Enlarge image
Locking a cell door in the Weiterstadt prison
Photo: Uwe Anspach / picture alliance / dpa
sanctions
Last week, the Federal Ministry of Justice presented a so-called draft bill for a “law to revise the law on sanctions”, i.e. a first draft for a corresponding draft law.
On the basis of such drafts, the opinions of other departments and associations are obtained, and occasionally there is a wait to see whether illuminating comments are made from the (legal) scientific literature.
The topic »sanctions law« – this means exclusively: the
criminal law
Sanctions law – would also be excellent for a “hearing of the population”, i.e. a census-like survey of citizens and residents of all identities, how they would like the criminal and sanctions law to be applied to them.
After the life expectancy, this would probably lead to some shocking results and, in the legislative implementation, to an extensive harmonization of the German criminal law state with the regulations in Russia, Nigeria, the USA or Singapore - naturally taking into account different identitarian needs.
In this respect it could be a powerful demonstration of the values that prevail in this country and are to be defended with the blood of any people!
systematics
The topic of today's discussion should only be Article 1 No. 2 of the draft bill.
It concerns the "principles of sentencing" in Section 46 of the Criminal Code (StGB) and reads:
»In Section 46 Paragraph 2 Sentence 2, a comma and the words ›gender-specific, directed against sexual orientation‹ are inserted after the word ›anti-Semitic‹.«
So far, Section 46 (1) and (2) reads as follows:
»(1) The guilt of the perpetrator is the basis for determining the penalty (...).
(2) During the assessment, the court weighs up the circumstances that speak for and against the perpetrator against each other. In particular, the following are considered:
The motives and the goals of the offender, especially racist, xenophobic, anti-Semitic or other inhuman
the attitude that speaks out of the deed and the will applied in the deed
(...)«
Leaving aside the issue of the generic masculine 'perpetrator' (as well as the generic neuter 'victim'), in order to understand the text properly one must realize the purpose of legal language and not want to despair immediately.
Like any other technical language, it strives for clarity.
In human communication, this can only be strived for in the best possible way, never fully achieved, as long as we have not yet pushed the blissful full digitization into our brains: Only when we communicate via Bluetooth and binary code will we be reasonably sure what word like » Day", "punishment", "cheese baguette" or "love".
The legal language – in contrast to the technical language of doctors, physicists or sound engineers – makes it even more difficult that it should also be understandable for everyone who is concerned, i.e. predominantly non-specialists.
However, since they learn, speak and communicate as they want and can, and because their lifestyle dictates it, and because they are not interested in general clarity but only in individual comprehensibility, this occasionally becomes somewhat difficult.
Having said that, I would like to draw your attention to the following three words of the quoted § 46 paragraph 2: "specifically", "particularly", "other".
When they appear in legal texts, these are not embarrassing words such as "somehow", "exactly" or "totally", but terms that mean something specific: They connect preceding and following terms and content in a specific way by distinguish between "general" and "particular," between a genus and its individual parts.
Example: "Motor vehicles, namely motorcycles" does not mean "motor vehicles
and
motorcycles" or "motor vehicles
or
motorcycles", but means that a motorcycle is an
example
for the genus »motor vehicle«.
Therefore, "namely motives and aims" are nothing other than the foregoing "circumstances," but examples of such.
And "particularly (the) racist, xenophobic, etc." are just examples of "inhuman motives."
Finally, the »other« are an open extension of the »inhuman« motives.
That sounds relatively complicated.
To be honest, it is.
Because behind the system of general and special terms and categories there is always content.
This is particularly noticeable here when one realizes that the cascade of examples allegedly only enumerates "by name", i.e. by way of example, what was announced above as "circumstances that speak for and against the perpetrator".
However, the catalog obviously does not contain a single circumstance that speaks in
favor of
the perpetrator, but only those that speak "particularly" against him.
If you wanted to be roughly consistent, you would have to write "especially xenophobic or xenophobic..."
The whole sentence is therefore at most a half-truth.
In reality, it is a painstakingly coded, penalty-enhancing rule that flatly contradicts its own premise.
circumstances
Let's assume that you should draw up a regulation that tells German criminal judges what rules they should use to determine the sentences they are to impose.
If you have time for mental adventures, you can sit down for half an hour and formulate a suggestion.
Everyone else may wonder how long the rule should be.
The simplest solution would be: »The penalty is to be measured within the respective penalty framework according to the circumstances«.
This is clear, and each judge can consider what is meant by "circumstances".
You can trust that no one thinks it is the status of the Bundesliga table.
But that German judges come up with the idea that there are circumstances that have to do with the act, its effects and the perpetrator.
How many different circumstances are there that meet this condition?
If “infinite” is too high for you, you have to say: thousands.
To list them all would be a nonsensical event, because in the end one is still missing.
And every »catalog« also has the assumption that it is complete, that »only« what is listed is important.
To avoid this, one cleverly inserts words like "namely" or "particularly," which means the same thing here and is only intended to provide literary variety.
It means: The "catalogue" consists of examples, but is open to the front.
In addition, one can add designations of entire genres of "circumstances" to the catalogue: eg "inhuman", "property law", "constitutional".
With that, a tip was given to those who are supposed to read and apply the regulation as to the direction in which the journey of the "by name" should go.
This is also done in § 46, paragraph 2: "Circumstances that speak for and against the perpetrator" is the starting point.
Then come the "motives" as a genus, and then individual motives as examples.
However, once you start opening a new conceptual category and filling it with "in particular" examples, it's extremely difficult to stop.
Because every example given provokes the question of why this and not (also) another "particularly" should apply.
If one finds "particularly inhumane" motives important: Why not animal cruelty, environmentally destructive, warmongering, child-hostile?
And if "anti-Semitic" motives are of particular concern, why not anti-Christian ones?
A deterrent example of such strange catalogues, by the way and for the sake of explanation, is also the provision on "particularly serious cases" of coercion (§ 240 StGB).
It was originally introduced to do the Federal Constitutional Court the favor of writing the »forced abortion« into law as a symbolic assurance of the protection of life.
No sooner had it been included in Article 240(4) than new "particularly serious cases" were added.
Their selection is completely arbitrary by nature: What people "particularly" would not like to be forced to do and what should therefore be considered "particularly difficult" in individual cases is extremely individual!
meanings
In order to understand the catalog of "special" circumstances in the sentencing provision, one must look at the explanatory memorandum to the law.
For the proposed addition of “gender-specific” and “sexual orientation-related” motives, the 87-page draft explanatory statement explains in great detail that two groups of offenses are meant: “acts directed against women” and “hate crimes against LGBTI people” .
Both are based on "criminal statistical evaluations" whose informative value is doubtful, but should be left aside here;
Something has already been said on several occasions about the importance of police statistics.
The problem I want to draw your attention to is a different one: the justification for the law is obviously based on the principle that the (criminologically dubious) statistical frequency of certain offenses or offense motives should have a direct influence on the amount of the sentence.
However, such a principle is neither implemented in current law nor theoretically obvious, systematically justifiable and constitutionally unproblematic.
All of the crime motives that are particularly common in reality are not listed in Section 46 of the Criminal Code and should not be listed in the future either.
Even if it were true that "acts against women" have empirically increased in social reality, there would be no reason to give them more weight in sentencing than "acts against children".
Crimes against men, crimes against the sick, etc., or any other crime that, for whatever reason, has been recorded more frequently in the police crime statistics.
The apparently »well-intentioned« addition of examples to the draft is about as meaningful and neutral as the wording »xenophobic, especially directed against Turks, Canadians and Kosovars...reasons«: hot air with extremely tendentious potential for interpretation.
It is difficult to understand when the many pages of justification for the aim of »violence against women« are translated into the wording »gender-specific«.
Both are obviously not identical.
Rather, the alleged identity is a highly disputed mere assertion by interest groups that is largely disputed in criminology.
It is scientifically legitimate to make such claims, but not to covertly use them as a basis for draft laws (only) because the personnel structure of some ministerial departments gives you the opportunity to do so.
The principle of this objection does not change, that the »right ones« are supposed to be in charge.
In concrete terms, the vast majority of acts of violence are committed by men against men and are often also "gender-specific" if one takes the very broad, socio-psychological meaning of the term used by the drafters as a basis.
The same applies to the offenses »against LGBTI persons« highlighted in the draft justification and the translation of this justification into the legal text »directed against sexual orientation«.
There is no recognizable factual reason for considering crimes motivated by “sexual orientation” to be regularly more important, worse, or more punishable than crimes motivated by religious or ideological orientation, social position and role, specific weaknesses, strengths, or other peculiarities.
"Hate crimes" are (predominantly) speech crimes based on or aimed at "hate".
There is no reason for criminal courts to "particularly" pay attention to whether people have been publicly insulted because they are gay, but not because they made an unpopular decision as mayor, or because they are old, fat, disabled , poor or rich.
patronage laws
If a political party or a ministry were to propose that the legally highlighted reasons for determining sentences should be supplemented by "motives" such as "particularly against top performers" or "particularly anti-market economy", public scorn and criticism would be certain, and rightly so.
Because on the one hand, the person as a victim of criminal offenses is not qualitatively different before the law, depending on whether his person suits him or not.
On the other hand, especially in criminal law, people are not mere objects of state purposes.
It would be difficult to reconcile with the principle of equality to stipulate by law that crimes motivated by "xenophobia" should always be punished particularly severely, but not "anti-native" crimes.
Of course, an “in particular” regulation such as Section 46 (2) of the Criminal Code does not really do that.
But she pretends
advertisement
Thomas Fisher
to be right
Miscellaneous from the world of criminal law: The best SPIEGEL columns by the ex-federal judge
Publisher: Droemer HC
Number of pages: 304
Miscellaneous from the world of criminal law: The best SPIEGEL columns by the ex-federal judge
Publisher: Droemer HC
Number of pages: 304
Buy for €20.00
price inquiry time
07/08/2022 4:16 p.m
No guarantee
Order from Amazon
Order from Thalia
Order from Weltbild
Product reviews are purely editorial and independent.
Via the so-called affiliate links above, we usually receive a commission from the retailer when you make a purchase.
More information here
In my opinion, that is not honest, but rather a nebulous clientele and shop window legislation that does not bring about clarity, but rather the opposite, and unfortunately also has exactly this motivation.
It transfers social "mood" and segmentary morals unfiltered into penal rules that are not suitable for this and in which they unfold uncontrollable effects.
That may suit you and suit you, as long as it is the "right" - i.e. usually your own - ideas and goals.
It changes abruptly when the power of definition changes.
If it were suggested that the criminal courts should in future pay attention to "particularly anti-state, anti-national and other harmful motives," most would probably rightly think that the end of the rule of law was imminent.
And not
because no "harmful" motive could be found that would be tolerable.
But because the general legal rule would be turned into a mere tool of interest politics.
It is already difficult enough to keep the legal discourses, justifications and decisions on a level of communicative rationality.
This should not be made more difficult by means of always supposedly "well-intentioned" clientele politics.
The German courts are - with the help of the other parties involved and on their own - certainly able to recognize "circumstances that speak for and against the perpetrator", and they can also fathom what "motives, goals and attitudes" were the basis of the sentenced act.
One should therefore refrain from enriching this legal rule with ever new tendencies.
If only to avoid the impression that the effects of symbolic customer service are more important than the rationality of the legal justification.