Definition and Legal Classification of the Approval of Criminal Offenses
Die Approval of Criminal Offenses refers in German criminal law to conduct in which a criminal offense that has already been committed is publicly approved in such a manner that public peace could be disturbed as a result. The provision primarily serves to protect public peace and supplements the system of criminal sanctions by addressing subsequent approval of certain criminal offenses. The provision does not criminalize general approval of any criminal act, but is subject to strict statutory requirements.
Statutory Basis
Section 140 of the German Criminal Code (StGB)
The approval of criminal offenses is regulated in Germany in Section 140 StGB by law. The wording of the statute is as follows:
“Anyone who, after the commission of a criminal offense specified in Section 138 (1), publicly, in a meeting, or by disseminating content, approves of the act, shall be punished with imprisonment for up to three years or with a fine, if the act is likely to disturb public peace.”
Protected Legal Interests
The central legal interest protected by the provision is public peace. In addition to the interest in prosecuting criminal offenses, the provision also serves to protect the public’s trust in the rejection of particularly dangerous or reprehensible crimes.
Elements of the Offense
Object of the Offense
The provision refers exclusively to the offenses named in Section 138 (1) StGB (so-called catalog offenses). These include, among others:
- Preparation of a war of aggression (Section 80 StGB)
- High treason, treason, and endangering the democratic order (Sections 81 et seq. StGB)
- Murder, manslaughter, genocide, crimes against humanity, and grievous bodily harm (Sections 211, 212, 220a, 226 StGB)
- Arson with fatal consequences (Section 306b StGB)
- Robbery, extortion under specific conditions (Sections 249, 250, 255 StGB)
Other criminal offenses are expressly not covered by the provision.
Actus Reus
Approval
The term Approval means the subsequent explicit or implicit approval of the wrongful act committed. The approval must relate to a specific offense that has already been completed. General statements lacking reference to a specific offense and approval character do not fulfill the offense. Commendation merely for the skillful commission of an act, without assessing its wrongfulness, is not covered.
Publicity
The act must be public, in a gathering or by disseminating content :
- Publicity is present when the statement is directed to an indefinite number of persons (persons not connected by personal relationships).
- Meetings are gatherings of a certain number of people with the intention of forming a common will.
- Das disseminating content covers the distribution of written, visual, or other representations in a manner accessible to a larger group of people.
Suitability for Disturbing Public Peace
The approval must be suitable to disturb public peace. This is the case if the statement leads to undermining the general trust in legal certainty and the stability of the legal order. Objective suitability to cause a disturbance is sufficient. An actual disturbance of the peace is not required.
Subjective Elements of the Offense
Intent
is required Intent for all objective elements of the offense. This means the perpetrator must know that the statement concerns a criminal offense as defined by Section 138 (1) StGB, that the approval is expressed publicly, and that it is suitable for disturbing peace.
Distinction from Similar Criminal Offenses
Public Incitement to Commit Offenses (Section 111 StGB)
Unlike the approval of criminal offenses, public incitement to commit offenses (Section 111 StGB) aims to persuade others to imitate or commit the offense. By contrast, approval only involves subsequent consent without encouraging repetition.
Insult, Defamation and Offenses Against Honor (Sections 185 et seq. StGB)
The approval of criminal offenses is also to be distinguished from offenses against honor , as it does not involve the disparagement of another person, but rather the approval of an act.
Incitement to Hatred (Section 130 StGB)
Die Incitement to hatred only overlaps with approval of criminal offenses if the approval incites hatred against parts of the population or calls for violence.
Sentencing and Legal Consequences
Threat of Punishment
The legislature provides for a penalty of imprisonment of up to three years or a fine for approval of criminal offenses. There are no special sentencing rules.
Attempt and Participation
As this is a pure conduct offense , an attempt at this offense is not possible. Participation by instigating or aiding is generally conceivable, provided the general requirements are met.
Personal Exemption from Liability
Persons who themselves were harmed by the offense which is being approved are, according to prevailing opinion, not liable if their statement is an expression of their affectedness or coping process.
Practical Relevance and Case Examples
The provision is particularly relevant in connection with political offenses, in particular when individuals or groups publicly justify or approve attacks, murders, terrorist acts, or similarly serious catalog offenses. In criminal practice, the dividing line between permissible expression of opinion and punishable approval is judged on a case-by-case basis taking into account the circumstances.
Example: If a person publishes contributions after a terrorist attack in which they explicitly praise the act and describe it as a model, this may constitute punishable approval.
Scope of Protection and Constitutional References
The application of Section 140 StGB stands between law enforcement and fundamental rights, especially with regard to freedom of expression pursuant to Article 5 of the German Basic Law (GG). For this reason, the courts interpret the provision narrowly to avoid disproportionate restrictions of fundamental rights.
International References and Comparison
Comparable regulations are found in other European legal systems with the aim of counteracting subsequent approval of certain serious offenses. On the international level, such provisions are regularly discussed in view of safeguarding freedom of expression and combating hate crime.
Summary
Die Approval of Criminal Offenses is a criminal offense in Germany designed to ensure public interest in distancing from particularly serious criminal acts and to protect public peace. The provision is bound to strict statutory requirements, applies only to specific offenses, and stands at the crossroads of effective law enforcement and constitutionally protected expression. Interpretation and application are carried out with strict consideration of the circumstances of each individual case and the protected fundamental rights.
Frequently Asked Questions
When does approval of criminal offenses exist in the legal sense?
Approval of criminal offenses in the legal sense exists in particular when an offender publicly, in an assembly, or by disseminating writings expresses approving statements concerning a specific, already committed unlawful act, in such a way that it is suitable to disturb public peace. This is regulated in Section 140 of the German Criminal Code (StGB) and requires that the offense was actually committed and is subject to punishment under German law. The approval may relate both to the act itself and to the person of the perpetrator. The communication of approval must occur such that third parties can perceive it—a purely private consent is insufficient according to the case law. This becomes particularly relevant, for example, in connection with public justification of extremist or terrorist actions. The protection of public peace is always decisive, which is why concrete suitability for disturbance of peace is required.
Which criminal offenses can be approved under Section 140 StGB?
The scope of Section 140 StGB is conclusively limited to certain offenses. These include, in particular, serious crimes such as murder, manslaughter, robbery, aggravated arson, explosives offenses, hostage-taking, kidnapping for extortion, attacks on air or ship traffic, genocide, and certain offenses endangering the state. The exact enumeration can be found in the law itself. Minor offenses are not covered by this norm. Only unlawful and culpable acts are included, whose assessment as particularly reprehensible justifies increased protection of public peace.
What actions fall under the term ‘approval’?
According to prevailing opinion, the term “approval” covers both express and implied (i.e., conclusive) consent to the specified act. Examples include public statements such as: “What the perpetrator did was right” or “I support the act.” Expressions of applause in relation to the act or corresponding gestures may also suffice, provided they clearly signal approval. The context and the objective interpretation of the statement from the perspective of an impartial observer are always decisive.
Does the timing of approval matter in relation to the offense?
Yes, the timing is decisive. The approval must relate to a crime that has already been committed and is legally relevant. Approval of acts not yet completed or merely planned are not covered by Section 140 StGB—in such cases, other offenses such as public incitement to commit offenses may apply. Approval may also be given a long time after the act, provided the act and its details are still perceived as ‘current’ and the statement continues to be suitable for disturbing public peace.
Is actual damage required for criminal liability?
No, for liability under Section 140 StGB, actual damage—such as an actual disturbance of public peace—is not required. According to established case law, it is sufficient that the statement of approval is suitable to disturb public peace. This means there must be a serious danger that the public’s sense of justice will be seriously disturbed or that the act could be imitated. The circumstances of the individual case and how the statement can be received in a social context are decisive.
How does approval of criminal offenses relate to freedom of expression?
Freedom of expression under Article 5 of the Basic Law generally applies broadly, but not without restrictions. Public approval of criminal offenses under Section 140 StGB constitutes a special statutory limit. This means that approval of unlawful acts affects the scope of freedom of expression but is limited by the legal interest in public peace protected by Section 140 StGB. In individual cases, a balance is struck between the basic right to free expression and the public interest in protection against violations of legal rights and the maintenance of public peace.
How is approval of criminal offenses prosecuted under criminal law?
Approval of criminal offenses is prosecuted as an ex officio offense, meaning that law enforcement authorities must investigate ex officio when there is sufficient initial suspicion. There is no requirement for a criminal complaint by potential victims. The offense is punishable by imprisonment of up to three years or a fine. Sentencing depends, among other things, on the severity of the approved offense, the extent of the statement, and the potential degree of disturbance to public peace.
