Criminal specificity principle (Germany)

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Signaling of prohibition orders violating the requirement of certainty

The constitutional requirement of certainty obliges the Federal Republic of Germany to formulate any encroachments on fundamental rights with sufficient accuracy .

Determination in Criminal Law

These include, in particular, the criminal laws. For the area of criminal law , the requirement of certainty is laid down in Article 103, Paragraph 2 of the Basic Law ( nulla poena sine lege certa ) as well as in the identical Section 1 of the Criminal Code . According to the requirement of specificity, criminal law standards must be so specific that the scope and scope of the offense can be recognized and determined through interpretation.

The aim of the requirement of certainty in criminal law is to offer the citizen legal certainty with regard to the criminal liability of actions and the punishments threatened on them.

If the legislator violates this requirement, nobody can be convicted on the basis of the indefinite norm (see also loophole in the law ). An example of this is the repeal of the former Section 43a StGB ( property penalty ) by the Federal Constitutional Court on March 20, 2002.

Determination in the law of administrative offenses

Article 103, Paragraph 2 of the Basic Law obliges the legislature to describe the prerequisites for criminal liability in such a concrete way that the scope and scope of the criminal norm can be recognized and determined through interpretation.

This obligation also applies to fines. It serves a dual purpose. On the one hand, the norm addressee should be able to foresee which behavior is prohibited and threatened with a penalty or a fine. On the other hand, it should be ensured that the legislature itself decides on the criminality or punishability of behavior.

There is an abundance of legal regulations which, by means of a blanket offense, allow a member of the executive to enforce the law through subordinate norms ( statutes or ordinances ) and to provide this regulation with a fine reinforcement .

From Article 103, Paragraph 2 of the Basic Law, it follows that the offense to which the fine reinforcement is to be placed must be specified in the legal norm with sufficient precision. This is only the case if the limits of criminal liability as well as the type and amount of the sanction can be foreseen for the citizen from the authorization for the imposition of a fine. Otherwise the fine regulation is ineffective. From this it follows that not every violation of a regulation can be treated as an administrative offense . Rather, reference must be made to the respective regulation in a differentiated manner.

For example, the law states:

"Anyone who [...] contravenes an ordinance issued on the basis of this law is an administrative offense insofar as it refers to this regulation on fines for certain offenses."

A legal norm enacted on the basis of this law must determine with sufficient precision the facts that are considered an administrative offense, for example:

“An administrative offense is committed by anyone who [...] contravenes Section 3 of this regulation

  1. As a property owner, leaseholder, apartment owner, leaseholder, usufructuary or other person with real rights to use a property, fails to connect his property to the public waste disposal facility,
  2. As a property owner, leaseholder, apartment owner, leaseholder, usufructuary or other person with real rights to use a property, fails to use the public waste disposal facility and to leave the waste generated on their property to the district,
  3. [...] "

On the other hand, a wording such as “Anyone who violates the prohibitions specified in Section 3 is acting in an administrative offense” is not sufficiently specific. As a rule, such a wording refers at best to definable , not specific, facts. The behavior sanctioned in this way is not sufficiently predictable. But that does not meet the requirements of Art. 103 GG.

Likewise, a formulation that does not contain any upper limit for the reinforcement of fines is not sufficiently determined.

Equally invalid is a provision that refers to a law that has expired. In such cases, it is the responsibility of the constitution or regulation giver to ensure appropriate clarity.

See also

Individual evidence

  1. ↑ BVerfG, decision of June 22, 1988, Az. 2 BvR 1154/86, BVerfGE 78, 374 (381) .
  2. ↑ BVerfG, judgment of March 20, 2002 , Az. 2 BvR 794/95, full text.
  3. ↑ BVerfG, decision of May 6, 1987, Az. 2 BvL 11/85, BVerfGE 75, 329 (341) - Administrative Accessory in Environmental Criminal Law .
  4. ↑ a b Examples based on BVerfG, decision of June 19, 2007 , Az. 1 BvR 1290/05, on municipal waste management statutes.
  5. ↑ (cf. OLG Rostock, 2 Ss OWi 372/06 I 86/07, Rd. 34) [1]
  6. ↑ (see OLG Frankfurt, 2 Ss-OWi 241/09, Rd. 20ff) [2]