Anti-state movement

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Anti-state movement is a term used in Austrian criminal law . Section 247a of the Criminal Code (StGB) forbids under certain conditions the establishment, leading activity in, participation in and support of such a movement. The offense was introduced as part of the Criminal Law Amendment 2017 and presented primarily a response to the increased occurrence of so-called State objectors who do not recognize the Republic of Austria and partially self-government (territorial) rights presume. It is the prohibition of anti-state compounds according to § 246 StGB.

history

Parallel to similar developments in Germany, according to the government proposal for the amendment to the penal law in 2017, an increasing number of groups emerged in Austria from around mid-2014 that rejected the sovereign rights of the Republic of Austria. The government included groups such as the Freemen , the Reichsbürger , the One People's Public Trust (OPPT), the Austrian Federation and others. What these groups have in common is that, based on “conspiracy theories and self-invented legal constructs”, they question the legitimacy of nation states or place their own supposed rights over the sovereign powers of the state. Often, for example, paying taxes and complying with state laws would be refused. The reactions of the supporters of these movements to government action against them ranged from numerous unsubstantiated petitions ( complaints ) to threats and violence against officials. At the beginning of 2017, the Ministry of the Interior estimated the size of this scene in Austria at around 1,100 people.

The idea of ​​creating a separate criminal offense for this problem was initially found in the work program 2017/18 presented by the Federal Government of Kern in January 2017 . On February 20, 2017, the Ministry of Justice published a draft that contained, among other things, the new ban on anti-state movements. The determination came in the review process on a lot of criticism. On the one hand, the necessity of a separate offense was questioned, on the other hand, the formulation was viewed as too vague and the fear expressed that the offense could also be used against politically unpleasant or civil society groups in the future. In the government bill, the provision was therefore made more concrete compared to the draft, but this did not satisfy most critics. The amendment was passed on June 28, 2017 in the National Council with the votes of the coalition partners SPÖ and ÖVP as well as the Stronach team , the opposition parties FPÖ , Greens and Neos stuck to their criticism and spoke of “conviction criminal law”. The new § 247a StGB came into force on September 1, 2017.

Facts and systematics

Section 247a, Paragraph 3 of the Criminal Code defines an anti-state movement as follows:

An anti-state movement is a group of many people who are aimed at flatly rejecting the sovereign rights of the Republic of Austria (federal, state, municipal or other self-government) or continuously assuming the exercise of such or claimed sovereign rights, and the purpose of which is to continue to unlawfully prevent the enforcement of laws, ordinances or other sovereign decisions of the authorities or to enforce the presumed or asserted sovereign rights in a way that clearly manifests the anti-subversive orientation.

In the long term, therefore, there must be a complete rejection of sovereign rights (and not just individual decisions or norms). According to the literature, “many people” are at least around 30 people. And illegal means above all, but not only, procedures that violate criminal law. A certain (detailed) organizational structure or that the individual participants even know each other personally is not necessary for this. In any case, "non-violent protests, demonstrations or other actions that deal with a critical discussion of politics, the state, politicians or individual decisions of the authorities or attempt to reconsider the decision" should not be classified as anti-state movements "(the government bill cites as an example the occupation of the Hainburger Au ).

Contributions to such an anti-state movement are only punishable as soon as a participant in the movement has “carried out or contributed to a serious act in which the anti-state orientation is clearly manifested” (para. 1). When an action is to be “taken seriously” causes certain difficulties. According to the government bill, an action is "to be taken seriously if it is meant seriously" and, provided it consists of an announcement, also appears to be feasible.

In paragraph 1, the establishment of and leading activity in an anti-state movement is specifically prohibited (threat of up to two years imprisonment). Leading is those who are allowed to issue orders to other members, although this can only include a partial area. Paragraph 2 finally prohibits (mere) participation with the intention of promoting the commission of subversive acts, as well as substantial support for a movement (threat of up to one year imprisonment or 720 daily fines). If the movement is financially supported, an amount of at least 30,000 euros is “substantial”.

According to Section 247a (5) StGB, “anyone who voluntarily and before the authorities has found out about his fault, withdraws from the movement in a way that clearly shows that the anti-state orientation is no longer supported is not to be punished for this offense becomes ”( active repentance ).

Section 247a can be found in the fourteenth section of the special part of the Criminal Code, high treason and other attacks against the state . Protected legal interest is the physical and legal (continued) existence of the Republic of Austria as a whole, its regional authorities and self-administration bodies .

literature

  • Angelika Adensamer: Excessive criminalization as a threat to democracy . In: juridikum. magazine for criticism | right | society , issue 2017/2, pp. 149–151.
  • Helene Bachner-Foregger: § 247a StGB . In: F. Höpfel / E. Ratz , Vienna Commentary on the Criminal Code , 2nd edition (as of June 1, 2018), Vienna.
  • Roland Pichler: The criminal prosecution of “Reich citizens” as a threat to freedom of expression and to political protest? - using Austria as an example . In: A. Albrecht / J. Geneuss / A. Giraud / E. Pohlreich (Ed.): Criminal Law and Politics. 6th Symposium of Young Criminal Lawyers , Potsdam 2017, pp. 147–166.

Individual evidence

  1. ↑ Explanatory remarks on the government bill , 1621 der Beilagen XXV. GP , p. 5.
  2. ↑ Ibid.
  3. ↑ "Anti-state movements" should be punished more severely , derstandard.at , February 21, 2017. Accessed July 25, 2019.
  4. ↑ For Austria. Work program of the federal government 2017/2018 , January 2017, p. 23.
  5. ^ Ministerial draft 294 / ME XXV. GP , p. 2
  6. ↑ “I see a potential risk in the future” , Wiener Zeitung , June 20, 2017. Accessed on July 26, 2019.
  7. ↑ Shooting sparrows hostile to the state with cannons , Augustin , August 29, 2017. Retrieved July 26, 2019.
  8. ^ National Council adopts 2017 amendment to the Penal Act , Parliament Correspondence No. 819, June 28, 2019.
  9. ↑ Bachner-Foregger in Höpfel / Ratz, Vienna Commentary on the Criminal Code, 2nd edition, § 247a margin no.2.
  10. ↑ Explanatory remarks on the government bill , 1621 der Beilagen XXV. GP , p. 6.
  11. ↑ Ibid.
  12. ↑ Bachner-Foregger, margin no.4.
  13. ↑ Ibid., Margin no.6.