intended function of the sprayed item and did not damage the physical substance (even if it was only in the case of the removal of the graffito), there was no property damage.
This fact was seen in part as a criminal liability loophole and led to various draft laws. After several proposals had been rejected in 2000, the German Bundestag, on the recommendation of the Legal Committee, passed the one in the BT-Drs. 15/5313 printed draft with the votes of the SPD , Bündnis 90 / Die Grünen and CDU / CSU against the votes of the FDP .
The following paragraph has been added to Section 303 of the Criminal Code:
- Likewise, anyone who unauthorized changes the appearance of a foreign object, not only insignificantly and not only temporarily, is punished.
Damage to property is also committed by anyone who changes the appearance of an object without the permission of the authorized person. However, this change must be significant so that painting with chalk does not damage property. Likewise, the change must not be short-lived. The scope of the new regulation has not yet been clarified by the highest court. In particular, it is unclear whether the cases that were previously punishable because the substance violations during the removal were attributed to the perpetrator continue to fall under paragraph 1 or the new paragraph 2. It is also controversial as to what significance the “unauthorized” element of the offense has and what effect the change has on paragraph 1, in particular on the question of whether the consent is a justification or if the offense does not apply.
14th legislative term
- Draft law amending the Criminal Code - Graffiti Fighting Act . BT-Drs. 14/546. ( Internet reference ; PDF; 126 kB)
- Draft law for the improved protection of property . BT-Drs. 14/569. ( Internet reference ; PDF; 125 kB)
- Draft of a ... Criminal Law Amendment Act - Graffiti Combat Act . BT-Drs. 14/872. ( Internet reference ; PDF; 125 kB)
- Recommended resolution and report by the Legal Affairs Committee . BT-Drs. 14/2941. ( Internet reference ; PDF; 92 kB)
- Second and third reading of the German Bundestag . Plenary minutes 14/95, pp. 8847-8860. ( Internet reference ; PDF; 1.9 MB)
15th legislative term
- Draft law for the improved protection of property . BT-Drs. 15/63. ( Internet reference ; PDF; 263 kB)
- Draft law amending the Criminal Code - Graffiti Fighting Act . BT-Drs. 15/302. ( Internet reference ; PDF; 247 kB)
- Draft of a ... Criminal Law Amendment Act - Graffiti Combat Act . BT-Drs. 15/404. ( Internet reference ; PDF; 234 kB)
- Draft of a ... Criminal Law Amendment Act - §§ 303, 304 StGB . BT-Drs. 15/5313. ( Internet reference ; PDF; 239 kB)
- Draft of a ... Criminal Law Amendment Act - Graffiti Combat Act . BT-Drs. 15/5317. ( Internet reference ; PDF; 268 kB)
- Recommended resolution and report by the Legal Affairs Committee . BT-Drs. 15/5702. ( Internet reference ; PDF; 266 kB)
- Second and third reading of the German Bundestag . Plenary minutes 15/18, pp. 17184-17192. ( Internet reference ; PDF; 979 kB)
- Uwe Wesel: Thinking about graffiti . In: New legal weekly . Year 1997, issue 30, p. 1965.
- Günter Mersson: Exemption from punishment for graffiti smearers - steps in the wrong direction . In: New journal for tenancy and housing law . Year 1999, issue 10, pp. 447–448.
- Norbert Eisenschmid: New penal norms for property damage: The Graffiti-Fighting Act . In: New legal weekly . Year 2005, issue 42, pp. 3033-3035.
- Hoffmann, Josef: NJW 1985, 237.
- Jörg Wünschel: The Graffiti Fighting Paragraph - A club blow by criminal law against the constitutionally guaranteed freedom of art? . In: KUR-Journal Volume 2008 Issue 2, 42 - 45.
- Thirty-ninth Criminal Law Amendment Act ( Federal Law Gazette I p. 2674 ) (PDF file; 56 kB)