Principles of German Criminal Law

(A) Bohlander Prelims 1/12/08 16:28 Page i PRINCIPLES OF GERMAN CRIMINAL LAW German criminal law doctrine, as one of the more influential doctrines over time and on a global scale, takes rather different approaches to many of the problems of substantive law from those of the common law family of countries like the United Kingdom, the United States, Canada, New Zealand, Australia, etc. It also differs markedly from the system which is most often used in Anglophone writing as a civil law comparison, the French law. German criminal law is a code-based model and has been for centuries. The influence of academic writing on its development has been far greater than in the judge-oriented common law models. This book will serve as a useful aid to debates about codification efforts in countries that are mostly based on a case law system, but which wish to re-structure their law in one or several criminal codes. The comparison will show that similar problems occur in all legal systems regardless of their provenance, and the attempts of individual systems at solving them, their successes and their failures, can provide a rich experience on which other countries can draw and on which they can build. This book provides an outline of the principles of German criminal law, mainly the so-called ‘General Part’ (eg actus reus, mens rea, defences, participation) and the core offence categories (homicide, offences against property, sexual offences). It sets out the principles, their development under the influence of academic writing and judicial decisions. The book is not meant as a textbook of German criminal law, but is a selection of interrelated in-depth essays on the central problems. Wherever it is apposite and feasible, comparison is offered to the approaches of English criminal law and the legal systems of other common and civil law countries in order to allow common lawyers to draw the pertinent parallels to their own jurisdictions. Studies in International and Comparative Criminal Law: Volume 2 (A) Bohlander Prelims 1/12/08 16:28 Page ii Studies in International and Comparative Criminal Law General Editor: Michael Bohlander Criminal law had long been regarded as the preserve of national legal systems, and comparative research in criminal law for a long time had something of an academic ivory tower quality. However, in the past 15 years it has been trans- formed into an increasingly, and moreover practically, relevant subject of study for international and comparative lawyers. This can be attributed to numerous factors, such as the establishment of ad hoc international criminal tribunals and the International Criminal Court, as well as developments within the European Union, the United Nations and other international organisations. There is a myriad of initiatives related to tackling terrorism, money laundering, organised crime, people trafficking and the drugs trade, and the international ‘war’ on terror. Criminal law is being used to address global or regional problems, often across the borders of fundamentally different legal systems, only one of which is the traditional divide between common and civil law approaches. It is therefore no longer solely a matter for domestic lawyers. The need exists for a global approach which encompasses comparative and international law. Responding to this development, this new series will include books on a wide range of topics, including studies of international law, EU law, the work of specific international tribunals and comparative studies of national systems of criminal law. Given that the different systems to a large extent operate based on the idiosyncracies of the peoples and states that have created them, the series will also welcome pertinent historical, criminological and socio-legal research into these issues. Editorial Committee: Mohammed Ayat (ICTR, Kigali) Robert Cryer (Birmingham) Caroline Fournet (Exeter) Kaiyan Kaikobad (Brunel) Alex Obote-Odora (ICTR, Arusha) Dawn Rothe (Old Dominion University, VA) Silvia Tellenbach (Freiburg) Helen Xanthaki (IALS, London) Liling Yue (Beijing) Volume 1: The German Criminal Code: A Modern English Translation Michael Bohlander Volume 2: Principles of German Criminal Law Michael Bohlander (A) Bohlander Prelims 1/12/08 16:28 Page iii Principles of German Criminal Law Michael Bohlander OXFORD AND PORTLAND, OREGON 2009 (A) Bohlander Prelims 1/12/08 16:28 Page iv Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © Michael Bohlander 2009 Michael Bohlander has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below. Hart Publishing Ltd, 16C Worcester Place, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84113-630-1 Typeset by Hope Services, Abingdon Printed and bound in Great Britain by CPI Antony Rowe Ltd, Chippenham (A) Bohlander Prelims 1/12/08 16:28 Page v To my parents Ruth Emmi Bohlander and Heinrich Benjamin Bohlander God could not be everywhere and therefore he made mothers. Jewish Proverb One father is more than a hundred schoolmasters. George Herbert, Outlandish Proverbs, 1640 (A) Bohlander Prelims 1/12/08 16:28 Page vi (A) Bohlander Prelims 1/12/08 16:28 Page vii PREFACE This book is meant as a companion to my translation of the German Criminal Code, recently published by Hart. Despite the fact that there are many publica- tions that deal with individual comparative aspects of German criminal law, a coherent presentation of the main principles in English has been missing so far. I hope that the book together with the Criminal Code translation will give readers a reliable first impression of the German law. Principles of German Criminal Law has been long in the making and I must first of all thank Richard Hart for his patience in waiting for the manuscript, due date after due date, and all the staff at Hart Publishing for their professional and diligent support, also with the previous Criminal Code translation. The writing of the final chapters was greatly aided by a six-week sabbatical which I spent in the United States in March and April 2008 at the invitation of the Department of Sociology, Anthropology and Criminology of the University of Northern Iowa. I thank its Head of Department, Professor Kent Sandstrom, and the Dean of the College of Behavioral and Social Sciences, Professor John W Johnson, for the exemplary hospi- tality and generosity that was extended to me during my stay. I am furthermore indebted to the Department of Law at the University of Durham for its generous research leave policy. A former student of mine, Ms Anna Fingerit, graciously assisted me in gathering Anglophone materials in the preparatory phase. Professor Clare McGlynn kindly gave helpful comments on the sexual offences chapter. A big thank you must again go to Chris Newman, Senior Lecturer, of Sunderland University, who read the entire text and made sure that the offence to native speaker sensibilities was kept to a minimum. Stefan Kirsch, criminal defence attorney from Frankfurt, Germany, and advisory board member of the Durham Centre for Criminal Law and Criminal Justice, read the chapters and commented on the substance from the German point of view; to him I also owe a debt of deep gratitude. Most of all, I am immensely grateful to my dear friend and colleague, Professor Dawn L Rothe, now at Old Dominion University in Virginia, for taking me into her home during my stay in Iowa, for looking after me so well and making me feel like family, at a time when she herself was going through a very difficult patch fighting a serious disease. Without her, my stay would not nearly have been half as rewarding. Thanks also to the family Husky, Tasha Rae, for being such a considerate, civilised and cuddly canine. Christine and Laura, thank you for letting me go away yet again for such a long time, and for your continuous understanding and support. You both are a blessing in my life. Durham, June 2008 Michael Bohlander vii (A) Bohlander Prelims 1/12/08 16:28 Page viii (A) Bohlander Prelims 1/12/08 16:28 Page ix TABLE OF CONTENTS Preface vii List of Abbreviations xiii 1. Introduction 1 Purpose of the Book 1 History and Development 2 German Materials Used 3 A Note on Citation 4 Chapter Overview 4 2. Basic Concepts and Terminology: An Overview 7 The Ideology of German Criminal Law 7 Sources of Criminal Law and Hierarchy of Norms 10 Principles of Interpretation and the Role of Precedent 15 The Tripartite Structure of Offences—an Overview 16 Basic Tenets of German Criminal Policy 18 Nullum Crimen Sine Lege Scripta 18 Rechtsgüterlehre and Schutzzweck der Norm 18 Schuldprinzip 20 Capacity and the Treatment of Juveniles and Young Adults 22 Corporate Criminal Liability 23 Rule-of-law Principles in Substantive Criminal

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