Denigration of the memory of the deceased

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The disparagement of the memory of the deceased is a criminal offense that is standardized in Germany in Section 189 StGB and is punishable by imprisonment of up to two years or a fine . According to Section 194 (2) of the Criminal Code, the offense is an application offense ; the relatives named in Section 77 (2) of the Criminal Code have the right to apply .

Legal interest

Since in a rational criminal justice system a deceased cannot have an upgradeable honor to be protected by a sanction, it is not easy to determine the legal value of the provision. According to the wording, it is not the honor of the dead but his memory that is protected, which speaks for an evaluation among the living. According to the prevailing opinion , the norm protects the sense of piety of the relatives and the human dignity of the deceased, which continues as a postmortem personal right after his death.

The “family honor” is mostly not counted among the protected legal interests. A minority opinion, however, derives from the connection with the disturbance of the peace of the dead acc. Section 168 of the Criminal Code and the requirement for a criminal complaint that the honor of the bereaved in connection with the deceased is also protected.

Offense

The offense presupposes the death of the vilified person before an insult occurred. The intent of the perpetrator, which is also conditionally possible, must extend to this.

A disparagement is only given in the case of a gross and serious degradation. The required degree of severity is given if it is a "particularly serious offense in terms of form, content or motive", which can also be committed physically on the corpse itself. The severe degradation is always accepted in the case of slander , but in the case of defamation , if it has "some weight". Whether an insult according to § 185 StGB fulfills the criteria depends on the accompanying circumstances.

A denigration is also possible under a collective name and can affect people who are connected by the circumstances of their death. This was affirmed in the case of Holocaust denial , for example at events in the course of which the Leuchter Report or the Rudolf Expert Report were propagated, so that in addition to the incitement of the people , the offense of vilifying the memory of the deceased was actually fulfilled.

Individual evidence

  1. ↑ Thomas Fischer , § 189, denigration of the memory of the deceased , marginal no. 2, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 1277
  2. ↑ Thomas Fischer, § 189, denigration of the memory of the deceased , marginal no. 2, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 1277
  3. ↑ § 189 Rn. 1, denigration of the memory of the deceased , in: Penal Code with Explanations, Lackner / Kühl, CH Beck, Munich 1997, p. 861
  4. ↑ Thomas Fischer, § 189, denigration of the memory of the deceased , marginal no. 2, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 1277
  5. ↑ § 189 Rn. 3, denigration of the memory of the deceased, in: Penal Code with Explanations, Lackner / Kühl, CH Beck, Munich 1997, p. 861
  6. ↑ Thomas Fischer, § 189, denigration of the memory of the deceased , marginal no. 3, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 1277
  7. ↑ Thomas Fischer, § 189, denigration of the memory of the deceased , marginal no. 3, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 1278