High Treason Against the Constitution

Concept and Significance of High Treason Against the Constitution

The term high treason against the constitution refers, under German criminal law, to an especially serious criminal offense directed against the fundamental order and integrity of the state. The primary aim is the elimination or alteration of the constitutional order based on the Basic Law of the Federal Republic of Germany by force or threat of force. The offense is regulated in the Special Part of the Criminal Code (StGB) under Sections 81 to 83. The classification as “high treason” denotes the particular severity accorded to attacks on the existence or constitutional order of the state.

Legal Framework for High Treason Against the Constitution

Statutory Regulation in Germany

Section 81 StGB: High Treason Against the Federation

Section 81 StGB defines classic high treason against the Federation. Anyone who attempts, through force or threat of force, to alter or abolish the constitutional order of the Federation, based on the Basic Law, is liable to prosecution. The attempt alone is already punishable; the legislator imposes severe penalties for preparing and committing this offense.

Section 82 StGB: High Treason Against a Federal State

Section 82 StGB governs high treason against the constitutional order of a federal state. Analogous to Section 81 StGB, anyone who seeks to eliminate or alter the order based on the state constitution by force or threat of force is subject to punishment. The scope of protection thus extends to the constituent states of the German federal system.

Other Criminal Offenses

In addition to actual high treason, Preparation of a Treasonous Undertaking (Section 83 StGB) and the Failure to Report Planned Offenses (Section 83a StGB) are also punishable. This is designed to capture potentially dangerous actions at an early stage.

Purpose of Protection and Legal Interest

The legal interest protected by high treason against the constitution is the constitutional order and—depending on the offense—the existence of the state or federal states. Covered are attacks that threaten or seek to eliminate the political order at its core.

Objective and Subjective Elements of the Offense

Objective Prerequisites

The objective elements of high treason against the constitution require:

An act aimed at the use of force or threat of force
An attack directed against the guarantee of continuity or the principle of the free democratic basic order
A connection to the entire or essential parts of the constitutional order

Not every form of opposition constitutes the offense: High treason against the constitution only occurs when violence or the threat thereof goes beyond the mere expression of political opinion.

Subjective Prerequisites

For high treason against the constitution, intent is required: The perpetrator must consciously and deliberately aim to eliminate or fundamentally alter the constitutional order by force or threat of force.

Sanctions and Penalties

The threat of punishment depends on the gravity of the offense:

For completed high treason against the Federation (Section 81 StGB): life imprisonment or imprisonment of no less than ten years
For attempt and preparation: imprisonment from one year up to ten years (in less serious cases)
Against a federal state (Section 82 StGB): imprisonment from one year up to ten years, in particularly serious cases up to fifteen years

Additionally, further measures such as loss of civil rights or preventive detention may be ordered.

Distinction from Other Political Offenses

Comparison with Treason and Crimes Endangering the State

High treason against the constitution must be distinguished from other so-called state and constitutional offenses:

Treason (Section 94 StGB): The disclosure of state secrets to foreign powers or their agents.
Violent Acts Endangering the State (Sections 84-91 StGB): Such as the formation of terrorist organizations, which may also be directed against the state order.

The difference lies primarily in the level of wrongdoing and the specific protected legal interest.

Practice and Significance in Legal Application

Rarity and Effectiveness

High treason against the constitution is among the rarely prosecuted crimes in Germany. Due to its strict requirements and political dimension, prosecuting authorities apply particular scrutiny. Prevention and early detection of potential threats to the state order are of essential importance.

Investigation Procedure and Course of Proceedings

Investigations into high treason against the constitution are generally conducted by the Federal Public Prosecutor at the Federal Court of Justice. Prosecution is specially regulated (Section 120 GVG), ensuring effective protection of the state.

Historical Development

Origin of the Offense

The punishability of high treason has historical roots stretching back to monarchical and republican forms of government. Since the adoption of the Basic Law, criminal law has provided comprehensive protection for the constitution, particularly reflecting the lessons learned from the Nazi era and the Weimar Republic in today’s legal system.

Legal Assessment and Current Relevance

High treason against the constitution is designed as a central instrument for safeguarding the state order. It represents the criminal law protection of the free democratic basic order as well as the federal structure of Germany. In times of growing extremist movements, this offense continues to play a central role in maintaining internal security.

Frequently Asked Questions

What penalties are provided for high treason against the constitution under German law?

High treason against the constitution under Section 81 of the Criminal Code (StGB) carries extremely severe penalties. For attempting or carrying out acts aimed at violently abolishing or altering the constitutional order based on the Basic Law of the Federal Republic of Germany, the minimum penalty is ten years’ imprisonment; in particularly serious cases, life imprisonment is possible. In less serious cases, however, the court may reduce the sentence. If additional offenses such as homicide are fulfilled, further measures are imposed. Preparatory acts (e.g., forming or supporting a group with this aim) are also separately and more leniently punished under Section 83 StGB.

How is involvement of third parties in high treason against the constitution legally assessed?

The involvement of third parties in high treason against the constitution is prosecuted in accordance with the general rules for perpetration and complicity under the Criminal Code. Anyone who acts as an instigator (Section 26 StGB), accomplice (Section 27 StGB), or joint perpetrator (Section 25 StGB) can be punished as a perpetrator or participant. The punishment depends on the extent of participation and individual culpability. Of particular importance are group structures such as associations or networks with anti-constitutional aims, as support actions by their members can already fulfill the offense.

How is high treason against the constitution distinguished from other political crimes?

Legally, high treason against the constitution is mainly distinguished from offenses such as treason (Section 94 StGB), crimes endangering the state (Sections 84 ff. StGB), and resistance against law enforcement (Section 113 StGB). While high treason against the constitution targets the entire state order guaranteed by the Basic Law, treason, for example, involves the disclosure of state secrets to foreign powers. Crimes endangering the state also include certain acts against the individual functioning of constitutional organs, without aiming for a complete elimination of the state system. The precise legal assessment always depends on the incriminated plan and the objectives of the perpetrators.

What role do preparatory acts play in high treason against the constitution from a legal perspective?

Preparatory acts are prosecuted as an independent offense in connection with high treason against the constitution, especially under Section 83 StGB (“Preparation of a serious violent act endangering the state”). This includes the formation, support, or promotion of organizations that plan or prepare such an act. Criminal liability thus applies even before an actual offense is committed and serves early intervention to protect the constitutional order. Proof of the subjective element—namely the intention to commit high treason against the constitution—is required for a criminal conviction.

To what extent are attempts or preparatory acts punishable?

In addition to the completed offense, attempts are also punishable in the case of high treason against the constitution. Even the genuine conduct that indicates the intent to commit the offense satisfies the attempt, leading to corresponding prosecution. Preparatory acts such as membership in a group serving the offense or conspiracy to commit the act are also criminally relevant (Sections 30, 83 StGB). This broad extension of criminal liability underlines the special need to protect the constitutional order in German law.

What is the significance of sentencing in high treason against the constitution?

Sentencing takes into account both the enormous danger and the individual degree of guilt and responsibility. The courts carry out a differentiated assessment, weighing in particular the gravity of the offense, the offender’s role within possible groups, the extent of completed preparations, and any mitigating circumstances such as confessions, remorse, or cooperation in the investigation. Conversely, a particularly significant leadership role or the concrete endangerment of the constitutional order increases the sentence.

What special procedural features exist in the prosecution of high treason against the constitution?

Proceedings for high treason against the constitution are subject to heightened legal requirements. The Federal Public Prosecutor at the Federal Court of Justice is regularly responsible for prosecution. Investigations are often conducted under strict secrecy and may involve extensive measures such as wiretapping, the use of undercover investigators, or searches. The accused have special defense rights; however, due to the severity of suspicion, pre-trial detention is often the norm. The proceedings may, for reasons of confidentiality, be conducted partly excluding the public.