Breach of trust in the foreign service

from Wikipedia, the free encyclopedia

The breach of trust in the foreign service , the so-called Arnim paragraph , was standardized - similar to the Duchesne paragraph and the pulpit paragraph - due to a politically motivated incident during the first years after the German Empire was founded in 1871 . The paragraph was incorporated into the Reich Criminal Code as Section 353a in 1876 , and it continues to apply.

history

Count Harry von Arnim-Suckow took up his position as the Imperial German Ambassador in Paris in 1871. In 1873 he ignored several official instructions from Reich Chancellor Otto von Bismarck and supported the monarchy movement in France instead of taking sides with the then French President Adolphe Thiers . The arrogant behavior of Arnim was seen in public as a possible prospect for the post of Reich Chancellor, i.e. Bismarck's successor. At Bismarck's instigation, Arnim was dismissed from his post by Kaiser Wilhelm I on March 2, 1874 and offered to head the embassy in Constantinople . In an exchange conducted in the press, Arnim admitted that he had taken "personal" files with him from the embassy archives relating to his conflict with Bismarck (so-called conflict papers). He returned further files with positions on church policy.

Arnim was arrested and sentenced to three months in prison for offenses against public order by the Berlin District Court . As the court responsible for the appeal , the Berlin Superior Court ruled that Arnim had been guilty of removing documents and increased the prison sentence to nine months. The criminal process was followed by disciplinary proceedings , which led to dismissal from service with loss of titles and pension. Arnim evaded execution by fleeing abroad. From there he continued his struggle for rehabilitation with the anonymous pamphlet "Pro Nihilo! Prehistory of the Arnim Process" with sharp criticism of Bismarck and indirectly also of the Kaiser. Because of this publication, Arnim was sentenced in 1876 by the Senate for State Crimes at the Berlin Chamber of Commerce for using diplomatic documents and conducting various official business to the detriment of the Reich - qualified as treason - as well as insulting his Majesty , the Reich Chancellor and the AA in absentia to five years in prison. Arnim, suffering from diabetes, died on May 19, 1881 in Nice. As early as 1875, the Reich Government submitted the draft for Section 353a of the Criminal Code to the Reichstag. This became law in a slightly modified version on February 26, 1876 (RGBl. Pp. 25, 37).

After the penal provision (§ 353a StGB ) was repealed as a foreign policy-related norm with the 11th Control Council Act, it took place in connection with the establishment of the new Foreign Office (AA) and the diplomatic foreign apparatus of the Federal Republic of Germany with the 1st Criminal Law Amendment Act in 1951 again entry into the StGB. The legislature justified this with the need to include this provision in the Criminal Code "for the sake of its preventive effect" after the Federal Republic of Germany resumed diplomatic relations.

Meaning of the regulation

The legal interest of Section 353a of the Criminal Code, which is designed as an abstract endangering offense, is the foreign interests of the Federal Republic of Germany, which are to be protected from disruptions and disadvantages that occur in the representation of the Federal Republic of Germany through non-compliance with official instructions (1st variant of the offense) or through false reports (2nd variant of the offense ) can arise.

In the area of ​​foreign affairs, official instructions pursue the purpose of the (foreign) political objectives, positions or options for action formulated by the authorities that are politically and / or legally responsible for the foreign policy of the Federal Republic of Germany vis-à-vis the bodies named in Section 353a (foreign government, community of states, intergovernmental body). Official instructions in the field of foreign affairs are therefore to be followed by the group of people to whom they have been issued and carried out in the sense intended by the instructing body (usually the respective superior of the instructed person). This is necessary so that the (foreign) political objectives, positions or options for action of the Federal Republic of Germany specified by the competent authorities are not paralyzed or thwarted and this could result in U. German foreign interests are endangered. In this abstract danger for the foreign interests of the Federal Republic of Germany, generated by the act of so-called official disobedience, lies the actual punitive reason for the violation of an official instruction penalized in § 353a with the first variant of the offense.

The ongoing information of the foreign affairs of the foreign affairs of the authorities politically and / or legally responsible for the foreign policy of the Federal Republic of Germany is indispensable for the organization of the foreign relations. It forms the basis for forming an opinion on the (external) political objectives, positions and options for action to be formulated by the competent authorities or, in individual cases, operational decisions to be made. In accordance with its meaning and purpose, the reporting must therefore extend to information about political, military, economic, cultural and other events in a foreign state, a community of states or an intergovernmental institution or to notifications about special circumstances and events that have an impact on the design or The leadership of German foreign policy can have influence. A report is also to be submitted as notification of the execution of an issued official instruction to the bodies named in § 353a and as notification of the political effect or non-effect achieved with the execution of this instruction at the named bodies. From the meaning and purpose of the reporting and its importance for the formation of opinions and an indispensable control element of the bodies responsible for German foreign policy, it ultimately follows that the reports reported are not based on imaginary, but exclusively on real, actual circumstances. Forming an opinion on the basis of an untrue report by these authorities U. endanger German foreign interests. In this abstract danger for the foreign interests of the Federal Republic of Germany, generated by the act of the so-called official lie, lies the real reason for the misreporting penalized in § 353a with the second variant of the offense.

Since the cause of damage or a specific endangerment of the protected property is not required for the fulfillment of the facts, this means that there is a formal violation of § 353a even if, for example, the non-compliance with (inappropriate) instructions for the Federal Republic in concrete is useful, or a false report saved it from harm, for example because truthful reporting would have prompted the federal government to take hasty (improper) measures. In addition to the aforementioned protective purpose, Section 353a is also intended to ensure the decision-making and management authority at the foreign representation of the Federal Republic of Germany. The (subordinate) "representative" should not be able to rule on the interests of the Federal Republic, but the measures required in accordance with the interests of the Federal Republic of Germany are to be taken exclusively by the legally competent authorities who also have political and / or legal responsibility. From the type of § 353a as an abstract endangering offense it follows that the proof of complete harmlessness does not exclude the fact or the proof of having averted damage or even brought about benefit does not lead to impunity. As it is necessary for the offense of § 353a that the perpetrator acts "with the representation of the Federal Republic of Germany", the offense can only be committed by persons who are also in this special relationship. In this respect, Section 353a is a special offense. The classification of § 353a in the Criminal Code within the criminal offenses in the office is explained by legal history, since this criminal norm was previously only applicable to a certain class of civil servants - civil servants in the service of the Foreign Office.

The fact that Section 353a of the Criminal Code has been largely "forgotten" for more than 130 years by criminal law studies and legal practice has considerable potential, as well as being up-to-date and practical, especially today. The perpetrators are not only diplomatic / consular representatives of the Federal Republic of Germany (as officials of the Foreign Office (AA) and experts from other federal authorities who are temporarily taken on in the Foreign Service, e.g. as military / economic / press attaché or the Federal Intelligence Service - BND -, at a diplomatic mission abroad), but all public officials (as officials also at the headquarters of the Foreign Office and other federal authorities) as well as persons outside the authorities (as emissaries for a diplomatic ad hoc special task appointed and respected abroad as public figures, such as e.g. a member of the Bundestag, an elder statesman or a retired professional diplomat) who are entrusted with overseeing the foreign affairs of the Federal Republic of Germany, whether abroad or in Germany. By recording a group of perpetrators outside of the diplomatic (foreign) service of the Federal Foreign Office (AA), the "Arnim Paragraph" is an important preventive instrument to counter the increased risk of multi-track foreign policy and contradicting foreign policy positions of the federal government, which has increased with the large number of new foreign policy actors to meet in advance and at the same time to ensure a coherent implementation of German foreign policy overall.

As an expression of state disapproval of foreign private policy / foreign policy on one's own initiative, § 353a StGB also penalizes violations of an official foreign policy given as a guideline with the first variant. The investigation of the activities of the Federal Intelligence Service (BND) in connection with the Iraq war in 2003 shows that the existence of Section 353a of the Criminal Code can be a suitable preventive instrument to avoid the danger that certain activities of the BND will have a life of their own that is not covered by the politically responsible authorities develop, prevent.

Furthermore, the investigation of the AA guidelines for the handling of diplomatic and consular privileges of posted workers, revised in 2005, shows that these are an official instruction i. S. d. § 353a StGB and therefore intentional abuse of privileges is punishable de lege lata.

In the application of criminal law, the investigation shows that the reform of the so-called international criminal law in 1975 created a (previously non-existent) criminal liability loophole de lege lata for a certain group of offenders under Section 353a of the Criminal Code (here: persons outside the authorities).

literature

  1. Presentation of the public negotiations that took place in the matter of investigation against the Real Secret Counsel Count von Arnim before the Royal City Court of Berlin in December 1874 - published using official sources - as well as the appendix containing the in the course of the investigation against the Real Secret Counsel Count von Arnim documents read out during the public negotiations, Kgl. Ober-Hofbuchdruckerei, Berlin 1875
  2. Franz von Holtzendorff (ed.): Legal opinion submitted to the trial of Count H. v. Arnim, with contributions by Wahlberg, Merkel, von Holtzendorff and Rolin-Jaequemyns, Munich 1875
  3. Indictment of the k. prussia. Chief Public Prosecutor against Count Harry von Arnim together with pieces of files, London 1876
  4. Pro Nihilo! (Anonymous writing, attributed to Harry von Armin), Prehistory of the Arnim Process, First Issue, Zurich 1876
  5. von Harlessem: Pro Multo, reply to the brochure "Pro nihilo", Leipzig 1876
  6. Anonymous author: The Arnim trial, presented by an old lawyer, Heidelberg 1877
  7. Disciplinary proceedings against Count Harry von Arnim in the last instance before the Reichs-Disciplinary Court in Leipzig on March 3, 1877, stenographic transcript, Leipzig 1877
  8. Oskar Klein-Hattingen: Bismarck and his world, second volume, first part, Berlin 1903
  9. Decisions of the Reich Court in Criminal Matters (RGSt) Vol. 41, 4, 6
  10. Decision of the lower court on (1st) Berlin Regional Court , in: Deutsche Juristen-Zeitung, 1907, 976
  11. Fritz Stier-Somlo: The Pöplau case and the Arnimparagraph, Deutsche Juristen-Zeitung 1907, 682
  12. Wilhelm Contag: Official offenses in the diplomatic service: Section 353a of the Criminal Code (Arnim Paragraph), Diss. Breslau 1913
  13. Franz von Liszt: On the Arnim paragraph (§ 353a StGB), Juristic Wochenschrift 1918, 540
  14. Bernhard Schwertfeger: The Diplomatic Files of the Foreign Office 1871–1914, Commentary, Part One, The Bismarck Epoch, Volume 1, The Frankfurt Peace and its Aftermath 1871–1877, Berlin 1924
  15. Hans Herzfeld: Germany and the defeated France 1871–1873, Berlin 1924
  16. Georg Strobl: The diplomatic betrayal of secrets and the diplomatic disobedience according to § 353a StGB and its redesign according to the draft of 1927, Diss. Erlangen 1933
  17. Walter Laubenthal: The "Arnim Paragraph" (§ 353a of the Criminal Code), its significance in the past and present, Diss. Cologne 1935
  18. Heinrich Triepel: The foreign policy of private persons , journal for foreign public law and international law, Volume IX, 1939, 1, 21
  19. Fritz Hartung: Bismarck and Count Harry Arnim, Historical Journal, Volume 171 (1951), 47
  20. Wolfgang Noack: A special criminal provision for the foreign service. The so-called "Arnim Paragraph" (§ 353a StGB), in: Monthly of the Association of German Foreign Officials, Issue 2, 1963, 33
  21. George O. Kent: Arnim and Bismarck, Oxford 1968
  22. Gerhard Kratzsch: Harry von Arnim - Bismarck rival and Frondeur. The Arnim Trials 1874–1876, Göttingen a. a. 1974
  23. Heinz Wolter: Harry von Arnim - Rival diplomat and conservative Frondeur, in: Gestalten der Bismarckzeit, ed. v. Gustav Seeber , Berlin 1978, 286
  24. Fritz Münch: Bismarck's affair Arnim - The politics of the diplomat and the responsibility of the statesman, Berlin 1990
  25. Karl-Alexander Hampe: Ambassador Harry Graf von Arnim - a political rebel or a disobedient civil servant ?, in: Foreign Service, quarterly magazine of the Association of German Foreign Officials, Issue I – II, 1990, 15
  26. Prof. Dr. Bernd Heinrich: Bismarck's Zorn - content and meaning of a "forgotten" fact, journal for the entire criminal law science, volume 110 (1998), 327
  27. Dr. Klaus Hermann Ringwald, Consul General ret. D. / Lawyer: The 'Arnim Paragraph' (§ 353a StGB) and the protection of foreign interests of the Federal Republic of Germany, Nomos-Verlag, Baden-Baden 2010, ISBN 978-3-8329-5118-4

Web links