Concept and Fundamentals of State Criminal Law
Das State Criminal Law refers to those criminal law provisions that can be independently enacted at the level of the German federal states (Länder). In contrast to Federal Criminal Law – primarily codified in the Criminal Code (StGB) and supplementary federal criminal laws – state criminal law consists of laws enacted by individual federal states that regulate punishable acts independently. However, the authority to create state criminal law in Germany is subject to significant constitutional limitations.
Legislative Competence in Criminal Law
According to Articles 70 et seq. of the Basic Law (GG), legislative competence fundamentally resides with the federal government, with criminal law assigned to concurrent legislation under Article 74 para. 1 no. 1 GG. This means that the German Länder may only enact their own laws in the area of criminal law to the extent that the federal government has not exercised its regulatory authority.
In practice, the scope for state criminal law is small, as the federal government has almost completely regulated criminal matters in the Criminal Code and in specific criminal laws (e.g., Narcotics Act, Juvenile Courts Act). The Länder may only enact their own criminal offences for certain, clearly defined matters, provided that there remains room for legislative action or where, in the context of administrative assistance, they are expressly permitted to impose criminal penalties for regulatory offences or supplementary criminal law.
Content and Subject Matter of State Criminal Law
Typical Applications
The field of application for state criminal law is essentially limited to so-called supplementary criminal law within domains of state law. Examples include:
- Violations of the State Press Act
- Violations of the State Archives Act
- Regulatory offences in the area of hazard prevention under state police laws
- Provisions for the protection of monuments under the Monument Protection Act of a state
Supplementary Criminal Law and Regulatory Offence Law
State criminal law is often not designed as genuine criminal offences, but rather as regulatory offence law. Regulatory offences are not criminal offences in the sense of the Criminal Code but are administrative violations that may be punished by a monetary fine. Here, the Länder have a relatively broad scope for design.
Distinction from Federal Criminal Law and Federal Regulatory Offence Law
Federal Criminal Law
The largest part of German criminal law is federal law. This includes the Criminal Code as well as numerous federal statutes with criminal law content. Federal criminal law takes precedence over state criminal law. Any state criminal provision that is contrary to federal criminal law or enacted in an area already governed by federal law is void (Art. 31 GG: “Federal law overrides state law”).
Federal Regulatory Offence Law
Regulatory offences law is also predominantly governed by federal law, namely the Act on Regulatory Offences (OWiG), and frequently references federal legal provisions. Nevertheless, the Länder may, within their jurisdiction, establish their own regulatory offences, for example in police law, road law, or state nature conservation law.
Historical Development of State Criminal Law
Before the Basic Law
Prior to the entry into force of the Basic Law, there was an extremely heterogeneous landscape of criminal law in Germany. In the 19th century and well into the 20th century, numerous criminal provisions were regulated specifically by individual states. With the introduction of uniform imperial criminal laws from 1871 (Imperial Criminal Code), criminal law was gradually centralized.
After the Basic Law
Since the Basic Law came into force in 1949, exclusive or at least predominant legislative competence for criminal law has shifted to the federation. The federal states have since only intervened in niche areas (particularly in administrative law) regarding criminal sanctions.
Practical Significance of State Criminal Law
With the continued displacement by federal criminal law and the focus on national uniformity, state criminal law has become of rather subordinate importance in everyday legal practice. Nevertheless, state-specific regulations with sanctions remain relevant in certain fields, such as violations of regional regulations in assembly law, police law, monument protection law, school laws, or in the area of municipal law.
Constitutional Review and Legal Protection
State criminal law provisions are subject to review by the constitutional courts of the states as well as, where applicable, by the Federal Constitutional Court, in particular when there are allegations of overstepping authority or conflicts with superior federal law. Affected parties may challenge corresponding criminal prosecutions in court and seek constitutional clarification.
Summary
State criminal law encompasses those criminal provisions enacted by the German federal states within their own legislative competence. As a result of comprehensive federal regulations, the scope of state criminal law is now significantly limited and is mainly found in supplementary criminal law and in the area of regulatory offences. Constitutionally, the competence of the states to enact criminal law is significantly limited to ensure the uniformity of German criminal law.
Further Literature and Case Law
- Dreher/Tröndle: Criminal Code and Supplementary Laws. Commentary
- Maurach/Schroeder/Maiwald: Criminal Law – General Part
- Decisions of the Federal Constitutional Court (especially on the allocation of competences between federation and states)
This overview of state criminal law provides a well-founded summary of the concept, legal sources, scope, as well as the historical and current significance within the German legal system.
Frequently Asked Questions
What role does state criminal law play in Germany’s federal legal system?
State criminal law comprises the criminal law provisions enacted by individual federal states in Germany. In the federal system of the Federal Republic, criminal law is in principle a federal matter, regulated especially in the Criminal Code (StGB) and supplementary federal laws. Legislative competence for criminal law lies with the federation under Article 74 para. 1 no. 1 of the Basic Law (GG). However, state criminal law continues to exist, particularly in the form of regulatory offence statutes and specific state-level provisions such as police laws, shop closing laws, or environmental regulations. These usually do not constitute offences in the sense of the StGB, but are independent criminal or fine-related offences formulated and implemented by the states, provided the federal government has not conclusively regulated the relevant area. In the area of supplementary criminal law, state law can also fill subsidiary gaps or supplement federal regulations. Nevertheless, state criminal law remains of relatively minor practical significance compared to federal criminal law.
Which offences are typically covered by state criminal law?
State criminal law generally deals with minor violations of specific regional provisions. These include mainly regulatory offences, such as infringements of state-specific regulations on public holiday laws, shop closing hours, noise abatement, municipal statutes, or state nature conservation law. In some states, there are also special state-level criminal offences, for example in public law, such as violations of the Bavarian Sunday and Holiday Law. The penalties foreseen in state law are typically lower and chiefly serve to uphold public order within the respective state. Serious crime such as assault or theft, on the other hand, are exclusively dealt with by federal criminal law.
How does state criminal law differ from federal criminal law?
The central distinguishing feature lies in legislative competence. While federal laws, notably the StGB, apply uniformly across Germany and provide comprehensive rules for serious crimes, state-level criminal provisions are tailored to specific regional legal interests and regulatory priorities. They also differ in scope: state criminal law applies only within the respective state, whereas federal criminal law is applicable throughout Germany. Furthermore, there are differences in sentencing, the responsible authorities, and procedural law. As a rule, state criminal law deals with minor, locally relevant matters, whereas federal law also covers the gravest forms of crime.
Which authorities are responsible for the enforcement of state criminal law?
The enforcement of state criminal law falls to the respective competent state authorities. These may be police authorities, regulatory offices, or specialized state agencies. In the case of regulatory offences, local regulatory offices or the respective specialist authorities, such as nature or environmental protection agencies, are often responsible. The prosecution and sanctioning of offences under state law are determined by state regulations on jurisdiction. Courts of general jurisdiction remain responsible for adjudication, while prosecution is handled by the state prosecutors. The interpretation, application, and ultimately the enforcement of state legal provisions thus clearly lie within the sphere of the individual federal states.
In which areas are state criminal law provisions most commonly found?
State criminal law provisions are most frequently found in areas where the federal government has not made a final regulation or has explicitly conferred legislative competence to the states. Typical fields of application include public regulatory law (e.g., police laws), environmental law (e.g., tree and nature conservation), freedom of assembly law, public holiday law, and parts of municipal administrative law. State-level criminal or fine-related provisions may also exist in the area of education, building regulations, and for specific locally relevant behavioural norms. These primarily serve to enforce state-specific interests and values.
Are there any particularities in criminal procedure for state-level criminal offences?
Yes, criminal procedures for state-level criminal offences have some particular features, especially with regard to the competence and procedures of the prosecuting authorities. While at the federal level central authorities (such as the Federal Prosecutor for certain offences) may be involved, violations of state laws are usually handled by the local police, the respective regulatory agency, or a specialized state agency. However, the jurisdiction for court proceedings remains, as in federal criminal law, with the ordinary courts. For regulatory offences, simplified procedures often apply, and time limits and legal remedies are frequently governed by state law.
How does state criminal law affect the relationship between federal and state law?
The coexistence of federal and state law can lead to a dual structure in certain areas, where the application of federal law must first be examined and, subordinately, state law applies. If a matter is already comprehensively regulated by federal criminal law, the principle of precedence applies: federal law overrides conflicting state law (Article 31 GG – federal law supersedes state law). Accordingly, state lawmakers may not create criminal norms contrary to federal law; they may only fill existing regulatory gaps with their own provisions or regulate specific real-world scenarios not dealt with by federal law. This interplay increases the complexity of legal application but is generally manageable due to the clear division of powers in the federal system.
