Definition and Delimitation of High Treason
High treason is a criminal offense directed against the constitutional order or the personal integrity of heads of state and state institutions. The term has evolved historically and is considered one of the most serious crimes against the existence or security of the state in most countries. The legal structure and the specific elements of the offense differ according to the legal system, but at its core is always the threat to fundamental state structures.
Historical Background
High treason can be traced back to the Middle Ages in most European legal traditions. Originally referred to as lèse-majesté or treason, high treason was traditionally understood as an attack on the person of the monarch or on the sovereignty of a state. Over time, the meaning shifted towards an explicit threat to the constitutional order and its organs.
Legal Structure of High Treason in Germany
Overview
In German criminal law, high treason constitutes a distinct criminal offense, which is regulated in the Criminal Code (StGB) in Sections 81 et seq. It differentiates between two main forms: High treason against the Federation (Section 81 StGB) and High treason against a state (Section 82 StGB).
High Treason against the Federation (Section 81 StGB)
Elements of the Offense
High treason against the Federation requires that violence or the threat of violence is used to abolish or change the constitutional order of the Federation based on the Basic Law. The attempt alone is punishable.
Penalty
Sanctions range from a minimum prison sentence of ten years up to life imprisonment. According to Section 81(2) StGB, the attempt is already punishable by imprisonment of not less than ten years.
Protected Legal Interest
The legal good protected is the preservation of the constitutional order of the Federal Republic of Germany. In particular, the existence, functionality, and integrity of state authority are protected.
High Treason against a State (Section 82 StGB)
According to Section 82 StGB, even the attempt to abolish the constitutional order of a federal state in a similar manner is punished severely, though with a slightly lower penalty than high treason against the Federation.
Distinction from Treason and Other Offenses
High treason must be clearly distinguished from other offenses endangering the state, such as treason (Section 94 StGB, in particular espionage activities) and coup d’etat While high treason centers on an active threat to the constitution, these other offenses relate to the disclosure of state secrets or the seizure of government power.
Procedural Particularities
Due to the seriousness of the offense and the high level of public interest associated with it, special provisions are provided for criminal prosecution and procedures. Jurisdiction usually lies with the Federal Court of Justice as the court of first instance, and investigative authorities enjoy special powers in cases of high treason, such as with regard to searches and surveillance.
High Treason in International Comparison
European Union
There are no uniform regulations within the EU, but nearly all member states include provisions comparable to the German offense of high treason. The aim is always the protection of the constitution or the fundamental state order.
Switzerland and Austria
The Swiss and Austrian criminal codes also recognize the concept of high treason. Here, too, high treason denotes an attack on the existence or order of the state and is punishable by severe terms of imprisonment.
Other Countries
In other countries, such as in the Anglo-American legal sphere, similar acts are often referred to as “treason” or “sedition” and constitute serious criminal offenses.
Manners of Commission and Distinction from Less Serious Offenses
Use of Force and Threats
The core element of the offense is always the use or threat of violence. Mere political expression, propaganda, or political agitation does not fulfill the elements of high treason. There must be a concrete danger to the state order.
Organizational Offenses
Criminal law encompasses not only direct perpetrators but also participants, supporters, and members of criminal organizations working towards high treason. Independent criminal provisions exist for these acts, which penalize the formation or support of such organizations.
Attempt and Preparation
Even the attempt phase and certain preparatory acts are punishable under the law. This is intended to ensure that activities endangering the state can be suppressed at an early stage.
Procedural and Sentencing Issues
Special Protective Measures
Due to the paramount importance of the protected legal interest, proceedings are subject to special formal requirements. Restrictions on press and public relations work are often possible, for example when hearings take place without public access to safeguard state security.
Sentencing and Mitigation
The penalty can be reduced in cases of lesser gravity; this applies, for example, if the act remains at the attempt stage or mitigating circumstances exist, such as voluntary withdrawal from the plan. Individual perpetrators who contribute to clarification can also expect a reduction in sentence.
High Treason and Fundamental Rights
Although the offense of high treason is very broad, its application must always safeguard fundamental rights and principles of the rule of law. This is particularly relevant when distinguishing from the freedom of expression and assembly protected by the Basic Law.
High Treason in Public Perception
Historical and political developments such as revolutions, coups, or attempted putsches shape the public image of high treason. Frequently, acts of high treason are also interpreted as political tools, making a rule-of-law and fact-based review even more important.
Summary
High treason is one of the central and most serious offenses against the existence and order of states. Its legal definition is clearly delineated and is based on protecting the constitutional order from violent attacks and threats. Its statutory classification, procedural management, and sanctions demonstrate the outstanding significance of this offense within criminal law in upholding the integrity and stability of the state order.
Frequently Asked Questions
Who is responsible for prosecuting high treason?
The prosecution of high treason in Germany is primarily the responsibility of the federal law enforcement authorities, in particular the Federal Public Prosecutor at the Federal Court of Justice. This competence arises from Section 120 of the Courts Constitution Act (GVG), which provides that certain offenses against state security, including high treason according to Sections 81 et seq. of the Criminal Code (StGB), are prosecuted by federal authorities. Investigations are usually conducted by the Federal Criminal Police Office, while the Federal Public Prosecutor brings charges and directs the criminal proceedings. Jurisdiction lies with the Higher Regional Courts as courts of first instance. This underscores the considerable importance of the offense for the state order and the necessity of special expertise and security in dealing with such proceedings.
How is the attempt of high treason evaluated under criminal law?
The attempt of high treason is generally punishable under German criminal law pursuant to Section 83 StGB. This means that preparatory acts clearly aimed at committing high treason are penalized even if the act is not completed. The legislator intends to prevent the security or constitutional order of the Federal Republic of Germany from being endangered already by attempted acts. The specific acts to be assessed are strictly examined, and the threshold from non-punishable preparation to a punishable attempt is determined based on Section 22 StGB (definition of attempt) and the respective objective and subjective elements of the offense.
What legal consequences threaten upon conviction for high treason?
Upon conviction for high treason, severe penalties under Section 81 StGB are imposed. The law regularly provides for life imprisonment or imprisonment of at least ten years, while less serious cases can be punished by imprisonment from one year to ten years. In addition to the main penalty, further consequences such as loss of civil rights, occupational bans under Section 70 StGB, or forfeiture of means and assets can be imposed. The severity of the penalty depends in particular on the extent of the act, the degree of endangerment, and the level of participation.
Are there special procedural rules in criminal proceedings for high treason offenses?
Criminal proceedings for high treason offenses are subject to special rules in several respects. Investigation and trial are characterized by increased confidentiality and security measures to protect state secrets and the functionality of the Federal Republic. According to Sections 96 et seq. of the Code of Criminal Procedure (StPO), certain evidence may be excluded or restricted for reasons of confidentiality. The rights of the defense may be limited in sensitive security matters, for example with regard to access to certain files. The public may be excluded from the proceedings in whole or in part if there is a risk to state security (Section 172 GVG).
What are the differences between high treason and treason under criminal law?
Although high treason and treason are related, these offenses differ fundamentally in their objectives and the legal interests protected. High treason under Sections 81 and 82 StGB is directed against the existence and constitutional order of the Federation or a state and concerns actions aimed at overthrow or secession. Treason under Section 94 StGB, by contrast, refers to the disclosure of state secrets to foreign powers and is primarily an espionage offense. While high treason aims at the violent alteration of the internal political order, treason concerns external threats through the disclosure of sensitive information to third parties.
What role does the unconstitutionality of a party or organization play in connection with high treason?
The unconstitutionality of a party or organization can serve as grounds for criminal investigation in the context of high treason, particularly if concrete high treasonous acts arise from the activities of the group or are being prepared. However, the mere determination of unconstitutionality by the Federal Constitutional Court (under Article 21(2) and (4) of the Basic Law) does not automatically make an act punishable for high treason. There must always be an actual commission or at least an attempt of an act within the meaning of Sections 81 et seq. StGB, with additional examination of the extent to which organizational activity aims to prepare a violent overthrow.
What legal remedy is available to defendants in the event of a conviction?
Appeals against first-instance judgments of the Higher Regional Courts in cases of high treason are permissible to the Federal Court of Justice (BGH) in accordance with Sections 135, 139 GVG. The BGH reviews the judgment solely for legal errors, not for the factual findings, unless a procedural error or violation of substantive law is established. In exceptional cases, a retrial under Sections 359 et seq. StPO may be requested, especially if new facts or evidence are presented that are capable of overturning the judgment in favor of the convicted person. A constitutional complaint under Article 93(1) No. 4a Basic Law is also available if fundamental rights violations are asserted through the judgment.
