Definition and Legal Classification of Treason
The term “treason” in a legal context refers to conduct in which a person disloyally discloses to third parties an entrusted or accessible piece of information, a secret, or a duty, thereby violating the trust of an individual, an organization, or the state. In German law, offenses involving treason are particularly significant where the confidentiality interests of legally protected assets—such as state secrets, private secrets, or trade secrets—are at stake. Treason primarily includes acts relevant under criminal law but is also of relevance from a civil law and disciplinary law perspective.
Treason under Criminal Law
Treason of State Secrets
The German Criminal Code (StGB) regulates various treason offenses centrally in the section on ‘Treason and Endangerment of External Interests’ (§§ 94 et seq. StGB). This primarily includes treason against the state (§ 94 StGB), which refers to the disclosure of state secrets. A state secret exists when information is only known to a specific group of people and its disclosure is likely to endanger the external security of the Federal Republic of Germany.
Elements of the Offense and Penalties
An offender is liable for treason against the state if they communicate or make accessible a state secret to a foreign power or its agents. The penalty ranges from imprisonment of not less than one year up to life imprisonment, depending on the degree of endangerment.
Disclosure of Official Secrets (§ 353b StGB)
The betrayal of official secrets primarily concerns officials or persons with a special obligation to the public service. Anyone who intentionally reveals a secret entrusted to them in relation to their official position and whose disclosure could cause significant harm to the Federal Republic of Germany or another body, fulfills the offense under § 353b StGB. Even negligent disclosures may be classified as a regulatory offense or disciplinary violation.
Disclosure of Private Secrets (§ 203 StGB)
The protection of private secrets, especially those subject to confidentiality (for example, in healthcare professions, among Rechtsanwalt, or notaries), is governed by § 203 StGB. The disclosure of another person’s secret that became known within a special relationship of trust is punishable here and may be sanctioned with imprisonment for up to one year or a fine.
Industrial Espionage and Disclosure of Trade Secrets
The disclosure of trade and business secrets is also a criminal offense (§§ 17, 18 UWG – Act Against Unfair Competition). Unauthorized transmission, use, or exploitation of trade secrets, especially to competitors, constitutes either a crime or an administrative offense and can lead to severe sanctions.
Civil Law Aspects of Treason
Claims for Damages and Injunctive Relief
In civil law, the unauthorized disclosure of secrets, in addition to criminal liability, generally gives rise to a claim for injunctive relief and/or damages under the provisions on unlawful acts (§§ 823 et seq. BGB). The affected legal interest—such as the general right of personality or the right to one’s own trade secret—is protected against unlawful infringement by third parties.
Employment Law Significance
Under employment law, the disclosure of business or trade secrets by employees can have serious labor law consequences, up to and including immediate termination without notice. In addition, there are contractual ancillary obligations that protect confidentiality.
International Legal and Historical Perspectives
Espionage and Treason in International Law
In the international context, treason is often considered in connection with espionage. International law regards espionage as an act contrary to international law. States reserve the right to prosecute discovered spies under their national laws.
Treason in Military Law
In military and martial law, treason—particularly in the form of desertion, disclosure of military secrets, or disobedience in war—is prosecuted with particular severity. Historically, this could be treated as high treason or even as a war crime.
Distinctions and Related Terms
High Treason (§ 81 StGB)
High treason must be strictly distinguished from ordinary treason. Pursuant to § 81 StGB, it covers acts directed against the constitutional order or the existence of the state and, for example, includes attempts to abolish the Federal Republic of Germany by force.
Breach of Trust and Disloyalty
The terms breach of trust or disloyalty are legally independent and govern other breaches of duty, such as the unauthorized disposition of someone else’s assets (§ 266 StGB).
Legal Consequences and Procedures
In the case of proven treason, criminal law provides for prosecution by the authorities. In addition to criminal sanctions, there may also be civil claims for damages, employment law measures, and disciplinary proceedings.
References and Relevant Laws
– German Criminal Code (StGB), especially §§ 94 et seq., 203, 353b
– Act Against Unfair Competition (UWG), §§ 17, 18
– German Civil Code (BGB), §§ 823 et seq.
Summary
The term treason covers a broad spectrum of legally relevant behaviors. Depending on the type of secret or interest betrayed, various legal norms may apply, which provide for civil, criminal, and sometimes even public law sanctions for violations. Comprehensive protection of confidentiality interests is a central component of the law and serves to preserve and safeguard individual, economic, and state interests.
Frequently Asked Questions
What are the legal consequences of treason under German criminal law?
Under German criminal law, treason is sanctioned in various forms, particularly as treason against the state (§§ 94 et seq. StGB), betrayal of secrets (§ 203 StGB), or disclosure of official secrets (§ 353b StGB). Treason against the state, for example, includes the disclosure of state secrets to a foreign power or for its benefit, thereby endangering the Federal Republic of Germany or its constitution. The offense carries very severe prison sentences and is often prosecuted by the Federal Prosecutor’s Office, with special investigative measures such as surveillance or searches being permitted. The disclosure of official secrets particularly concerns officials and persons subject to special professional confidentiality obligations. Here, penalties may involve fines or imprisonment, which vary according to the seriousness of the offense and the transmission and exploitability of the information. In addition to state sanctions, civil claims for damages may arise in individual cases.
Are there different types of treason?
German law differentiates between various forms of treason, depending on the legal interest affected. The most serious is treason against the state (§§ 94 et seq. StGB), which aims to protect the state and its fundamental institutions. In addition, there are offenses involving the betrayal of secrets that protect professional, business, or personal secrets (§ 203 StGB: Violation of private secrets, § 17 UWG: Betrayal of business and trade secrets). Furthermore, criminal law distinguishes between active disclosure (revelation) and simply making information accessible or negligent disclosure. The various offenses each have their own definitions, sanctions, and protected domains.
Who can be criminally liable for treason?
Legal liability for treason is tied to specific prerequisites. In the case of treason against the state, basically anyone, including non-Germans, can be held criminally liable, provided the act is directed against the Federal Republic of Germany. For the violation of private secrets (§ 203 StGB), only persons who are bound to confidentiality by virtue of their profession or office are liable, such as doctors, Rechtsanwalt, social workers, or office holders. For trade secrets violations (§ 17 UWG), liability is attached to individuals who, in the course of their professional activities, have access to sensitive information. Third parties may also be liable if they incite or aid in the commission of treason.
What is the significance of intent in punishable treason?
A key prerequisite for criminal liability for treason is generally intent, that is, the knowledge and will to carry out the act and its unlawfulness. In cases of treason against the state, for example, the perpetrator must at least have accepted that they are passing secrets to a foreign intelligence service and thereby endangering the security of the Federal Republic of Germany. In most cases, intent is also required for the betrayal of business or official secrets, although certain offenses may also be punishable in cases of gross negligence (e.g., negligent violation of official secrets according to § 353b (4) StGB). Proof of intent is therefore central to successful prosecution.
Can attempted and preparatory acts also be punishable?
In the area of treason, certain preparatory acts and attempts are already punishable. For example, § 96 StGB (Preparation of High Treason) penalizes the procurement, production, or provision of documents that one knows can be used for treasonous purposes. The attempt of treason against the state is also a criminal offense (§ 23 (1) StGB in conjunction with § 94 StGB), so that even offering a state secret to a foreign power can lead to criminal liability, even if the treason itself has not yet been fully carried out. The punishability of attempts in the case of offenses involving the betrayal of secrets varies depending on the offense.
What role does the consent of the secret’s holder play in treason?
The consent of the person affected by disclosure can exclude criminal liability for treason—for example, in the case of betrayal of secrets. If the person whose secret is involved expressly and knowingly consents to disclosure, liability does not arise, since the legal interest is no longer violated. However, it must be ensured that consent is given voluntarily, specifically, and comprehensively. In cases of treason against the state, however, consent is generally irrelevant, because overriding state interests are involved, which cannot be disposed of by individuals.
Under what circumstances can a criminal case for treason be dropped?
A criminal case for treason can be discontinued for various reasons. Dismissal often becomes possible if there is insufficient suspicion or exonerating circumstances arise during investigations. For minor breaches of confidentiality obligations in the employment context, the public prosecutor’s office may dismiss the case pursuant to § 153 StPO, especially if there is no public interest in prosecution. In the case of treason against the state, however, prosecution is usually mandatory, and dismissal is subject to very strict conditions (e.g., dismissal due to minor culpability in exceptional circumstances with court approval pursuant to § 153a StPO). In addition, the Federal Public Prosecutor General can discontinue proceedings if there is no longer any threat to state security.
