Resistance to law enforcement officers

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The resistance against enforcement officials is an inspection form of resistance against the state . The offense is standardized in Section 113 of the German Criminal Code.

History of origin

In the German-speaking region, legal norms have existed for a long time that specifically criminalize resistance to the actions of administrators. For example, Section 89 of the Prussian Penal Code of 1851 provided for a prison sentence of fourteen days to two years for disrupting an official act. A largely identical regulation was incorporated into the Reich Criminal Code (RStGB), which came into force on January 1, 1872, as Section 113 . This provision was qualified by § 114 RStGB, the offense of coercion of civil servants. This ordered a prison sentence of at least three months up to five years if an official was required to perform or omit an official act. Both regulations were thus systematically designed as qualifications of simple coercion (§ 240 RStGB), which could be sanctioned with up to one year in prison.

In 1943, the National Socialist legislature added Section 113 of the Criminal Code in Paragraph 4 to include a previously non-existent criminal offense . He also increased the coercion sentence to up to five years in prison. This changed Section 113 of the Criminal Code into a privileged form of coercion.

In 1953, the legislature abolished the trial criminality under Section 113 of the Criminal Code with the Third Criminal Law Amendment Act, as it viewed the provision as an exaggerated expression of the National Socialist criminal law.

Against the background of the emergency legislation and the student unrest , the legislature tackled a revision of Section 113 of the Criminal Code at the end of the 1960s. This came into force on May 22, 1970 as part of the third penal reform law. It led to the inclusion of rule examples in the regulation, which suggest a higher threat of punishment to the judge who decides in the individual case for certain forms of inspection, for example when carrying a weapon .

After minor changes in 1974 and 1998, a major revision of Section 113 StGB was carried out by the 44th Act amending the Criminal Code of 2011. The legislature justified this with an increased number of cases under Section 113 StGB. The offense of § 113 StGB has been tightened and at the same time the maximum possible penalty for the basic offense has been increased from two to three years imprisonment, the minimum penalty is a fine.

Section 113 of the Criminal Code was given its current form by the 52nd Criminal Law Amendment Act, which came into force on May 30, 2017. As a result, the legislature removed the form of assault from Section 113 of the Criminal Code and expanded it into an independent offense in Section 114 of the Criminal Code with a stricter threat of up to five years imprisonment. The previous Section 114 StGB, which extended the scope of Section 113 StGB to additional groups of people, became Section 115 StGB. This reform was also intended to counter the increase in acts under Section 113 of the Criminal Code. It was based on a request from the police union .

Resistance to law enforcement officers (§ 113 StGB)

Legal text

Since it was last changed on May 30, 2017, the offense of resistance against enforcement officers has been as follows:

(1) Anyone who uses violence or threats to resist a public official or soldier in the Bundeswehr who is called to enforce laws, ordinances, judgments, court orders or orders when performing such an official act, is subject to a prison sentence of up to three years or punished with a fine.

(2) In particularly serious cases, the penalty is imprisonment from six months to five years. A particularly severe case is usually when

1. the perpetrator or someone else involved has a weapon or other dangerous tool with him,
2. the perpetrator, through violence, puts the attacked person at risk of death or serious damage to health, or
3. the act is committed jointly with another person involved.

(3) The act is not punishable under this provision if the official act is not lawful. This also applies if the perpetrator erroneously assumes that the official act is lawful.

(4) If, when committing the act, the offender erroneously assumes that the official act is not lawful, and if he was able to avoid the error, the court may at its discretion mitigate the sentence (Section 49 (2)) or, if the guilty one is less guilty, a punishment refrain from this regulation. If the perpetrator could not avoid the mistake and, according to the circumstances known to him, could not be expected to defend himself against the allegedly unlawful official act with legal remedies, the act is not punishable under this provision; if he could be expected to do so, the court may, at its discretion, mitigate the sentence (Section 49 (2)) or refrain from punishing under this provision.

The protected legal interest of the criminal provision is the realization of the state interest in enforcement by the state organs called for enforcement. By reinforcing an act of resistance involving the use of force or the threat of it, the legal protection of public officials who are exposed to particular dangers through resistance during enforcement measures is to be strengthened. The arrest of drunk people is one of the typical case constellations .

Because of the range of sentences of imprisonment of up to three years or a fine, § 113 StGB is an offense in accordance with § 12 Paragraph 2 StGB.

In particularly serious cases, resistance to or assault on law enforcement officers is punished with imprisonment from six months to five years. According to the version valid since May 30, 2017, a particularly serious case is usually when the perpetrator carries a weapon or a dangerous tool, puts the attacked person at risk of death or serious damage to health through violence, or the act with a other parties involved.

Objective fact

Public official or soldier in the Bundeswehr

The perpetrator's act must be directed against an enforcement officer or a soldier in the Bundeswehr . This includes all domestic officials within the meaning of Section 11 (1) No. 2 StGB and, in addition to soldiers of the Bundeswehr within the meaning of Section 1 (1) SG, also soldiers or officials of the troops stationed in the Federal Republic of Germany of the non-German states party to the North Atlantic Pact who are at the time of the act in the territorial scope of the NATO Troop Protection Act (NTSG) ( Section 1 (2) No. 5 NTSG).

Performing an official act

The public official must be called to enforce a law, an ordinance, judgments, court orders or orders. The offender's resistance must be directed against such an official act. The enforcement act must have already started and still be ongoing. But at least it must be imminent.

These are all acts that are aimed at enforcing a specific sovereign measure such as police or court orders in individual cases. Examples of this are the instruction of a police officer to stop in the context of a general traffic control or the dissolution of a demonstration , a bailiff who carries out an attachment of property on the debtor or if a judge in the exercise of police -court powers expels a person from the meeting room (§§ 176 ff., § 177 GVG ).

Resistance to the official act

The perpetrator must resist the official act with violence or threats of violence.

Resistance is to be understood as an active activity towards the enforcement officer with the character of coercion, with which the implementation of an enforcement measure is to be prevented or made more difficult. According to the protective purpose of Section 113 of the Criminal Code, the violence must be directed against the public official and be physically palpable for him - directly or indirectly through things. Mere escape from the police is not a (violent) resistance, even if it may endanger third parties or injure them unintentionally.

According to the case law of the Federal Constitutional Court , violence is not to be equated with acts of violence against another person. In connection with sit-ins, it only found that the mere physical presence in a place, which exerts force on the psyche of other people without any further development of force, is not the use of force.

However, acts such as holding on to objects and pressing their feet against the ground that a person uses to prevent them from being moved to another place are acts of resistance by means of violence. Just like the assault directed directly against the body of the public official, which is separately punishable in Section 114 (1) of the Criminal Code, such behavior is characterized by the often not inconsiderable use of physical strength and must be overcome by the use of considerable force. For the addressee of the penal norm, too, they differ from purely passive acts of resistance.

Legality of the official act

According to Section 113 (3) of the Criminal Code, resistance against law enforcement officers is not punishable if the official act is not lawful . This also applies if the perpetrator erroneously assumes that the official act is lawful.

Whether the legality is an “unlawful constitutive element of the offense” or an objective condition of criminal liability or whether the illegality of the official act constitutes a justification is controversial.

According to the case law of the Federal Court of Justice , the legality of the official act is neither strictly ancillary to the material legality of the legal area on which the act is based (mostly material administrative law ) nor according to the legality according to the relevant enforcement law. The legality of the sovereign act in a criminal sense only depends on the fact that "the external prerequisites for the intervention of the officer" are given, "he is locally and factually responsible", he complies with the prescribed essential formalities and is his exercise any discretion that may have been granted .

Subjective fact

In the subjective fact, intent is required. If the legality of the official act is viewed as a constituent element, negligence is sufficient . Negligence does not even need to be an objective condition of criminal liability. Passive resistance can also be punishable, for example suddenly locking yourself in.

The attempt of the offense is not punishable (no corporate offense ), so that the special error rules of § 113 para. 3 and 4 apply the Criminal Code. Since the perpetrator can seek legal protection against the erroneously lawful official acts, the penalty according to Paragraph 4 is only moderated optionally.

Competitions

Insofar as a defendant prevents an official act, for example by using a blank firing revolver, he fulfills the offense of Section 113 (1) StGB at the same time as coercion under Section 240 StGB. However, since every resistance offered at the same time pursues the purpose of compelling the officials concerned to tolerate or to refrain from doing so, the offense of Section 240 of the Criminal Code is withdrawn in competition . This means that Section 113 of the Criminal Code is to be applied as a lex specialis alone. A uniform conviction for (attempted) coercion must therefore be omitted.

Unity of offense is conceivable within the scope of § 113 StGB with crimes of bodily harm , property damage offenses and trespassing .

There is also a natural unity of action with regard to several consecutive acts of resistance.

Assault on law enforcement officers and persons treated as such (§§ 114, 115 StGB)

As of May 30, 2017, the criminal offense of assaulting enforcement officers during an official act was regulated in Section 114 of the new version of the Criminal Code. The official act does not have to be an enforcement act. Consider z. B. police patrol activity, questioning passers-by, accident recordings, radar monitoring, tire checks, interrogations of suspects or accompanying demonstration trains. It is not the (passive) resistance to enforcement acts, but an active physical attack on public officials or soldiers of the Bundeswehr when performing lawful official acts with imprisonment of three months to five years. An assault is to be understood as an “action aimed directly at the body of another in a hostile direction”. For particularly serious cases that are punished with imprisonment from six months to five years, Section 114 (2) of the Criminal Code refers to Section 113 (2) of the Criminal Code.

Resistance to as well as assault on persons who are on an equal footing with law enforcement officers are recorded via § 115 StGB new version . These are, for example, game guards, and in the event of an accident, danger or common emergency, also helpers from the fire brigade , disaster control or rescue service .

Side effects

Holders of a hunting license can be withdrawn and blocked in the event of a conviction according to Sections 113 to 115 of the Criminal Code ( Section 41 (1) No. 2 BJagdG ).

If an extract from the Federal Central Register results in a conviction for resistance to or assault on enforcement officers or against or on persons who are on an equal footing with enforcement officers, the reliability required for the granting of a license in the security industry is generally not available ( Section 34a (1) sentence 4 number 4 letter b, sentence 5 no. 2 GewO ).

statistics

According to the police crime statistics , a total of 47 609 law enforcement officers within the meaning of Sections 113 and 114 of the Criminal Code were victims of a corresponding crime in 2017, including 47 495 law enforcement officers .

In 2015 around 4,700 people were convicted under Section 113 of the Criminal Code.

Ancillary criminal law

Aviation Security Act

During a flight, the pilot takes acc. § 12 Aviation Security Act (LuftSiG) fulfills the sovereign task of averting danger as a borrower in addition to the aviation authorities. Pursuant to Section 20 (1) of the Aviation Security Act, anyone who, as a person on board, does not obey the instructions of the pilot or his agents is acting improperly. Anyone who resists with violence or threats to use violence will be punished with imprisonment (Section 20 (2) and (3) Aviation Security Act).

The regulation addresses the problem of Unruly / Disruptive Passengers (insubordinate passengers). The member states of the International Civil Aviation Organization (ICAO) were called upon by Council Resolution A 33-4 after the terrorist attacks on September 11, 2001 to take action in this area, in particular by creating sanctions regulations.

Seaman's Law

Until the expiry on August 1, 2013, there was an offense of violent resistance to measures by superiors to maintain security and order on board in accordance with Section 116 of the Seemannsgesetz (SeemG), cf. Arrest # special cases .

With the Maritime Labor Act (SeeArbG), the provisions on criminal offenses and administrative offenses previously contained in the Seemannsgesetz were fundamentally modernized. With regard to the penal provisions, only those provisions from the Seaman's Act were adopted that are particularly unlawful and that cannot be punished under other provisions, in particular the Criminal Code. According to § 145 Abs. 1 Nr. 16b, § 124 Abs. 1 Clause 2 SeeArbG, non-compliance with official orders, unlike in § 115 SeemG, is no longer a criminal offense, but only an administrative offense. § 116 SeemG was not included in the SeeArbG accepted.

literature

Web links

 Wikinews: Resistance Against Law Enforcement Officers  - On The News

Individual evidence

  1. ↑ In detail on the history of the origin of Hans-Ullrich Paeffgen: § 113 , Rn. 1. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  2. ↑ Nikolaus Bosch: The resistance against enforcement officers (§113 StGB) - basic cases and reform approaches . In: Jura 2011, p. 268.
  3. ↑ BGBl. 1953 I p. 735 .
  4. ↑ Hans-Ullrich Paeffgen: § 113 , Rn. 1. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  5. ↑ a b Nikolaus Bosch: § 113 , Rn. 5. In: Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 3 : §§ 80-184j. CH Beck, Munich 2017, ISBN 978-3-406-68553-8 .
  6. ↑ BGBl. 1974 I p. 469 .
  7. ↑ BGBl. 1998 I p. 164 .
  8. ↑ BGBl. 2011 I p. 2130 .
  9. ↑ Tobias Singelnstein, Jens Puschke: Police, violence and criminal law - On the changes in the resistance to enforcement officers NJW 2011, pp. 3473-3536
  10. ↑ Hans-Ullrich Paeffgen: § 113 , Rn. 1a. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  11. ↑ Amendment of § 113 StGB by the forty-fourth law amending the Criminal Code - Resistance against enforcement officers of November 1, 2011 Federal Law Gazette I p. 2130.
  12. ↑ a b Federal Law Gazette 2017 I p. 1226 .
  13. ↑ Dominik König, Sebastian Müller: Classification of the new § 114 StGB in the previous system of "acts of resistance". ZIS 2018, pp. 96-102
  14. ↑ On the genesis of Mark Zöller: New criminal offenses to protect against violence against police officers? In: Journal for International Criminal Law Doctrine 2015, p. 445 f.
  15. ↑ Martin Heger: § 113 , Rn. 1. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 . Mark Zöller, Marion Steffens: Basic problems of resistance against law enforcement officers (§ 113 StGB). In: Juristische Arbeitsblätter 2010, S. 161. Nikolaus Bosch: The resistance against enforcement officers (§113 StGB) - basic cases and reform approaches . In: Jura 2011, p. 268.
  16. ↑ BVerfG, decision of April 30, 2007 - 1 BvR 1090/06 marginal no. 32
  17. ↑ Michael Kubiciel : Written version of the statement in the public hearing before the Legal Committee of the German Bundestag on March 22, 2017 on the government draft of a law to amend the Criminal Code - Strengthening the protection of enforcement officers - BT-Drs. 18/11161 University of Cologne, p. 3
  18. ↑ cf. also Gisa Pahl: When does one commit a "resistance against enforcement officers" (§ 113 StGB)? Website accessed March 1, 2019
  19. ↑ BGH NStZ 2013, 336
  20. ↑ BGHSt 18, 133; Lackner / Kühl, 28th edition 2014, § 113 StGB margin no. 5
  21. ↑ BGH NStZ 2013, 336; Fischer StGB, 62nd edition 2015, § 113 Rn. 23
  22. ↑ BGH, decision of January 15, 2015 - 2 StR 204/14 para. 7th
  23. ↑ cf. BVerfGE 92, 1, 16 ff .; 104, 92, 101 f. [BVerfG October 10, 2001 - 1 BvL 17/00]
  24. ↑ cf. OLG Cologne, VRS 71, pp. 183, 186; v. Bubnoff, in: Criminal Code, Leipziger Commentary, 11th edition, § 113 Rn. 15th
  25. ↑ cf. OLG Cologne, VRS 71, p. 185 and already RGSt 2, 411, 412
  26. ↑ BVerfG, proof of 23 August 2005 - 2 BvR 1066/05, no. 2
  27. ↑ Schönke / Schröder / Eser StGB, 29th edition 2014, § 113 Rn. 20; Kindhäuser Criminal Law BT I, 8th edition 2017, § 36 Rn. 44
  28. ↑ Satzger / Schluckebier / Widmaier / Fahl StGB, 3rd edition 2016, § 113 Rn. 10; BGHSt 4, 161
  29. ↑ Lackner / Kühl / Heger StGB, 28th edition 2014, § 113 Rn. 18; Nomos Commentary StGB / Paeffgen, 5th edition 2017, § 113 Rn. 70
  30. ↑ cf. Dogmatic classification of the legality requirement in § 113 III website of the University of Freiburg, accessed on March 1, 2019
  31. ↑ BGH, judgment of 9 June 2015 - 1 StR 606/14 marginal no. 25 ff.
  32. ↑ see LK-StGB / Rosenau, 12th edition, Rn. 89 on Section 113 of the Criminal Code
  33. ↑ cf. BGH, judgment of February 20, 2003 - 4 StR 228/02, BGHSt 48, 233 ff. [Still on the old legal situation]; see. also Fahl StV 2012, 623, 624 mwN with criticism of the assumption of privileged status; Fischer, StGB, 64th edition, § 113 Rn. 2
  34. ↑ BGH, decision of April 4, 2017 - 1 StR 70/17 para. 3
  35. ↑ Hans-Ullrich Paeffgen: § 113 , Rn. 90. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  36. ↑ cf. BGH, decision of June 28, 2007 - 3 StR 234/07
  37. ↑ BGH, ruling of 7 September 2016 - 4 StR 221/16 marginal no. 5
  38. ↑ BeckOK StGB, v. Heintschel-Heinegg Status: February 1, 2018, § 114 Rn 4
  39. ↑ RGSt 59,265
  40. ↑ Police crime statistics (PKS) . Yearbook Volume 2 Victims, p. 31. Link to download from the BKA website , accessed on March 1, 2019 (PDF, 599 KB)
  41. ↑ Federal Statistical Office : Administration of Justice, Prosecution, Special Series 10, Series 3, 2015, p. 128
  42. ↑ adopted at the 33rd General Assembly in Montreal from September 25 to October 5, 2001, published in ICAO Circular 288-LE / 1 - "Guidance Material on the Legal Aspects of Unruly / Disruptive Passengers", 2002, p. 13
  43. ^ Draft of a law for the new regulation of aviation security tasks BT-Drs. 15/2361 of January 14, 2004, p. 23
  44. ↑ Steffen Kroschwald: Security Measures at Airports in the Light of Fundamental Rights University of Kassel 2012, p. 14 ff.
  45. ^ Draft of a law for the implementation of the Maritime Labor Convention 2006 of the International Labor Organization BT-Drs. 17/10959 of October 10, 2012, p. 113 ff.