Disorder of the practice of religion
Disruption of religious practice (Germany) or disruption of religious practice (Austria) is a criminal offense ( misdemeanor ), which is regulated in Germany in the Criminal Code (StGB), in Austria in the Criminal Code (ÖStGB).
According to the prevailing opinion, the norm protects public peace . In addition, the undisturbed practice of religion and belief should be protected at least indirectly . Their need for protection is deduced from Article 4 Paragraph 2 of the Basic Law .
Object and act
According to paragraph 1 no. 1, there must be a service or a service of a church or other religious community in Germany . A service is defined in literature and jurisprudence as an event at which members of a religious community gather in order to build themselves religiously through common devotion , worship and worship of God according to the rules, customs and forms of their association. Accordingly, the variant is about the common, the general. In contrast, the act of worship should be about the special religious needs of an individual.
Problems can arise when an event has multiple purposes. For example, a political event appears in a religious guise. In each individual case, it is important to determine whether the event can still go through as a service (i.e. whether the religious factor appears to be dominant) or whether the religious is only a means to an end.
Since the worship service is characterized by what the believers have in common, events (e.g. masses ) with only one person present are excluded from criminal liability.
The perpetrator must grossly disrupt the worship service or act. Disturbance is any impairment of the intended process. When this is "rough" can be determined by evidence , for example by the length (1.5–2 minutes are sufficient), or by the fact that the person has to be removed from the event.
The offense is excluded if the perpetrator “disturbs” for understandable reasons. For example, screams that there was a fire would be conceivable. In such cases that are similar to the emergency , approval from the participants must be expected.
The perpetrator must intentionally , i.e. purposefully, disrupt the worship service or the act of worship.
Success (for example breaking off the service) is not required, so it is an abstract offense at risk .
According to Paragraph 1 No. 2, insulting nonsense must be committed in a place that is dedicated to the worship of such a religious society. A dedication exists if the place is objectively recognizable as religious and is essential for the practice of religion. Insulting nonsense is an act that reveals a raw disposition and expresses disregard for the special character of a place. The following actions are often given as examples: Singing pornographic songs, smearing swastikas , sexual behavior.
According to paragraph 2, ideological associations are treated equally. A world view association any association for the perception of a common world view . A worldview is any broader explanatory system for human relationships and the human relationship to society and nature (e.g. Marxism , existential philosophy , Darwinism and anthroposophy , but also groups such as sects that are problematic in terms of social ethics ).
The standard has had its current version since the 1st StrRG of June 25, 1969 .
Penalties and procedural matters
The reference to the Basic Law and the claim to protection derived from it is also criticized in some cases, since paragraph 1 no. 2 does not harmonize with it. If insulting nonsense is committed, freedom of worship is not necessarily restricted. In addition, other types of behavior protected by fundamental rights are also not protected by criminal law. The criminal liability is doubtful.
In December 2014, activist Josephine Witt , who was part of the Femen group at the time of the crime, was sentenced to a fine of 60 daily rates of 20 euros each for disrupting religious practice because she jumped on the altar while wearing a loincloth during a Christmas service in Cologne Cathedral in 2013 , while the words " I am God " (English for "I am God") were written on her upper body and there she chanted anti-Christian creeds.
In January 2016 the performance artist Alexander Karle went to the Catholic Basilica St. Johann in Saarbrücken to do 26 push- ups on the altar there. He filmed his action and published the video entitled "pressure to perform" on the Internet. With the action he wanted to show his critical attitude towards the performance society, which is no longer sacred. For this he was u. a. convicted of disturbing the practice of religion.
In Austria is disturbance of a religious exercise in of the Criminal Code punishable. The act can be punished with a fine of up to 360 daily rates or with a prison sentence of up to six months. If violence was used in the act, a prison sentence of up to two years is possible.
- Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 167, 1.
- cf. only OLG Celle, decision of 11.12.1996 - 2 ARs 54/96
- Thomas Fischer: Criminal Code . 67th edition. CH Beck, 2020, § 216, 3.
- Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 167, 5.
- AG Cologne 03/12/2014 - 647 Ds 240/14
- Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 167, 6.
- Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 167, 8.
- Bosch / Schittenhelm: Criminal Code . Ed .: Schönke / Schröder. 30th edition. CH Beck, 2019, before. § 166 ff., 2.
- Stephan Stübinger: Criminal Code . Ed .: Kindhäuser / Neumann / Paeffgen. 5th edition. tape 2 . Nomos, 2017, § 167, 10.
- Thomas Fischer: Criminal Code . 67th edition. CH Beck, 2020, § 167, 8.
- Tatjana Hörnle: Criminal Code . Ed .: Miebach / Joecks. 3. Edition. tape 3 . CH Beck, 2017, § 166, 8.
- Federal Law Gazette I p. 645. Retrieved on May 1, 2020 .
- Tatjana Hörnle: Criminal Code . Ed .: Miebach / Joecks. 3. Edition. tape 3 . CH Beck, 2017, § 167, 2.
- Spiegel Online: Femen in Cologne: Half-naked altar jump costs 1200 euros , December 3, 2014
- OLG Saarbrücken, decision of May 15, 2018 - Ss 104/17