Dissemination of propaganda material from unconstitutional organizations

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The dissemination of propaganda material by unconstitutional organizations is a criminal offense that is standardized in Germany in Section 86 of the Criminal Code. The offense is an offense punishable by imprisonment for up to three years or a fine .

The regulation is classified as a state security and abstract endangering offense and is intended to prevent propaganda for the goals of anti- constitutional organizations.

background

The criminal offense is not directed against individual expressions of opinion, but against anti-constitutional propaganda. According to prevailing opinion and jurisprudence, it is constitutional and does not violate Article 5, Paragraph 1 of the Basic Law . The norm is protected by the rule of law , which implements the principles of the free democratic basic order described in Paragraph 2 or the ideas of international understanding .

content

Objects of crime

The provision recorded propaganda , which are to writings within the meaning of § 11 is par. 3 of the Criminal Code. As standardized in Section 86 (2) of the Criminal Code, they must be directed against the free democratic basic order or the idea of ​​international understanding .

This means that they either undermine the fundamental principles of the democratic constitutional state or contradict the goal of peaceful coexistence between peoples. This group includes writings with content that is contrary to international law or that glorifies war, which is also directed against the constitutional peace requirement of Article 26 of the Basic Law, according to which such acts are to be made punishable.

Since simple criticism of the principles of the free democratic constitutional state is not prohibited and the controversial democracy only fends off attacks on its basic order, the criterion is only fulfilled if the propaganda is directed against these constitutional principles in an "active, combative, aggressive tendency" ( BGHSt 23 , 64).

Since the rule of law of the Basic Law is the protected property of the regulation, according to the prevailing opinion, only post-constitutional writings that oppose the fundamental values ​​of the Federal Republic of Germany are subject to the norm . If, on the other hand, pre-constitutional works are edited and updated, they can also be recorded.

Organizations

The individual constituent elements of the organizations can be found in the first paragraph of the standard. The regulation distinguishes between existing associations and former organizations.

Para. 1 no. 1 and no. 2 refer to § 84 or § 85 of the Criminal Code, so gather a propaganda tool by the Federal Constitutional Court for unconstitutional explained party or replacement organization as well as a banned organization.

No. 3 relates to governments , associations or institutions that are outside the territorial scope of the Criminal Code. Here, too, a domestic organizational reference is required, so the bodies must act on behalf of the unconstitutional purposes of the associations named in No. 1 and No. 2.

Finally, No. 4 comprises propaganda material aimed at continuing efforts by former National Socialist organizations. This includes the National Socialist German Workers' Party , its branches and affiliated associations. If one does not want to understand the regulation as a vague description of writings with Nazi ideas, a certain organizational reference cannot be dispensed with. The content of the text must first meet the requirements of the second paragraph, thus be directed against the free democratic basic order or the idea of ​​international understanding and also have been represented by a Nazi organization. It is also necessary that the propaganda aims to achieve precisely these goals under the current conditions of the Federal Republic.

An anti-communist banner with the inscription "Rotfront verrecke - National Socialists" and the depiction of a fist smashing hammer and sickle with the inscription "Rotfront verrecke!"

Offense

The act itself is subdivided into several subdivisions: The act is first committed by those who disseminate these documents in Germany , an act that corresponds to Section 74d (1) of the Criminal Code and also takes into account the dissemination of data storage media. The regulation also covers various preparatory actions. Anyone who produces, keeps in stock, imports or exports the relevant material for distribution domestically or abroad is liable to prosecution. The perpetrator is also whoever makes the writings in data storage accessible to the public.

Social adequacy

According to the prevailing opinion, the social adequacy clause of Paragraph 3 excludes this fact if the material serves the purposes stated there. The individual purposes include civic education , the defense against unconstitutional efforts , art or science , research or teaching , reporting on current events or history or similar purposes .

Web links

Individual evidence

  1. ↑ Thomas Fischer , § 86, dissemination of propaganda material of unconstitutional organizations, in: Criminal Code and Additional Laws, CH Beck, Munich 2012, Rn. 2, p. 765
  2. ↑ Thomas Fischer, § 86, dissemination of propaganda material of unconstitutional organizations, in: Criminal Code and Additional Laws, CH Beck, Munich 2012, Rn. 2, p. 765
  3. ^ Karl Lackner , § 86 StGB, dissemination of propaganda material of unconstitutional organizations, in: Penal Code with Explanations, Beck, 19th edition, Munich 1997, p. 572, Rn. 3
  4. ↑ Thomas Fischer, § 86, dissemination of propaganda material of unconstitutional organizations, in: Criminal Code and Additional Laws, CH Beck, Munich 2012, Rn. 4, p. 766
  5. ↑ Karl Lackner, § 86 StGB, dissemination of propaganda material of unconstitutional organizations, in: Criminal Code with Explanations, Beck, 19th edition, Munich 1997, p. 573, Rn. 4th
  6. ↑ Thomas Fischer, § 86, dissemination of propaganda material of unconstitutional organizations, in: Criminal Code and Additional Laws, CH Beck, Munich 2012, Rn. 4, p. 766
  7. ↑ Thomas Fischer, § 86, dissemination of propaganda material of unconstitutional organizations, in: Criminal Code and Additional Laws, CH Beck, Munich 2012, Rn. 10, p. 767
  8. ↑ Thomas Fischer, § 86, dissemination of propaganda material of unconstitutional organizations, in: Criminal Code and Additional Laws, CH Beck, Munich 2012, Rn. 11, p. 767