Perversion of the law

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The violation of the law under German law the intentional misapplication of the law by judges , officials or referees in the management or resolution of a case in favor or against a party .

The criminal liability of perverting the law is regulated in Section 339 of the Criminal Code. Perversion of justice is a crime that carries a minimum of one and a maximum of five years imprisonment . Since the conviction to imprisonment of at least one year inevitably results in the loss of office ( Section 24 No. 1 DRiG ), a conviction for perversion of the law usually leads to the fact that the judge or public prosecutor convicted for perversion of justice loses his office by operation of law, if not in exceptional cases a postponement of the penalty framework can be applied (as in the case of perversion of the law by omission according to §§ 13 , 49StGB). As always with a crime, the attempt is punishable ( § 23 StGB). Directly protected legal interest is the national administration of justice, but the legal interests of citizens subject to the law are protected to the extent that they are directly disadvantaged by a perversion of the law.

The purpose of the evasion offense is to establish the judge's liability under criminal law and thus the necessary counterweight to granting judicial independence. Section 339 of the Criminal Code thus subjects the judge to self-control through the judicial authority he co-represented and to the heaviest, because criminal liability. However, there is also the risk that judges may be disciplined with perverse law accusations and compelled to behave in a certain way. Until the reunification , the perversion of justice led a “shadowy existence”, as Nazi perpetrators were not persecuted or at least not tried and criminal proceedings against German judges were rare. After the end of the GDR , the regulation played an important role in overcoming the SED injustice.

history

In the German-speaking countries, regulations on infraction of the law were first found in the penal codes for Württemberg from 1839, for Braunschweig from 1840 and Hanover also from 1840. The provision of current German law originally goes back to Section 314 of the Prussian Penal Code from 1851 . According to this provision, a civil servant was punished with prison for up to 5 years, "who is guilty of injustice intentionally in the management or decision-making of legal cases, in order to favor or disadvantage a party." The corresponding regulation - now with the wording "Flexion of the Laws “- was adopted in 1870 as § 336 in the Criminal Code for the North German Confederation and then in 1871 in the Reich Criminal Code . The first criminal law reform act of June 25, 1969 replaced the prison sentence by the uniform prison sentence. The current version of the law comes from the EGStB of March 2, 1974. A reformulation in comparison to the previous version of the law has made it clear that deliberate or knowledgeable action is not necessary, conditional intent is sufficient. The reason for this reformulation was that the BGH, contrary to the intentions of the legislature , had restricted the necessary intent to direct intent. In addition, judges and other officials were named as possible perpetrators instead of the former official . With the announcement of the new version of the Criminal Code of November 13, 1998, the number was renumbered from § 336 StGB to now § 339 StGB. The term “bending the law” is of course older. It occurs in Friedrich Schiller's Wilhelm Tell and was used by Martin Luther in various places in his translation of the Old Testament ( 2 Mos 23,6  LUT ).

definition

Definition of the Federal Court of Justice

According to the constant jurisprudence of the Federal Court of Justice , not every incorrect application of the law constitutes a flexion of the law within the meaning of Section 339 of the Criminal Code. Only the violation of law as an elementary violation of the administration of justice should be punishable. A public official who deliberately and seriously distanced himself from law and order would commit perversion of the law. The mere unjustifiability of a decision does not justify a perversion of the law.

The BGH justifies this restrictive interpretation of the facts with the need to protect judicial independence, with the argument that it must be prevented that a legally decided case is re-examined by the judiciary via the detour of criminal proceedings due to perversion of the law, and finally with the high threat of punishment, which presupposes a particularly high worthless content of the act. In the opinion of the Federal Constitutional Court, the restrictive interpretation of the facts preserves the independence of the judge, because it ensures that a conviction is not already due to a violation of the law - even if it is conditionally deliberate - but only if the judge is not alone in making his decision Law and justice oriented.

Criticism of the definition of the BGH

In the legal literature, perversion of the law is mostly less narrowly defined. The BGH's definition is criticized for the fact that the BGH's formula is vague and that the element of the “conscious” breach of law is out of place in the objective factual situation; there is also a contradiction if the BGH demands a “deliberate” breach of law on the one hand and on the other with intent, however, let conditional intent suffice. The justification of the BGH that the narrow interpretation of the facts of perverse law is necessary to protect judicial independence and to prevent that legally concluded proceedings are reopened via the detour of criminal proceedings for perversion of justice is not convincing: a breach of the law cannot guarantee subject to judicial independence, a protection of the judiciary against too frequent claims is not intended by § 339 StGB.

It is also criticized that the judicature restricts their criminal self-control quite considerably. They leave clear and deliberate violations of the law by the judges unpunished to an unclear extent. The effort to limit the scope of the criminal provision as far as possible is unmistakable. This restrictive interpretation of the law goes to the point of illegality. Section 339 of the Criminal Code does not primarily serve to secure judicial independence, as the BGH has asserted, but conversely aims at securing and safeguarding the responsibility of the judge and thus at judicial respect for law and justice ( Art. 20 para 3 and Article 97, Paragraph 1 of the Basic Law ). Because judicial freedom must have a limit where independence degenerated into irresponsibility, where the will of the legislature was even deliberately disregarded. The case law has loosened its constitutional link to the law. Section 339 of the Criminal Code has been deprived of its “central constitutional position”. Because the limitation of the facts is considerable and at the same time unpredictable. The number of convictions can therefore be counted on one hand.

This criticism is countered by the fact that in view of the seriousness of the legal consequences, a conviction for perversion of the law in the case of violations of minor importance, which ultimately do not turn out to be unjust, could be inappropriate. Against the resulting demand for a reduction in the range of punishments and a downgrading to an offense would be argued that a downgrading of the perversion of the law to an offense would not do justice to the legal peace function of the jurisprudence. No citizen can be expected to have his case decided by a judge with a criminal record for perversion of the law.

The definition of the BGH is occasionally found in the legal literature. Losses of legal assessment certainty are often structural characteristics of modern legislation. In the legal reality, judges are increasingly expected not only to interpret the law, but also to provide further legal training . It is therefore not sufficient to make the unjustifiability of a decision an objective element of a perversion of the law. An accusation of perversion of the law is not an acceptable measure for correcting errors in a constitutional state : All people, including judges, make mistakes, and charges of perversion of the law, which in retrospect turn out to be unfounded, lead to uncertainty among the judges. However, this is not in the interests of those seeking the right.

Other definitions

Various attempts have been made in the legal literature to define what constitutes perversion of the law.

According to the so-called objective theory prevailing in literature, the objective fact of perversion of the law is fulfilled when the judge objectively applies the law incorrectly and it is a clear violation of the law (i.e. different acts or interpretations of the law are not justifiable).

According to the so-called subjective theory, perversion of the law only occurs when the application of the law is in conscious contradiction to the conviction of the judge.

According to a third theory, perversion of the law consists in the violation of the judge's dutifully obtained legal opinion.

details

Perpetrator

Perversion of the law is a so-called special offense , i.e. a crime that not everyone but only a certain group of people can commit. First and foremost, the judge comes into consideration as the perpetrator , namely not only professional judges but also honorary judges ( Section 11 (1) No. 3 StGB). Other public officials within the meaning of Section 11, Paragraph 1, No. 2 of the Criminal Code can also be perpetrators of perversion of the law, provided they have to direct and decide a legal matter. Legal clerks and public prosecutors are to be counted among such officials . When defining whether another public official can be included in the group of perpetrators of perversion of the law, it is not the official position or designation that is decisive, but the specific function of the public official. A corresponding function can be assumed if the public official is to decide independently according to his function, however, actual freedom from instructions is not required. This can be presumed in cases in which the official is entitled to a judicially non-verifiable margin of appreciation on the part of the offense. A tax official who has to set taxes, on the other hand, cannot be considered as a perpetrator of a perversion of the law, since the taxation process is too little formal and legally formed. According to the wording of the law, however, an arbitrator within the meaning of Book 10 of the Code of Civil Procedure can also be a perpetrator of a perversion of justice . Members of the Federal Examination Office for Writings Harmful to Young Persons or in state examination commissions can also be considered as officials. An employee of a fine authority who makes a substantive decision within the scope of the decision-making options granted to him can also be a perpetrator of perversion of the law.

Offense

Action is the wrong application of the law. Under law is to be understood first of all the statutory law, then also the customary law and the contract law created by the parties (for example general terms and conditions or collective agreements ). According to the prevailing view, so-called superpositive law (natural law) is also law within the meaning of Section 339 of the Criminal Code, whereby the application of the law pending act due to violation of superpositive law only comes into consideration if positive law turns out to be manifestly legal injustice by disregarding human dignity not even striving anymore.

A possible offense is the violation of substantive law (e.g. incorrect application of law, application of invalid laws or non-application of valid laws), but also the violation of procedural law (e.g. failure to collect evidence, exceeding of deadlines, violation of the principle of acceleration). The deliberate withholding of legally relevant facts and the deliberately false determination of the facts also represent a perversion of the law.

In the event of a breach of procedural law through omission (Section 13 (1) of the Criminal Code), perversion of the law is generally only possible if the act is clearly required, in particular if a mandatory provision is violated (e.g. Section 115 of the Code of Criminal Procedure), under special circumstances Immediate action is imperative, for example to interrupt an otherwise occurring statute of limitations or if the hesitant processing is based on irrelevant considerations to the advantage or disadvantage of one party. If a procedure is otherwise merely delayed , there is usually no legal infraction, even if the delay was unjustifiable. In the event of a violation of procedural law, when examining whether there has been a violation of the law, in addition to the extent and severity of the violation of the law, the consequences of the violation of procedural law for the party, the extent to which the decision remained materially legally compliant, and what motives are important the judge let himself be guided.

Recently it has been discussed to what extent the deliberate disregard of statutory provisions when reaching an agreement in criminal proceedings constitutes an act of perversion of the law. In the opinion of Volker Erb , this is not the case if the specific provisions on understanding are disregarded, but if the defendant's legal position is noticeably impaired or the state's right to punishment is noticeably reduced. He names an incorrect guilty verdict as a group of cases, a punishment that is obviously not within the scope of what is commensurate with the act and guilt, the failure to take a necessary measure , and also the use of the " sanction scissors " to intimidate the accused in order to induce him to make a confession which - agreed - Conviction of the accused on the basis of a meaningless "formal confession" or on the basis of a confession that the court does not examine for internal conclusiveness and possible contradiction to the file content, as well as the thwarting of the verifiability of the - based on an understanding - decision by the fact that the Agreement is made secretly so that an agreed waiver of legal remedies does not fail due to § 302 sentence 2 StPO . Thomas Fischer argues similarly : Anyone who concludes informal "deals" beyond the legal regulations specified by the Federal Constitutional Court is bending the law. This applies in particular to the disregard of the transparency and notification requirements, the compulsion to waive legal remedies and the falsification of the minutes of the main negotiation .

The act must be committed while conducting and deciding on a case. This presupposes a regulated procedure in which not only state activity is carried out according to legal principles, but the essence of the activity lies in the application of the law. In the case of decisions on the approval of advisory assistance , these prerequisites do not apply, since decisions are made on the authorization to use advisory assistance in the administrative area.

The perversion of the law must be to the advantage or disadvantage of a party. When procedural norms are violated, it is therefore necessary that the procedural infringement justifies at least the specific risk of a wrong decision, without the procedural infringement actually resulting in an advantage or disadvantage.

Collegiate Chamber

The prerequisites under which a single judge can commit perversion of the law in tribunals consisting of several judges are controversial.

In the case of decisions that can only be made unanimously (e.g. Section 522 (2) ZPO , Section 349 (2) and (4) StPO , Section 130a VwGO ), the responsibility of each judge is clear, so there are no special features.

Ruling opinion

According to the “popular opinion”, a judge who contradicts a flexural decision, but is overruled, does not commit any perversion of the law or aiding and abetting it. As a justification, it is stated that infraction of the law as an act of offense is not every activity that contributes to a misjudgment (causal), but only one activity that is also assessed as infringing the law.

Other opinion

According to another opinion, the question of whether a judge is an accomplice in a perversion of justice in the collegiate court should be based on the participation in the written execution or the oral promulgation of the decision: Anyone who contributes to the realization of the offense through his act fulfills the objective offense of the offense in question . However, since decisions have to be signed by all professional judges and in criminal proceedings a judgment can only be pronounced in the presence of all judges, every judge who signs the decision and participates in the pronouncement of the decision fulfills the offense of perversion of justice. The outvoted judge also acts deliberately if he recognizes the curative nature of the decision. Whether he voted against the decision and perhaps reject it internally is irrelevant. The criminal liability does not fail because of the lack of a lawful alternative. There is no obligation to participate in the making of a criminal decision. Fear of adverse consequences cannot justify participation in a right-wing decision. Otherwise, workers are not allowed to participate in criminal acts in order to save their jobs. In addition, due to their profession, judges are increasingly expected to assume responsibility for law and justice even in difficult situations. Participation in the enforcement of a right-wing decision should also justify complicity and not just aiding and abetting, since all judges are jointly responsible for the decision and the participation of each individual judge cannot be replaced by a majority vote of the other judges. If one were only to focus on the voting behavior, the judges would have a blockade by mutually invoking their right to remain silent.

Volker Erb summarizes: “The assumption that whoever votes in a collegial court against a curative decision cannot be punished according to Section 339 of the Criminal Code, even with further participation in it, leads to a completely absurd result: It makes the criminal punishment of the perversion of justice and the The associated necessary self-cleaning of the judiciary, of all things, impossible in principle in the most dangerous cases - namely where the members of a collegiate court mutually speak injustice and then hide behind the inexplicability of the internal consultation result by mutual agreement . " The "absurdity" of prevailing opinion shows Erb by the following thought experiment: "On this assumption would be,. B. also the professional judges and lay judges of a criminal chamber who, while mocking the Basic Law and the written criminal law, impose a death sentence, order its immediate execution and at the end find a compliant henchman , protected from any criminal prosecution! "

Advisory secrecy and clarification of voting behavior

The secrecy of deliberations ( § 43 DRiG ) does not preclude the taking of evidence on the voting behavior occurs because the public interest in the investigation of a crime more serious than the approach taken in the secrecy of interest in preserving the uniformity of the college and the authority of judicial decisions. The accused judge is also allowed to comment on the voting behavior.

It is controversial whether the confidentiality of advice may already be disclosed during the preliminary investigation or only in court. In the opinion of the OLG Naumburg, the confidentiality of the advice must not be disclosed in an investigation or in proceedings with administrative authorities. If a judge is to be heard as a witness in court, he is not obliged to give evidence, but has the right to give evidence. Whether and to what extent the judge about the course in consultation and agreement stating he determined after due consideration itself. May According to another view and has the secrecy (if the judge did not as the accused a right to remain silent or because of the risk of self-incrimination an evidentiary privilege has) already in Investigative proceedings are disclosed, since otherwise the public prosecutor's office would be expected to either discontinue the proceedings in spite of the obvious possibilities for clarification or to bring an indictment into the dark.

Since it may not be possible to prove which judges carried the curative decision if all members of the panel do not comment on their voting behavior, critics speak of a “structural impunity” and a “privilege to pervert justice” of the collegiate court. In Fischer's view , if there is no concrete indication of dissent in the vote, the principle of doubt cannot be applied in favor of all parties because of a purely theoretical possibility .

Forms of participation

Perversion of the law can also be committed in indirect perpetration . An instructive example of this is the "Regensburg stand court case", in which the chairman of a stand court deliberately deceived the unqualified assessors about the legal situation and caused them to pass a death sentence, but voted against the judgment. Here the chairman himself bent the law on the one hand, but also indirectly bent the law through his assessors as tools (unequal unity of offense ). Complicity is also possible if several members of a collegial court mutually encourage each other to pass a right-wing judgment. Persons who do not direct or decide a legal matter themselves can, in accordance with Section 28 (1) of the Criminal Code, instigate or assist in perverting the law. This applies, for example, to the public prosecutor who, as a representative at the main hearing, files an application for a judicial criminal judgment. It is controversial whether the public prosecutor who files an application for a right-wing arrest warrant in the preliminary investigation should be punished as the perpetrator (since the public prosecutor is in charge of the preliminary investigation) or only as an assistant (since the arrest warrant is issued by the court). The distinction between incitement and aiding and abetting is based on whether the court is already determined to make the right flexing decision (then only aiding and abetting) or whether it is only caused by the application to the right flexing act (then instigation).

Subjective fact

According § 15 StGB right diffraction is an offense only when intentionally committed, wherein conditional intent sufficient. However, since the case law of the BGH requires a deliberate misapplication of the law for the act of perverting the law, contrary to the wording of the law, only conditional intent cannot ultimately be convicted of perverting the law, as a deliberate violation of the law with conditional intent is hardly conceivable. However, a judge who deliberately makes a decision that is illegal will commit perverse law even if he considers the decision to be fair.

In its judgment of January 22, 2014, the Federal Court of Justice specified the requirements for the subjective offense of perversion of the law as follows: On the one hand, the perpetrator must have at least considered the unjustifiability of his legal view to be possible and approvingly, on the other hand, he must have recognized the fundamental significance of the infringement Legal rule for the realization of law and law have been aware. Conditional intent is sufficient for the existence of a legal violation, while knowledge of the meaning in the sense of direct intent with regard to the gravity of the legal violation is required. Contrary to the opinion represented in the literature, there is therefore no contradiction between the differentiation between a violation of the law and “infraction of the law” in an objective respect, as well as between conditional intent and “deliberate removal of law from law”.

Since the judge is forced to make a decision, there is conditional intent not when the judge decides despite doubts about the correctness of his opinion, but only when he approves the possible flawedness of the decision. A mere contradiction to the highest court rulings or to the prevailing opinion alone cannot be used to derive an intention to pervert the law. Even a grossly incorrect decision does not necessarily suggest the assumption of intent. On the other hand, the specific meaning of the legal norm violated in the individual case can have indicative significance for the judge's knowledge of the gravity of the legal violation.

The intent must relate to all objective elements of the offense, in particular also to the incorrect application of the law. It is sometimes criticized as absurd that in the case of perversion of the law, the error about the law omits the intent (error of fact according to § 16 StGB) and thus necessarily leads to impunity, while with all other criminal offenses the error about the law as a prohibition error according to § 17 StGB only leads to the cessation of guilt, and that only if the error was unavoidable, while an avoidable error can only lead to a lessening of the sentence, but does not have to lead.

Process-related importance

Blocking effect

According to the case law, the offense of perversion of justice to protect the independence of the administration of justice has a blocking effect: According to other regulations (e.g. because of deprivation of liberty in office or - when the death penalty is imposed by NS or GDR), an activity in the management or decision of a legal matter Judges - for manslaughter) can only be convicted if at the same time the offense of perversion of the law is fulfilled. With the judgment of May 13, 2015, the BGH made it clear that the previous justification approach for the blocking effect of the legal infraction offense has "become largely obsolete", since the reformulation of the offense with the law of 2 March 1974, legal infraction is punishable even with conditional intent. Therefore, the blocking effect of the evasion offense does not apply to an act of the judge that does not lead to the fulfillment of a criminal offense in connection with an external decision, order or measure of the negotiating authority, but which in itself violates criminal law. In any case , the blocking effect no longer applies to the forgery of a document .

Prosecution

Since the perversion of the law is punishable by imprisonment from one year to five years, it is a crime ( Section 12 (1) of the Criminal Code). It is an official offense . If a judge is convicted of perverting the law, his judicial relationship ends when the judgment becomes final ( Section 24 No. 1 DRiG ). The historical law enforcement practice moves without any recognizable systematics in the political area of ​​tension between the disciplining of unpleasant colleagues and the immunization of the judiciary against any criminal charge. Indeed, it is difficult to prove a deliberate perversion of justice and a conviction is therefore rare.

civil right

According to § 839 Paragraph 2 Clause 1 BGB i. V. m. Art. 34 GG presupposes a claim for damages against the employer of the judge because of a breach of official duty in the case of a judgment that the violation of official duty consists in a criminal offense.

Example cases from the BGH jurisprudence

  • Judgment of May 23, 1984: A youth prosecutor had stopped investigations against juveniles after he physically punished the juveniles without recording the chastisement in the files. In view of the public prosecutor's clearly illegal actions, the BGH considered the existence of perversion of the law possible and referred the matter back to the regional court for further determination of the intent. In the further course of the proceedings, the public prosecutor was convicted of perverting the law.
  • Judgment of December 5, 1996: A magistrate who was not responsible had granted a suspect exemption from custody. The BGH overturned the judge's conviction for perverting the law because the regional court had attached too much weight to the judge's procedural errors and had not made sufficient determinations on intent.
  • Judgment of 19 December 1996: A District Court judge had in five cases in misdemeanor proceedings for speeding no ban imposed even though the appeal court had the previous decisions of the judge in which she had also imposed no ban lifted, and although each one rule for the imposition of a There was a driving ban in accordance with the Fines Catalog Ordinance. The BGH confirmed the ruling of the regional court in which the judge was acquitted: on the one hand, there was no violation of procedural law (disregard of the binding effect of the previous decision of the appellate court), and not every violation of procedural law constituted a perversion of justice.
  • Judgment of September 20, 2000: A district judge, director of the local court, had issued an administrative procedural temporary injunction in favor of his daughter , although the matter fell under the jurisdiction of the administrative court rather than the local court and he was also excluded by law as the applicant's father was. The BGH found that the judge's approach was grossly flawed and that perversion of the law could also be committed by violating procedural rules. However, since the regional court did not make sufficient determinations on the intent, the BGH overturned the first instance conviction and referred the matter back to another regional court for renewed hearing and decision. The regional court of Frankfurt / Main then sentenced the district judge on April 25, 2001 to a suspended prison sentence of one year for perverting the law.
  • Judgment of September 4, 2001 ( Schill case ): A district judge had not forwarded the complaints of two troublemakers, whom he had taken into custody, to the competent appellate court for two days. The BGH found that the hesitant processing of a case within an objectively justifiable period of time was a perversion of the law if the judge acted with his procedure for irrelevant considerations to the advantage or disadvantage of a party. However, since the regional court did not make sufficient determinations on intent, the BGH overturned the first instance conviction and referred the matter back to the regional court. In the further proceedings, the judge was finally acquitted.
  • Decision of June 24, 2009: A guardianship judge had approved measures involving deprivation of liberty as well as the extension of the placement against persons in nursing homes and, contrary to the known legal obligation, systematically refrained from hearing the persons concerned personally beforehand and getting a direct impression of them, in order to be able to decide the procedures more easily and quickly and to save work. In order to give the appearance of properly conducted hearings, he prepared formally prepared hearing minutes, which he added to the case files. The Stuttgart Regional Court sentenced the judge to three and a half years' imprisonment for completing the right perversion in 47 cases and attempting to pervert the right in seven cases. The BGH justified the rejection of the appeal by stating that perversion of the law can also be committed by violating elementary procedural regulations. The BGH considered the statutory obligation to be heard in proceedings based on measures involving deprivation of liberty as essential.
  • Decision of August 5, 2009: A 57-year-old civil judge at the regional court had supported a craftsman friend in the filing of a claim before the local court and wrote briefs for him. Among other things, he wrote a rejection request against the responsible judge at the district court. After another district judge had rejected the rejection request, the accused judge wrote an immediate appeal against the rejection of the rejection request for the craftsman friend . This complaint was submitted to the accused judge at the regional court for decision. Although the accused immediately recognized that he should have reported these circumstances because of his intensive prior involvement with the matter and would have been released from further processing, he refrained from the necessary self-refusal, decided the matter himself and granted the complaint he had personally written. He was aware that otherwise there was a certain probability that the complaint would have been rejected as unfounded. It was important for the accused to give his acquaintance a “second chance” in the civil proceedings before the local court by “replacing” the judge. The Freiburg Regional Court sentenced the judge to a suspended prison sentence of 15 months for perverting the law. The BGH rejected the appeal of the accused judge as unfounded.
  • Judgment of May 31, 2012: A judge working as a criminal judge on probation at the Eschwege district court had a defendant locked in a custody cell for 20 seconds with the words “I'll show you what your future may look like” in order to prevent the accused, the exhibitionist acts were accused of inducing a confession. The Kassel regional court acquitted the trial reporter of the allegation of perversion of the law and extortion of testimony because the accused judge had acted contrary to the procedural rules, but it could not be proven that he wanted to inflict an unlawful disadvantage on the then accused. Because the accused judge had irrefutably assumed that after an objection to the criminal order of the then accused only had to decide on the legal consequences. The BGH overturned the acquittal and turned the matter back to another criminal chamber of the Kassel regional court, since the regional court had not clarified whether the accused judge also wanted to obtain the consent of the then accused to a therapy requirement and a waiver of legal remedies. In the further proceedings, the judge was convicted of perverting the law and extorting testimony. This conviction was again overturned by the BGH because the findings of the regional court did not support the conviction for extortion and, according to the previous findings, the assumption of perversion of the law was doubtful.
  • Judgment of April 11, 2013: A judge was appointed criminal judge and investigating judge at the Eisenhüttenstadt district court . He chaired a jury court proceedings against an administrator of the estate , the infidelity was accused. He suspected the attorney for the curator of complicity and had therefore tried in vain to have him expelled. While the main hearing was still ongoing, the judge was reassigned to another court; at the Eisenhüttenstadt district court, he was only responsible for handling the criminal proceedings against the curator. On one of the following days of the session, the judge had the defense attorney arrested because he believed a document presented by the defense attorney as evidence was forged. At the - previously agreed - request of the representative of the public prosecutor's office, the judge then issued arrest warrants against the defense lawyer and the curator's wife on the basis of the urgent suspicion of money laundering . The public prosecutor and the judge were subsequently charged with perversion of the law, but were acquitted by the district court (after the previous conviction by the BGH had been overturned for formal reasons). The BGH overturned the judge's acquittal. Although the contents of the arrest warrants were justifiable , the judge was not responsible for issuing the arrest warrants according to the court's distribution plan . The regional court had not ruled out without error of law that the judge, with inappropriate motivation, assumed a jurisdiction that was not his due in order to issue a decision that the judge actually responsible would probably not have issued. On the other hand, the Federal Court of Justice confirmed the acquittal of the public prosecutor, as there was no evidence that the public prosecutor had known that the accused judge no longer had jurisdiction as an investigative judge. In the further proceedings, the judge was finally acquitted because there was no evidence of intent with regard to perversion of the law.
  • Judgment of July 18, 2013: A presiding judge of a small criminal chamber gave incomplete judgments in several cases against which an appeal had been lodged in the office and had the office make a note of receipt. After the expiry of the period in which the judgment was to be withdrawn in accordance with Section 275 (1) sentence 2 of the Code of Criminal Procedure , he secretly exchanged the incomplete verdicts in the file for complete ones. He only left the title page with the entry stamp of the office in the file and did not make a note on the file about the exchange of the verdicts. The regional court acquitted the judge of the allegation of perversion of justice and forgery of documents in several cases. The BGH objected to this. By disregarding Section 275, Paragraph 1, Clause 3 of the Code of Criminal Procedure, the judge had violated the law in an elementary manner, as he had not only supplemented parts of the judgment to a considerable extent when this was no longer permissible due to the deadline being exceeded, but rather a disclosure through his secret action made its manipulation impossible. As a result, the judge worsened the procedural situation of the auditors at the time, which is sufficient to meet the criteria “to the detriment of one party”. Because without the judge's manipulations, the judgments at that time would have had to be overturned in response to the general complaint.
  • Judgment of January 22nd, 2014: A district judge acquitted the persons concerned in several fine proceedings for traffic offenses by decision without a main hearing and without taking evidence , because there was no measurement protocol or calibration certificate in the file. The judge wrongly saw this as a procedural obstacle and said that, contrary to the view of the Higher Regional Court , which had overturned previous similar decisions by the judge, the court's duty to clarify had not required the use of the missing documents. The district court had acquitted the judge because, although the objective offense of perversion of the law had been fulfilled, the judge could not be shown to have intent. The BGH overturned this acquittal because the regional court had assumed incorrect prerequisites when examining the subjective facts: the judge's desire or the idea of ​​acting “justly” or “doing the right thing” does not rule out perversion of the law. The combination of various, each grossly incorrect, considerations should have been taken into account when assessing the evidence.

Processing of Nazi judicial crimes

After 1945, the work of judges and public prosecutors during the National Socialist era was repeatedly the subject of criminal proceedings for perversion of the law. In the Federal Republic of Germany, a number of judges working in the so-called Third Reich were charged with perversion of the law, but there was not a single final conviction with the sole exception of the conviction in the Regensburg stand trial case . In some cases, the judges were credited with the fact that the decisions had moved within the framework of the law applicable at the time, and in some cases acquittals were justified by the fact that in any case the intent to pervert the law could not be proven. In addition, many proceedings because the accused lawyers were unable to stand trial were discontinued before they were finalized .

In this respect, the following decisions by the BGH are exemplary:

  • Judgment of June 19, 1956: The subject matter of the judgment was two trial court proceedings against persons from the resistance against Adolf Hitler for alleged high , state and war treason : In the proceedings of an SS court court on April 6, 1945 in the Sachsenhausen concentration camp against Hans von Dohnanyi who had standartenführer Walter Huppenkothen worked as a prosecutor. Hans von Dohnanyi had been sentenced to death and immediately executed. On April 8, 1945, Walter Huppenkothen participated as a prosecutor in an SS court martial in the Flossenbürg concentration camp against Dietrich Bonhoeffer , Wilhelm Canaris , Hans Oster , Karl Sack and Ludwig Gehre . The SS judge Otto Thorbeck chaired the meeting . All of the accused were sentenced to death and immediately executed. The Augsburg Regional Court had sentenced Thorbeck to four years in prison and Huppenkothen to seven years in prison for aiding and abetting murder (perversion of the law had not been expressly examined). On the appeal of the defendants, the BGH completely acquitted the defendant Thorbeck; the BGH also acquitted the defendant Huppenkothen in the Sachsenhausen case. The BGH justified the acquittal with the fact that, according to the principle of In dubio pro reo, despite numerous procedural errors (e.g. the courts were not competent and incorrectly staffed, the defendants were not appointed a public defender despite the threat of the death penalty ), it had not been proven that it was merely a matter of fact a sham trial for the purpose of killing. Rather, the starting point for the assessment is the “right of the state to assert itself”. Only with regard to the defendant Huppenkothen in the Flossenbürg case did the BGH confirm the guilty verdict, since the defendant Huppenkothen had the death sentences carried out without the prescribed confirmation from the judge.
  • Judgment of April 30, 1968: The judge Hans-Joachim Rehse, who was appointed as assessor of the court president Roland Freisler at the People's Court, was convicted of aiding and abetting murder and attempted murder because he had agreed to several death sentences proposed by the chairman of the People's Court for degrading military strength . Following the appeals by the public prosecutor's office and the defendant, the BGH overturned the judgment and referred the matter back to the regional court: the accused judge could not be viewed as an assistant to the chairman and, if the judgments he supported were wrong, he could only be the perpetrator of a homicidal crime be. However, the district court did not show that Rehse himself voted for the death penalty for low motives. Also, the legal blindness and delusion attested by the regional court to the accused judge is not compatible with the intention of perversion of the law (which had to be fulfilled because of the blocking effect of the act of perversion in order to enable a conviction for murder). In the further proceedings, Rehse was acquitted by the Berlin Regional Court because the offense of perversion of the law was not fulfilled for objective reasons. The right to self-assertion cannot be denied to the Nazi state either, which is why the conviction of the defendants at the time for undermining military strength cannot be objected to. The death sentences were justifiable from the point of view of the "deterrent theory prevailing at the time". In addition, Rehse cannot refute the fact that he decided on his own free conviction. The public prosecutor's office no longer had to decide whether to revise it, as Rehse died.
  • Judgment of July 21, 1970: Two assessors from a special court had been convicted of manslaughter by the Nuremberg-Fürth Regional Court (perversion of the law was statute-barred ) because they had helped convict the businessman Leo Katzenberger to death for racial disgrace in 1942 , the facts of the case in former ruling had found falsified, and the process by the chairman by "very rude, hateful and cynical negotiations" as a show trial has been raised. (The chairman of the special court had already been sentenced to life imprisonment in the Nuremberg legal process because of this and other cases.) In response to the appeals by the public prosecutor and the defendant, the BGH overturned the regional court's judgment: On the one hand, the regional court had not sufficiently dealt with whether the murder characteristic of base motives was fulfilled. On the other hand, the regional court did not give sufficient reasons why it had considered a perverse intent to be proven. In the following period, the proceedings were discontinued because the accused judges were unable to stand trial .

The processing of the Nazi judicial crimes by the German judiciary is considered to have failed. In a judgment from 1995, the Federal Court of Justice itself regretted that NS judges were not held criminally accountable due to the “serious failure of the Federal German judiciary”.

Processing of GDR justice injustice

General

After 1990 there were numerous criminal proceedings against GDR judges and GDR public prosecutors for perversion of the law. However, due to the absolute statute of limitations , the relevant proceedings have now been concluded.

Fundamental traceability of violations of the law committed in the GDR

As early as 1993, the Federal Court of Justice ruled that GDR judges in the Federal Republic of Germany could be convicted of perversion of the law, since perversion of the law was also punishable in the GDR (according to Section 244 of the German Criminal Code), which was replaced by the provision of federal German law on perverse law . It had to be disregarded that the corresponding norms of the Federal German Criminal Code on the one hand and the StGB of the GDR on the other, before the establishment of German unity, referred to acts from different areas of application and the provision of the Federal German Criminal Code only covers the protection of the administration of justice in the Federal Republic of Germany . Rather, it should be examined whether, if the Federal German Criminal Code had already applied in the former GDR at the time of the crime, the conduct that was punishable under the StGB-GDR would also have been punishable according to a norm of the Federal German Criminal Code corresponding to the GDR norm. Despite profound differences between the legal system of the Federal Republic of Germany on the one hand and the GDR on the other hand, the legal interests protected by the perversion of the law in the Federal Republic and in the GDR are not so unequal that the application of the Federal German norm on perversion of the law to acts in the GDR would have to be ruled out, as the case law would also have to be excluded in the GDR, regardless of its political connection, also served to regulate the orderly coexistence of people. A punishment is also excluded neither by amnesties issued in the GDR nor by statute of limitations on prosecution. The statute of limitations in the GDR had been suspended because of a quasi-legal obstacle to prosecution, as it was in line with the political will of the government of the GDR not to bring the members of the judiciary who were involved in those proceedings to criminal responsibility. The Federal Constitutional Court endorsed this case law to be constitutional, in particular lies neither a violation of the non-retroactivity ( Art. 103 para. 2 GG ) or an infringement of the general principle of equal treatment ( Art. 3 , para. 1 GG) ago.

Examination scale

In order to avoid a violation of the prohibition of retroactivity ( Article 103, Paragraph 2 of the Basic Law ), the BGH believes that the punishment of GDR judges for perversion of the law should, apart from individual excesses, be limited to cases in which the illegality of the decision was so obvious and in particular the rights of others, mainly their human rights , have been so severely violated that the decision is an arbitrary act . The benchmark is the obvious violation of human rights, as recognized by the GDR by joining the International Covenant on Civil and Political Rights .

It is true that the provisions of political criminal law in the GDR, despite their incompatibility with human rights, have not yet reached the level of intolerance which, in the sense of Radbruch's formula, leads to the assumption of non-binding law. Due to the high value of legal certainty, this must be limited to extreme exceptional cases. Judges and public prosecutors in the GDR for perverting the law could be criminalized in the following cases:

  • Cases in which criminal offenses have been overstretched by exceeding the wording of the law or by taking advantage of their indeterminacy in their application in such a way that a punishment, especially with imprisonment, is to be regarded as an obvious injustice.
  • There are also cases in which the imposed penalty was unbearably disproportionate to the act sentenced, so that the penalty, even in contradiction to the provisions of GDR criminal law, must appear to be grossly unjust and a serious violation of human rights.
  • Furthermore, serious human rights violations through the manner in which proceedings are carried out, namely criminal proceedings, in which the prosecution and punishment did not serve to achieve justice at all, but rather to eliminate the political opponent or a specific social group.

The Federal Court of Justice emphasized that, in the case of a subjective offense, according to Section 244 of the GDR Criminal Code to be applied, proof of direct intent was required. In view of the high objective limit for the acceptance of perverse law in political criminal proceedings in the GDR, however, in many blatant cases the assumption of direct perverse intent is out of the question.

Example cases from the case law of the BGH

  • Judgment of September 15, 1995: The accused public prosecutor had obtained an arrest warrant against a GDR citizen and subsequently a one-year prison sentence without probation for "public degradation" because she was critical of a West German television reporter in a spontaneous interview in July 1979 Introduction of " value checks " for shopping in Intershops . Furthermore, in January 1982 the public prosecutor obtained an arrest warrant against a 16-year-old girl for “public disparagement” because she had written about ten copies of a critical leaflet on her typewriter and thrown it in house mailboxes. In another case, the public prosecutor had brought charges against a GDR citizen in July 1985 for "impairing state activity" and applied for the continuation of pre-trial detention. In May 1985, the GDR citizen had presented his identity card at the border crossing point Chausseestrasse in Berlin and requested to leave for Berlin (West) . Subsequently, the GDR citizen was sentenced to imprisonment without parole. In all three cases, the BGH confirmed the regional court's guilty verdict for perversion of the law in a single offense with deprivation of liberty , since, given the trivial nature of the offenses, the prerequisites for ordering pre-trial detention under GDR law would not have been met.
  • Judgment of November 16, 1996: The accused former judge, as an assessor in a criminal division of the Supreme Court of the GDR in 1955, participated in two cases in dismissing the appeal of defendants who had been sentenced to death for " boycottism " . In both cases, the accused were executed. In 1956 he participated in a first-instance conviction of "boycotting" two defendants to death, one to life imprisonment and another to eight years imprisonment. In this case, the accused, sentenced to death, were not executed. The Berlin Regional Court had sentenced the accused judge to a total imprisonment of three years and nine months for perversion of the law in three cases, two of which were unity with manslaughter and in another case with attempted manslaughter in two legally coinciding cases. The BGH confirmed this conviction: Although a guilty verdict for boycott hate speech is not in itself a perversion of the law, in spite of the illegitimate vagueness of this offense. But there is a perversion of the law in the form of cruel and extremely harsh punishment. Even at that time, the death penalty could only be used to punish the worst injustice and guilt.
  • Judgment of December 10, 1998: The GDR regime critic Robert Havemann was sentenced to house arrest by the Fürstenwalde district court in 1976 . The ordinance on which the conviction was based, however, only provided for the possibility of prohibiting the convicted person from staying in certain places in the GDR. After Havemann's lawyer Götz Berger appealed against this judgment, his admission to the bar was withdrawn in order to prevent him from representing Havemann. Havemann's appeal was rejected by the Frankfurt (Oder) district court in January 1977 . In 1979 Havemann was fined by the Fürstenwalde District Court for alleged foreign exchange offenses because he had published unpopular books in the West. In this case, too, Havemann's appeal was rejected by the Frankfurt (Oder) district court. Both procedures followed a “script” from the Ministry of State Security . The BGH overturned the first instance acquittal of several judges and prosecutors involved. The wording of the law was arbitrarily overstretched when sentenced to a residence restriction. In addition, in both cases the design of the proceedings (the proceedings were part of Havemann's decades of persecution as a political opponent and did not serve to achieve justice, but rather to "eliminate" Havemann, to exert concrete influence on the part of the MfS right up to clear anticipation of the result of the proceedings and precise deadlines, Obstruction of the defense) the proceedings were curative.

literature

Web links

Individual evidence

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  2. ↑ Hilgendorf in: Leipziger Commentary on the Criminal Code, 12th edition 2009, Volume 13, Section 339 Rn. 11.
  3. ↑ Albrecht , ZRP 2004, p. 256 ff., 260.
  4. ↑ Fischer, Commentary on the Criminal Code, 59th edition 2012, § 339 Rn. 3.
  5. ↑ Spendel in: Leipziger Commentary on the Criminal Code, 11th edition 2006, Volume 9, introduction to Section 339.
  6. ↑ BGBl. I p. 3322
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  8. ↑ bend - point 3).. In: Jacob Grimm , Wilhelm Grimm (Hrsg.): German dictionary . tape 1 : A - Beer whey - (I). S. Hirzel, Leipzig 1854, Sp. 1744 ( woerterbuchnetz.de ).
  9. ^ BGH, judgment of September 4, 2001, Az. 5 StR 92/01; BGHSt 47, 105–116
  10. ↑ BVerfG, decision of July 14, 2016, Az. 2 BvR 661/16
  11. ↑ Fischer, Commentary on the Criminal Code, 63rd edition 2013, § 339 margin no. 30-35.
  12. ^ Friedrich-Christian Schroeder : A questionable judge's privilege p. 12. In: FAZ . February 3, 1995, accessed December 2, 2019 .
  13. ↑ Bemmann, Seebode, Spendel: Rechtsbeugung - Proposal for a necessary legal reform. In: Journal for Legal Policy . 1997, p. 307 f.
  14. ↑ Fischer, Commentary on the Criminal Code, 59th edition 2012, § 339 Rn. 15d.
  15. ↑ a b Heine in: Schönke / Schröder, Commentary on the Criminal Code, 28th edition 2010, § 339 Rn. 5c.
  16. ↑ Cebulla / Schulte-Kellinghaus: Judicial independence as a perversion of the law - The indictment against the Naumburg family judges in the “Görgülü” case was unfounded (PDF; 203 kB), Subject Justice No. 101 (March 2010), p. 230 ff.
  17. ↑ Bernd Heinrich: Does the “right” have to be objectively bent in Section 339 of the Criminal Code? ( Memento from April 27, 2017 in the Internet Archive ) Humboldt University , October 1, 2014.
  18. ↑ Spendel in: Leipziger Commentary on the Criminal Code, 10th edition 1988, Volume 7, § 336 a. F. Rz. 41; Heine in: Schönke / Schröder, Commentary on the StGB, 27th edition, § 339 margin no. 5a; each with additional evidence
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  20. ↑ Rudolphi , Zum Wesen der Rechtsbeugung, ZStW 82 (1970), p. 610.
  21. ↑ BGHSt 24, 328.
  22. ↑ BGHSt 24, 326.
  23. ↑ BGH, January 27, 2016, AZ 5 StR 328/15.
  24. ↑ Spendel in Leipziger Commentary on the Criminal Code, 10th edition 1988, Volume 7, § 336 a. F. Rz. 53 with further evidence.
  25. ↑ Tröndle / Fischer, Commentary on the StGB, 54th edition 2007, § 339 margin no. 13.
  26. ↑ Thomas Fischer , Commentary on the Criminal Code, 65th edition 2018, Rn. 16 on Section 339 of the Criminal Code
  27. ↑ Thomas Fischer, Commentary on the Criminal Code, 65th edition 2018, Rn. 17 on Section 339 of the Criminal Code.
  28. ^ BGH, judgment of July 21, 1970, Az. 1 StR 116/69, NJW 1971, 571
  29. ↑ BGH, decision of September 14, 2017, Az. 4 StR 274/16
  30. ↑ BGH, judgment of May 13, 2015, Az. 3 StR 498/14, Rn. 12.
  31. ↑ StV 2014, 103 ff.
  32. ↑ Criminal liability when dealing with the law? About rascals and coups d'état, HRRS 2014, pp. 324–326 ( online ).
  33. ↑ OLG Koblenz , MDR 1987, 605
  34. ↑ BGHSt 42, 343, 346, 351
  35. ↑ so the formulation of Fischer, StGB, 65th edition, § 339 Rn. 8th.
  36. ↑ Tröndle / Fischer, StGB, 55th edition 2008, § 339 margin no. 8 mw N .; OLG Naumburg, decision of October 6, 2008, Az. 1 Ws 504/07 - Görgülü case # Non- opening decision
  37. ^ Spendel in: Leipziger Commentary , 11th edition, § 339 Rn. 109.
  38. ↑ Heine in: Schönke / Schröder, StGB, 28th edition, Rn. 9a; Fischer, StGB, 59th edition, § 339 Rn. 8th; Volker Erb : On the prosecution of perversion of justice in collegial courts , NStZ 2009, 189 ff .; Christina Putzke: Legal infraction in collegial courts , Tübingen 2012, ISBN 978-3-16-151831-7 .
  39. ↑ Heine in: Schönke / Schröder, StGB, 28th edition, Rn. 9a.
  40. ↑ a b NStZ 2009, p. 189 ff., 193.
  41. ↑ RGZ 89, 13, 16; Spendel, The judicial advisory secret and its limit in criminal proceedings , ZStrW 65 (1953), pp. 406 ff., 418.
  42. ↑ OLG Naumburg, decision of October 6, 2008, Az. 1 Ws 504/07.
  43. ↑ Erb, NStZ 2009, pp. 189 ff., 190.
  44. ↑ Strecker, Betrifft Justiz No. 96, December 2008, p. 377 ff.
  45. ^ Fischer, StGB, 58th edition, ISBN 978-3-406-60892-6 , § 339 Rn. 8th.
  46. ^ Spendel in: Leipziger Commentary on the Criminal Code, 11th edition, 1988, Volume 9, § 339 Rn. 115.
  47. ↑ BGHSt 40, 276; 41, 336
  48. ↑ Tröndle / Fischer, StGB, 54th edition 2007, § 339 margin no. 19th
  49. ↑ a b BGH, judgment of January 22, 2014, Az. 2 StR 479/13 ( hrr-strafrecht.de ).
  50. ↑ BGH, judgment of January 22, 2014, Az. 2 StR 479/13, Rn. 9, 10 ( hrr-strafrecht.de ).
  51. ↑ but Bemman, JZ 1973, 548
  52. ^ Lackner-Kühl, Commentary on the StGB, 27th edition 2011, § 339 Rn. 9; Geppert, JA 1981, p. 81.
  53. ↑ BGH, judgment of January 22, 2014, Az. 2 StR 479/13, Rn. 15 ( hrr-strafrecht.de ).
  54. ^ Ingo Müller , Justice without a conscience - justice “to the best of our knowledge and belief”; Contribution to the conference of the Evangelical Academy Bad Boll from May 4th to 6th, 2007, conference number 520507.
  55. ↑ BGHSt 10, 294; 32, 364
  56. ↑ Az. 3 StR 498/14, Rn. 17th
  57. ↑ Fischer, StGB, 65th edition, §§ 339 Rn 49
  58. ^ Ingo Müller : The use of the legal infraction offense for political purposes Kritische Justiz 1984, pp. 119–141
  59. ^ Sascha Böttner: perversion of the law by judges June 22, 2013
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  61. ↑ Az. 1 StR 376/96; BGHSt 42, 343-356
  62. ↑ Az. 5 StR 472/96; NJW 1997, 1455
  63. ↑ Az. 2 StR 276/00; NStZ-RR 2001, 243-244
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  65. ↑ Az. 5 StR 92/01; BGHSt 47, 105-116
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  72. ^ Judgment of September 1, 2011, Az. 3600 Js 37702/09 5 KLs
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  75. ↑ BGH, judgment of April 11, 2013, Az. 5 StR 261/12
  76. ↑ BGH, judgment of May 10, 2017, Az. 5 StR 19/17.
  77. ↑ BGH, judgment of July 18, 2013, Az. 4 StR 84/13 ( hrr-strafrecht.de ).
  78. ↑ Der Spiegel of January 2, 2012, p. 38.
  79. ^ Higher Regional Court Nuremberg, Justice and Nazi Crimes II 318, see Spendel, in: Leipziger Commentary on the Criminal Code, 11th edition 2006, 9th volume, § 339 Rn. 11.
  80. ^ Ingo Müller: Terrible lawyers. The unresolved past of the judiciary. Munich 1989.
  81. ↑ Az. 1 StR 50/56, NStZ 1996, p. 485 ff.
  82. ↑ Az. 5 StR 670/67, NJW 1968, pp. 1339-1340.
  83. ^ Gerhard Mauz in: SPIEGEL of December 9, 1968
  84. ↑ Az. 1 StR 119/69, NJW 1970, p. 571 ff.
  85. ^ Spendel in: Leipziger Commentary on the Criminal Code, 11th edition, 1988, Volume 9, § 339 Rn. 11.
  86. ^ BGH, judgment of November 16, 1995, Az. 5 StR 747/94; BGHSt 41, pp. 317–347.
  87. ↑ Judgment of December 13, 1993, Az. 5 StR 76/93, BGHSt 40, 30-44
  88. ^ BGH, judgment of November 16, 1995, Az. 5 StR 747/94, BGHSt 41, 317-347
  89. ↑ BVerfG, decision of May 12, 1998, Az. 2 BvR 61/96, NJW 1998, pp. 2587-2598.
  90. ↑ BGH, judgment of December 13, 1993, Az. 5 StR 76/93, BGHSt 40, 30-44
  91. ^ BGH, judgment of September 15, 1995, BGHSt 41, 247-277.
  92. ^ BGH, judgment of October 22, 1996, Az. 5 StR 232/96; NStZ 1997, 127–129.
  93. ↑ BGH, judgment of July 26, 1999, Az. 5 StR 94/99; NStZ 1999, 361
  94. ↑ Az. 5 StR 713/94, BGHSt 41, 247-277
  95. ↑ Az. 5 StR 747/94, BGHSt 41, 317-347
  96. ↑ Az. 5 StR 322/98, BGHSt 44, 275-308