Term and Definition of Treason
Treason is an offense endangering the state, enshrined in criminal law, and constitutes one of the most serious forms of betrayal of state interests. The term encompasses actions by which information, secrets, or documents that are capable of endangering the external or internal security of a state are passed on or made accessible to a foreign power or its agents. Such acts generally aim to threaten or harm the Federal Republic of Germany or its constitutional order.
Under German law, treason is specifically regulated in Sections 94 et seq. of the German Criminal Code (StGB). The provisions define various factual variants as well as sentencing ranges and differentiate between simple treason, particularly serious treason, and similar offenses.
Historical Development
The criminal provisions concerning treason have a long historical development. Even earlier versions of German criminal law, such as the Imperial Criminal Code of the 19th century, contained provisions against the betrayal of state secrets. These regulations have been repeatedly adapted to take into account changing security policy and technological conditions. In the Federal Republic of Germany, the provisions have been continuously developed in recent decades, especially concerning the protection of state secrets and adaptation to digital communication forms.
Statutory Regulations under the Criminal Code
Basic Offense (§ 94 StGB)
Section 94 of the Criminal Code punishes classic treason. Accordingly, anyone who communicates or makes a state secret accessible to a foreign power or one of its agents, and thereby causes the risk of serious harm to the Federal Republic of Germany, is liable to prosecution. The penalty ranges from a prison sentence of not less than one year up to life imprisonment in particularly serious cases.
Protected Objects
Treason primarily protects the existence, external security, and constitutional order of the Federal Republic of Germany. The secrets protected include information of a military, diplomatic, technical, or political nature that are subject to confidentiality and are of decisive importance for the security of the state.
Acts Constituting the Offense
Acts constituting the offense include obtaining, passing on, making accessible, or distributing state secrets to unauthorized third parties, particularly to foreign intelligence services or enemy powers.
Aggravated Circumstances (§ 94 Paras. 2 and 3 StGB)
The law provides for aggravating circumstances with higher penalties if the act creates particularly serious dangers, such as the outbreak of war or significant harm to state institutions.
Particularly Serious Case
A particularly serious case occurs if the offense invokes the threat of war or significantly endangers the constitutional order or the existence of the Federal Republic of Germany. In such cases, life imprisonment may be imposed.
Extended Offense Elements and Preparatory Acts
Disclosure of State Secrets (§ 95 StGB)
Not only the actual passing on, but also the preparation of betrayal, such as making state secrets accessible or securing them with the intention of disclosing them at a later time, is punishable.
Disclosure to Private Individuals (§ 97 StGB)
Not only the betrayal of state secrets to foreign powers but also to unauthorized private individuals without official access is punishable.
Distinction from Other Offenses against State Security
There is a conceptual and legal proximity between treason and other criminal acts against the state, such as betrayal of official secrets (§ 353b StGB), espionage (§§ 98 et seq. StGB), or endangering the democratic constitutional state (§§ 84 et seq. StGB). These offenses differ above all in terms of the nature of the secret, the group of offenders, and the methods of the offense.
Procedural Particularities
Investigation Proceedings and Jurisdictions
The prosecution of offenses of treason is subject to special procedural provisions. Investigations are regularly conducted by the responsible state security divisions of the law enforcement authorities. Special procedural rules apply, for example, to searches, seizures, or telecommunication surveillance, in order to safeguard the special concerns of internal and external security.
Protection of Secrets in Criminal Proceedings
As sensitive information may be presented in criminal proceedings, special regulations on the protection of secrets apply. Agencies such as the Federal Office for the Protection of the Constitution or the Federal Criminal Police Office often participate, and heightened requirements on confidentiality and the admissibility of evidence are in place.
Treason in the International Context
The offense of treason is not a uniquely German phenomenon but can be found in varying forms with similar protective aims in the criminal codes of virtually all sovereign states. However, the structure and scope of protection may differ significantly, especially as regards the scope of protection, the definition of ‘state secrets,’ and the severity of penalties.
Critique and Legal Issues
Interference with Freedom of the Press
The criminal provisions on treason are repeatedly criticized due to their high potential for abuse. Particularly problematic is the distinction between permissible investigative reporting and punishable disclosure of secrets. The Federal Constitutional Court regularly adjudicates the balance between state security and press freedom on the basis of principles of proportionality.
Principle of Certainty and Interpretative Scope
The elements of the offense of treason require interpretation regarding the definition of state secrets and the assessment of a ‘threat to state security.’ This leads to uncertainties with respect to legal clarity and legal certainty in the application of these criminal law provisions.
Criminal Sanctions and Other Legal Consequences
Besides long prison sentences, further consequences are often provided for, such as loss of civil servant rights, revocation of official ranks, or exclusion periods for re-entering public service. The court may also order the confiscation of tools or means used in the offense.
Summary
Treason is among the most serious offenses against a state’s external and internal security. The statutory provisions in Germany’s Criminal Code specify comprehensively which actions are subject to penalty, how they are to be distinguished, and what legal consequences may follow. At the same time, treason represents an offense regularly positioned in the field of tension between the state’s security requirements, individual freedom, and public oversight. Modern requirements and societal developments, such as digital communication and a growing need for public scrutiny, are leading to the continuous evolution of the term and its practical application.
Frequently Asked Questions
What legal prerequisites must be met for criminal liability for treason?
For criminal liability for treason, certain legal prerequisites must be met, which are governed in German criminal law especially in Section 94 of the Criminal Code (StGB). First, the perpetrator must disclose a state secret or make it accessible to a foreign state or its agents. According to Section 93 StGB, ‘state secrets’ are only facts, objects, or knowledge that must be kept secret to preserve the external security of the Federal Republic of Germany, and to which only a limited group of persons have access. In addition, it is required that the disclosure or making accessible endangers the welfare of the Federal Republic of Germany, particularly its existence or security. Intent is mandatory: the perpetrator must act knowingly and willingly, at least in the form of conditional intent. Negligent conduct is insufficient. Furthermore, actual damage need not be proven; endangerment alone is sufficient. The act can already be punishable at the attempt stage if the perpetrator has taken direct steps toward execution (Section 96 StGB).
What penalties does the Criminal Code provide for treason?
The Criminal Code provides for severe penalties for treason to underscore the particular gravity of the offense. According to § 94 (1) StGB, the perpetrator is subject to imprisonment for not less than one year. In particularly serious cases—such as when the act causes the danger of war or brings the country into serious jeopardy—the law provides for imprisonment from five years up to life (§ 94 (2) StGB). The penalty may also be increased if special circumstances such as personal enrichment or acting out of self-interest are present. Attempted and preparatory acts of treason are also punishable under § 96 StGB and are likewise subject to substantial prison sentences.
What special procedural features apply in investigations suspecting treason?
In investigations for suspected treason, there are numerous special provisions. Because it is an offense associated with highly sensitive state secrets, investigations in Germany are generally carried out by the Federal Public Prosecutor General at the Federal Court of Justice (§ 120 Courts Constitution Act). Of special note is the possibility of ordering measures under the regulations for the protection of state secrets (§§ 96 et seq. StPO), such as restricting the public part of the main hearing or allowing only certain defense attorneys. Searches, surveillance, and other investigative measures may also be ordered under relaxed prerequisites. In addition, there is close coordination with the competent intelligence services to safeguard both the interests of the investigation and the protection of secrets.
What role do journalists and the media play in the context of treason?
Journalists and media can play a special role in connection with treason, especially when they publish secret information as part of their reporting. German law balances press freedom (Art. 5 Basic Law) and the needs of state security. On the one hand, the law on press freedom protects journalistic activity; on the other hand, journalists do not have absolute immunity if they are actively involved in the transfer or publication of state secrets. Case law always requires careful case-by-case consideration. Since the so-called ‘Cicero’ ruling of the Federal Constitutional Court, it has been clarified that investigative measures against journalists are only permissible under particularly strict requirements. The disclosure of state secrets to media representatives generally fulfills the offense unless journalists acquire or exploit the information through their own active efforts.
What is the relationship between prosecution and protection of secrets in treason cases?
The investigation of treason is characterized by a tension between the public interest in prosecution and the protection of state secrets. To protect sensitive information, special provisions are stipulated in §§ 96 et seq. of the Code of Criminal Procedure, such as the possibility to prohibit the use of evidence, order confidentiality in court proceedings, or exclude the public wholly or partially from court sessions. In certain cases, the release of evidence may even be refused if its disclosure would seriously harm the interests of the state. The decision on this is generally made by the Federal Government. Prosecutors must always balance the wisdom of investigation and prosecution against the risk of endangering state security interests.
Can attempted or preparatory acts of treason also be punishable?
Yes, German criminal law provides that not only completed acts but also attempted and preparatory acts of treason are punishable. The mere attempt to betray a state secret is punishable under § 96 StGB if the perpetrator has directly begun to execute the act. Certain preparatory acts, such as offering, handing over, or acquiring state secrets, can also be prosecuted and punished independently. The penalty here may be up to five years imprisonment. The criminalization of attempts serves as a preventive deterrent and aims to avert potential dangers to the external security of the state at an early stage.
Are there special legal protections for suspects in treason proceedings?
Yes, especially due to the seriousness of the allegation and the sensitivity of the underlying facts, special legal safeguards apply for suspects in treason proceedings. This includes that the defense of the accused must meet particular requirements: for example, in especially sensitive cases, only defense counsel with special trustworthiness and, if necessary, a security clearance may be appointed. The suspect is also entitled to be heard, to access the file, and to a defense attorney. Direct access to certain confidential information may be limited to protect secrecy, although this is always subject to judicial review and balancing. Additionally, surveillance and investigative measures are only permissible under specific, precisely regulated legal requirements, with the principle of proportionality always to be maintained.
