Definition and Legal Classification of Crimes Endangering the State
The Term Crimes endangering the state refers in German law to systematic actions directed against the existence, constitutional order, or functionality of a state. These acts, in particular, significantly impair the internal or external security of the Federal Republic of Germany. Crimes endangering the state are classified as serious offenses and are specified in various laws, with the German Criminal Code (StGB) containing the central regulations.
Historical Development of the Offense
The legal treatment of actions endangering the state has been adapted several times throughout constitutional history. Regulations to protect the state against attacks already existed in the Imperial Criminal Code of 1871. After 1945, legislation especially developed further based on experiences with totalitarian regimes as well as threats from within and outside. The current system was shaped primarily by the Basic Law and ongoing judicial decisions.
Systematics of Crimes Endangering the State in German Law
Protected Legal Interests of Crimes Endangering the State
The provisions regarding crimes endangering the state serve to protect key legal interests:
- The existence and security of the state,
- The constitutional order,
- The ability of state organs to perform their functions,
- Foreign relations and defense capability.
Key Provisions on Crimes Endangering the State in the Criminal Code
Section 81 StGB: High Treason against the Federation
Der High treason under Section 81 StGB is the most serious offense endangering the state and covers acts intended to impair or destroy the existence of the Federal Republic of Germany or to overthrow the constitutional order.
Section 82 StGB: High Treason against a State
The offense of high treason here is specifically applied to the member states, i.e., the federal states.
Section 83 StGB: Preparation of a High Treasonous Activity
This section already penalizes preparatory actions in order to prevent future acts of high treason.
Section 84 StGB et seq.: Other Provisions Endangering the State
These include, among others, endangering the democratic rule of law through attacks on constitutional bodies, involvement in anti-constitutional organizations, or public advocacy for certain anti-state objectives.
Offenses against State Security in the Broad Sense (§ 89a StGB et seq.)
This includes preparing a serious act of violence endangering the state and offenses related to terrorism in a broader sense.
Other Relevant Criminal and Ancillary Laws
Criminal Procedure Regulations
Offenses endangering the state are subject to special regulations in criminal procedure. These include, for example, enhanced surveillance and investigative powers under the German Code of Criminal Procedure (StPO), particularly in telecommunications monitoring, use of undercover investigators, and crown witness rules.
Public Security Law
At the police law level, there are regulations for public security in cases of suspected activities endangering the state, for example under the Federal Office for the Protection of the Constitution Act (BVerfSchG) or the Federal Intelligence Service Act (BNDG).
Constitutional Reference
The criminal law treatment of crimes endangering the state finds its constitutional basis in the protective mandate of the Basic Law, especially in Article 20 (guarantee of existence and permanence) as well as regulations for the protection of the democratic and social federal state.
Distinctions and References to Other Legal Areas
Difference to Treason and Espionage Offenses
While crimes endangering the state, such as in the context of high treason, aim at the destruction of the state order, in the case of treason (Sections 94 et seq. StGB) the focus is on causing harm by disclosing state secrets to foreign powers. The distinction is made based on the intent and degree of endangerment.
Relation to Terrorism and Extremism
Many perpetrators of acts endangering the state are classified as political extremists or terrorists. In particular, the sections on violent acts endangering the state overlap with regulations in international anti-terrorism law.
Procedure and Sanctions
Investigative and Criminal Proceedings
Acts suspected of endangering the state are usually prosecuted in Germany by the Federal Prosecutor General at the Federal Court of Justice, as these are significant offenses against the state. The investigative authorities use special protective measures.
Range of Sentences and Additional Legal Consequences
The statutory penalties range from several years’ imprisonment to life imprisonment. In particularly serious cases, preventive detention can also be ordered. In addition to criminal penalties, professional or civil service measures may also be imposed.
Crimes Endangering the State in an International Context
International agreements and cooperation, for example via Europol and Interpol, facilitate cross-border collaboration in the prosecution and prevention of crimes endangering the state. However, the definition and punishability vary considerably depending on the legal system.
Significance and Current Developments
With the challenges posed by international terrorism, hybrid threats, and disinformation campaigns, protection against activities endangering the state is becoming increasingly important. Case law and legislation regularly respond to new developments, such as in the context of digital attacks against state institutions.
Summary: Crimes endangering the state represent an extensive complex of offenses in German law aimed at protecting the state and the constitutional order. They encompass various types of offenses, whose legal treatment is governed by a range of special statutes and constitutional provisions. The objective remains the effective protection of the population and democratic structures from existential attacks and undue influence.
Frequently Asked Questions
Which offenses are covered by the term crimes endangering the state under German law?
The term crimes endangering the state under German law covers a wide range of criminal offenses that are regulated in the special part of the German Criminal Code (StGB), particularly in Sections 81 et seq. StGB under the section “Crimes against the existence and security of the Federation and the States.” These include, among others, high treason against the Federation (Section 81 StGB) and against a state (Section 82 StGB), endangering the democratic rule of law (Section 92 StGB), preparation of a serious act of violence endangering the state (Section 89a StGB), and treason (Section 94 StGB). These offenses are directed against central state interests, such as the existence and order of the Federation and the states, the democratic functioning of government structures, and the safeguarding of state secrets. Supporting or forming terrorist organizations (Section 129a StGB) can also be considered an act endangering the state in the broad sense. In addition, there are special provisions such as the criminalization of sabotage (Section 87 StGB), abuse of official position for purposes endangering the state (Section 353b StGB), or endangering Germany’s security interests by transmitting information. The range of penalized acts extends from violent coup attempts to espionage and terrorist attacks and organizations.
How do crimes endangering the state differ from other political offenses?
Crimes endangering the state differ from other political offenses in their object and intent. While, for example, political offenses involving expressions of opinion such as public incitement to commit a crime (Section 111 StGB) or incitement to hatred (Section 130 StGB) primarily affect societal values or groups of persons, crimes endangering the state are directed directly against the existence, security, or constitutional order of the state itself. They are characterized by a particularly high degree of infringement of legal interests, as they directly threaten the functioning and integrity of the state, government, and constitution. Furthermore, the required subjective element is usually more far-reaching, as, for example, in the case of high treason, a specific intent to impair or eliminate state structures is required. The threshold for state-endangering offenses is therefore correspondingly high, coupled with similarly severe penalties.
What are the legal consequences for perpetrators of crimes endangering the state?
The legal consequences for acts endangering the state are subject to significant severity and, depending on the offense, can include life imprisonment, particularly in cases of completed or attempted high treason (Section 81 (1) StGB) or treason (Section 94 (1) StGB). Substantial prison sentences (at least five years or more) are also possible, even for preparatory acts (Section 89a StGB). In addition to the main penalty, the court can impose additional measures such as preventive detention (Section 66 StGB), as well as ancillary consequences like a ban on practicing a profession or a prohibition on conducting legal transactions. In the case of foreigners, deportation pursuant to Section 53 of the Residence Act may also be ordered. The prosecution of these offenses is also considered of heightened public interest, which is why the Federal Prosecutor’s Office and the Federal Criminal Police Office are regularly involved in investigation and prosecution.
How are criminal proceedings conducted in cases of crimes endangering the state, and who is responsible?
For criminal prosecution of crimes endangering the state, the Federal Prosecutor General at the Federal Court of Justice (also called the Federal Prosecutor’s Office) is responsible in accordance with Section 120 of the Courts Constitution Act (GVG). Investigative measures are therefore centrally conducted by federal authorities such as the Federal Criminal Police Office (BKA). Criminal proceedings for such offenses have special features: Investigative measures such as telecommunications surveillance, house searches, or monitoring of international financial transactions are permitted under Sections 100a et seq., 100g StPO with lower intervention thresholds or broader powers. Due to the heightened protection interests of the state, witnesses in state-endangering proceedings may also be offered special protection, and it is possible for the public to be excluded from hearings, especially where confidentiality interests (Section 172 GVG) are at stake.
Are there special statutes of limitations for crimes endangering the state?
For crimes endangering the state, statutes of limitations are often extended or even abolished. Particularly serious offenses such as high treason, treason, or preparation of a serious act of violence endangering the state are subject to a limitation period of 20 years, in the case of completed high treason even 30 years according to Sections 78 (3) Nos. 1 and 2 StGB. In exceptional cases, the limitation period may be completely excluded, for example in the case of murder in connection with acts endangering the state (Section 78 (2) StGB). Suspension or interruption of the limitation period is governed by the general provisions of the StGB.
Can preparatory acts in the area of crimes endangering the state already be punishable?
Unlike many ordinary offenses, German law already provides for the criminal liability of preparatory acts in the area of crimes endangering the state. For example, the preparation of high treason (Section 83 StGB), conspiracy to commit treason (Section 96 StGB), and the formation of terrorist organizations (Sections 129, 129a StGB) are already subject to criminal sanctions during the preparatory phase. Preparation of a serious act of violence endangering the state (Section 89a StGB) is also punishable below the threshold of attempt. This extension of legal protection aims to identify and prevent even early stages of acts endangering the state.
What does the law understand by the offense of “treason” and how does it differ from high treason?
The offense of treason according to Section 94 StGB consists in the disclosure of state secrets to a foreign power, thereby endangering the external security of the Federal Republic of Germany or one of its states. In contrast to high treason, which targets the existence or constitutional order of the Federal Republic or a state through use or threat of force, treason focuses on the betrayal of information that could endanger Germany’s external security. Unauthorized acquisition, disclosure, publication, or misuse of security-relevant documents and information can also be prosecuted as treason. Treason is regularly subject to severe penalties of up to life imprisonment, especially in the case of aggravated treason (Section 94 (2) StGB). The group of perpetrators includes not only officials, but any person with access to information requiring confidentiality.
