Breach of the public peace
Definition and significance
Breach of the public peace is a criminal offense under German criminal law, regulated in Section 125 of the German Criminal Code (StGB). It refers to participation in acts of violence against persons or property by a crowd that disturbs public peace. The aim of the provision is to protect public peace and ensure public safety at gatherings and crowds.
Legal foundations
Section 125 StGB – Breach of the public peace
The offense of breach of the public peace is codified in Section 125 StGB. The wording is as follows:
Section 125 StGB – Breach of the public peace
(1) Anyone who participates in acts of violence against people or property, committed by a crowd acting with united force, or in a threat to people with violence that endangers public security or order, shall be punished with imprisonment for up to three years or with a fine.
(2) In particularly serious cases, the penalty is imprisonment of six months to ten years.
(3) Attempt is punishable.
In addition to Section 125 StGB, there are further regulations for qualified forms of this offense, in particular Section 125a StGB (aggravated breach of the public peace) and Section 125b StGB (particularly serious case of breach of the public peace).
Elements of the offense
Objective elements of the offense
Crowd
A crowd for the purposes of breach of the public peace exists when an indeterminate number of people are assembled in such a way that law enforcement authorities cannot intervene immediately and without difficulty. The minimum number is assessed differently in literature and case law, but it is generally assumed to be around 15 to 20 people. What is decisive is the threat posed, not the exact number.
United action
The crowd must act with united force, meaning its behavior must be characterized by a collective intent or action. It is sufficient if individual persons appear with the willingness to perpetrate or threaten violence jointly, as long as this occurs as a group action.
Use of force or threat
The element is either the use of force against persons or property or a threat to persons with a violent act that endangers public security or order. The force must exceed minor assaults and be capable of seriously disturbing the public peace.
Act of participation – involvement
Participation can occur through active involvement, support, or appearing on behalf of the crowd. Anyone who intentionally behaves as part of the crowd and contributes to its potential for violence may fulfill the offense.
Subjective elements of the offense
On the subjective level, at least conditional intent regarding all objective elements of the offense is required. The perpetrator must therefore understand and accept that they are participating in such an action.
Serious and particularly serious cases
Aggravated breach of the public peace (Section 125a StGB)
The elements of aggravated breach of the public peace require that, in connection with a breach of the public peace, one of the increased risk situations listed in Section 125a StGB is realized, for example if
- a weapon is carried,
- significant damage to property is caused,
- a considerable number of persons are involved.
Particularly serious case (Section 125b StGB)
The particularly serious case regulates an increased penalty, for example if a person is killed or a series of serious offenses are committed as a consequence of the act.
Attempt and aiding
According to Section 125 (3) StGB, the attempt of breach of the public peace is also punishable. Forms of participation such as incitement and aiding are likewise covered and are prosecuted according to the general rules of the Criminal Code.
Distinction from other criminal offenses
Breach of the public peace must be distinguished from related offenses, particularly
- Riot (§ 125 StGB old version – no longer in force),
- Trespass (§ 123 StGB),
- and bodily harm (§§ 223 ff. StGB).
In contrast to these, breach of the public peace targets the collective violation of public peace by crowds, not individual violations of rights or trespassing on private property.
Public peace and protected legal interests
Public peace is a supra-individual legal interest that serves to protect society from collective acts of violence or threats. Breach of the public peace primarily protects the public’s trust that such gatherings and calls for violence will not occur.
Sentencing and sanctions
In the simplest case, breach of the public peace can be punished by imprisonment of up to three years or a fine. In serious cases, the minimum penalty is six months and the maximum is ten years imprisonment. Sentencing is determined by the extent, intensity, and consequences of the collective violence as well as any potential personal culpability factors.
Procedural aspects and prosecution
Breach of the public peace is an official offense prosecuted by law enforcement authorities, especially the police and public prosecutor’s office, ex officio. As a rule, investigations are initiated immediately during such gatherings involving violence. Video recordings, witness statements, and investigations into individual participants are frequently used.
Historical development
The provision on breach of the public peace has historical roots in medieval ‘Landfrieden’, which imposed periodic bans on violence between various groups throughout the land. The modern term was first codified in the Criminal Code of the North German Confederation in 1871 and has since been amended several times to meet current requirements regarding freedom of assembly and demonstration.
Relevance for assemblies and demonstrations
Breach of the public peace plays an important role at large gatherings, such as political demonstrations or sporting events, since the risk of collective acts of violence is considered particularly high. Accordingly, the offense stands in tension with the rights to assembly and freedom of expression protected by the Basic Law. Case law therefore emphasizes careful examination to avoid criminalizing legitimate forms of protest.
References and sources
- German Criminal Code (StGB)
- Fischer, German Criminal Code and commentary
- Schönke/Schröder, Commentary on § 125 StGB
- Decision of the Federal Court of Justice (BGH) on interpretation and application of breach of the public peace
This overview provides a comprehensive explanation of the legal basis, elements of the offense, distinctions, and sentencing relating to breach of the public peace under German law. The article offers a detailed and accurate presentation of all relevant aspects for the application and interpretation of this criminal offense.
Frequently asked questions
What penalties does German criminal law provide for breach of the public peace?
German criminal law regulates sanctions for breach of the public peace in Section 125 StGB. Anyone who takes part in a crowd that, acting in concert, commits or threatens acts of violence against people or property is liable to prosecution. The penalty is imprisonment of up to three years or a fine. In particularly serious cases, such as when the perpetrator carries a weapon, Section 125a StGB provides for imprisonment of six months to ten years. Lesser penalties may be imposed at the court’s discretion in less severe cases. The extent of the violence used, the consequences of the act, and the individual involvement of the person in question are particularly relevant for sentencing. In addition, perpetrators can be prosecuted separately for other offenses committed during the breach of the public peace (e.g., bodily harm, property damage).
Does liability for breach of the public peace require concrete harm or an injured party?
No, under Section 125 StGB, it is not necessary for concrete harm to actually occur or for a person to be injured for liability to arise. It is sufficient that violent acts against people or property, or threats thereof, are made by a crowd. What matters is that the conduct of the crowd seriously disturbs public peace – meaning the general sense of security and peaceful communal living. A specific result in the form of harm is not a prerequisite for criminal liability; the offense is complete once violent action or threats are made.
Does participation in the crowd require active involvement or is mere presence sufficient?
Mere presence at a gathering is not in itself sufficient for criminal liability for breach of the public peace. What is required is active participation in acts of violence or conscious involvement in the collective actions of the crowd. Anyone who deliberately joins the crowd and supports or furthers acts of collective violence may be criminally liable. However, simply walking along or passively standing by is not enough for participation in the absence of acts of support. An individual assessment of each case is essential during the investigation.
To what extent is breach of the public peace an independent or composite offense?
Breach of the public peace is an independent offense characterized by the collective nature and risk to public peace. It is an abstract endangerment offense that focuses on the risk to public peace as a whole, regardless of individually protected legal interests. Despite potential overlaps with other criminal offenses such as bodily harm, aggravated robbery, or arson, breach of the public peace remains independently punishable. In addition, prosecution for ancillary offenses is regularly possible, insofar as the individual participants commit these either alone or collectively.
Does the motivation or purpose of the acts of violence have any bearing on criminal liability?
For criminal liability for breach of the public peace, the motivation or purpose of the crowd is generally irrelevant. Whether political, ideological, sporting, or other motives are present does not matter for criminal law purposes. The decisive factor is only the collective violent action of a crowd capable of disturbing public peace. Only in the context of sentencing may motivation be taken into account in individual cases, for example, to assess the gravity of the offender’s guilt.
How is the ‘crowd’ defined in the context of breach of the public peace?
According to case law and prevailing opinion, a crowd under Section 125 StGB is understood to be a number of people who, by their spatial proximity and collective intent, may be perceived by others – such as police or bystanders – as a threat to public peace. The minimum number is not stipulated by law, but is usually assumed to be around 10 to 15 people, provided they act collectively and with united strength. A loose assembly of people suffices only when it acts together with a readiness for violence as a group.
Can passive participants also be liable through omission?
Liability by omission is conceivable in exceptional cases regarding breach of the public peace, for example in the event of a guarantor’s duty, when a person is legally obliged to prevent acts of violence (e.g., as an organizer or steward). In principle, however, only those who actively participate in or promote acts of violence are criminally liable. A bystander with no supporting actions can only be held liable if he or she has a specific duty to act, breaches it culpably, and thereby enables or encourages violence.
What role does attempt play in breach of the public peace?
A punishable attempt is not possible in simple breach of the public peace, as the law does not criminalize attempt in such cases. Only Section 125a StGB (‘aggravated breach of the public peace’) also punishes attempt. However, this presupposes the use of a qualifying means (e.g., a weapon) or that particular circumstances are involved. In case of attempt, the offender must begin to carry out the offense, for example by preparing to join an armed crowd. Whether an attempt exists must be assessed in each individual case on the basis of concrete acts.
