Publications, high treasonous, endangering the state – Legal Classification and Significance
Explanation of Terms and Definition
Als high treasonous and state-endangering publications under German law are understood to be publications, documents or other representations which pursue or promote certain criminal objectives against the sovereignty of the Federal Republic of Germany or its constitutional order. The term is particularly used in connection with offenses endangering state security and the protection of the constitutional order.
High treasonous and state-endangering publications are those whose content is intended to commit a high treasonous or state-endangering offense, such as the violent abolition of the constitutional order or the endangering of Germany’s territorial integrity (see §§ 94 et seq. German Criminal Code [StGB]). The definition includes both printed works and electronic media, images, posters, and comparable forms of representation.
Legal Bases
Criminal Code (StGB)
The relevant regulations regarding high treasonous and state-endangering publications are found in §§ 94 to 100 StGB (high treason, endangering the democratic constitutional state) as well as in the provisions of §§ 86, 86a and 130 StGB, which address the dissemination and possession of prohibited publications as well as incitement of the people.
Key regulations in this context are:
- § 94 StGB (Treason against the Country)
- § 96 StGB (Incitement to Treason against the Country)
- § 100 StGB (Acts of Sabotage Endangering the State)
- § 86 StGB (Distribution of Propaganda Material of Unconstitutional Organizations)
- § 86a StGB (Use of Symbols of Unconstitutional Organizations)
Secondary penal law and special statutes
In addition to the Criminal Code, there are further relevant laws that govern the handling of high treasonous and state-endangering publications, such as the Law on Associations (§ 3 VereinsG – Prohibition of Disseminating Publications of Banned Associations) and the Youth Protection Act (publications that are classified as harmful to minors).
Constituent Elements
To be considered high treasonous or state-endangering, publications must meet certain substantive requirements:
- Subjective Purpose of the Publication: The content must be aimed at preparing, inciting, or promoting the commission of a high treasonous or state-endangering crime (§§ 111-130 StGB). This includes, for example, incitement to overthrow, to abolish the federal order, or to undermine democratic institutions.
- Objective Connection to Endangerment: The publication must be capable of significantly impairing public safety or the reputation of the state. This is the case, for example, when there are concrete calls for violence or detailed instructions for committing serious crimes against the state are published.
- Form of Offense: This can be an independent offense (e.g., through distribution or possession) or a participation offense (e.g., support, production, importation).
Criminal Liability and Range of Penalties
The manufacture, distribution, importation, storage, and possession of high treasonous or state-endangering publications are defined as criminal acts in the aforementioned statutes. Mere possession or making them accessible (for example, online) may suffice for criminal liability.
The threatened penalties may vary depending on the offense, but range from custodial sentences up to several years of imprisonment. Particularly serious are the production, dissemination, or acquisition as part of organized or repeated actions.
Seizure and Confiscation
According to § 74d StGB, high treasonous and state-endangering publications can be seized and confiscated to prevent further threats to public safety. This also applies to digital contents and electronic means of communication.
Measures for seizure and confiscation are intended to prevent further dissemination of such publications and act in a preventive manner.
Significance in the Digital Age
The dissemination of high treasonous and state-endangering publications has gained new relevance through digital media, social networks, and the darknet. Law enforcement agencies have observed a marked increase in such propaganda on the internet. Digital dissemination is subject to the same criminal law provisions as traditional printed media or other tangible forms.
Differentiation from Other Publications
Not every statement critical of the state or hostile to the government meets the criteria for high treasonous or state-endangering publications. The criminalized publications must have a direct relation to serious crimes against the state order. At the same time, freedom of opinion and the fundamental right to free expression are protected; criminal liability requires the existence of the criteria outlined above.
Case Law and Practice
The courts interpret the term high treasonous and state-endangering publications narrowly to ensure a balance between liberty and security. In individual cases, the content, the specific situation of dissemination, and the recognizable aim of the publication are decisive.
International References
In the European and international context, comparable regulations exist, for instance in Austria (§§ 241 et seq. StGB – High Treason, Hostile Associations) or in Switzerland (Art. 265 StGB – High Treason Against the State). International treaties for the protection of state order and the fight against extremist propaganda are also relevant.
Summary
High treasonous and state-endangering publications are comprehensively defined under German law and are of great practical importance for the protection of the state order. The statutory provisions establish a balance between freedom and security and make it clear: The boundaries of what is permitted are crossed when the aim or suitability is present to seriously endanger the political basic order, the existence of the state, or its constitutional organs. The criminal provisions serve both prevention through intervention and seizure measures, as well as the prosecution of concrete acts of endangerment.
Frequently Asked Questions
Are high treasonous and state-endangering publications subject to special rules regarding seizure?
Yes, publications classified as high treasonous or state-endangering are subject to special seizure and safekeeping measures according to the Code of Criminal Procedure (StPO) and supplementary provisions of the Penal Code (StGB). The court or law enforcement authorities may secure these publications if they are needed as evidence or if their possession, use, or dissemination poses a danger to state order or public safety. The relevant legal bases are primarily §§ 94 et seq. StPO and additionally §§ 74 and 86a StGB with respect to confiscation and destruction. The order to seize may be made by judicial decision or, in cases of urgency, by the public prosecutor or the police. Affected parties may appeal against these measures, although the state’s interest in securing and neutralizing the material is generally given priority.
What are the criminal consequences for the production, dissemination or possession of high treasonous and state-endangering publications?
The production, dissemination, or possession of high treasonous and state-endangering publications is punishable under German law according to § 94 StGB in conjunction with §§ 100a et seq. StGB, sometimes subject to considerable penalties. Depending on the offense, penalties range from fines to several years of imprisonment. High treasonous publications are usually in the context of preparation for high treason (§§ 81, 83 StGB), while state-endangering publications are particularly relevant in connection with propaganda material (§ 86 StGB) or the use of unconstitutional symbols (§ 86a StGB). The legislature regards these offenses as attacks on the security and existence of the Federal Republic of Germany and/or its constitutional organs and state institutions, so that correspondingly severe penalties apply. This also applies to attempts and incitement, as well as to the storage of such publications for specific purposes.
What role do confiscation and destruction of high treasonous and state-endangering publications play?
According to § 74 StGB, the court may order that high treasonous and state-endangering publications be confiscated and destroyed if they serve as evidence or means for the crime, or if their continued existence poses a danger to public order. Confiscation is a measure of so-called repressive hazard prevention and serves to prevent future crimes. Destruction ensures the permanent removal of such publications from circulation. The order for confiscation can be challenged before becoming final, and third parties affected can assert their rights within certain deadlines (§ 111k StPO).
May high treasonous and state-endangering publications be used for scientific or journalistic purposes?
The handling of high treasonous and state-endangering publications is also subject to strict legal requirements for scientific or journalistic purposes. While § 86 Section 3 StGB provides for so-called “privileges”—i.e., exceptions for purposes of civic education, defense against unconstitutional activities, art, science, research, teaching, or reporting on contemporary or historical events— the requirements for this must be carefully examined and documented. Furthermore, the burden of proof for the existence of this exception in disputes lies with the user of the publications. If privileges are exceeded or used for improper purposes, criminal consequences may nevertheless arise, including seizure and confiscation.
Are there differences in the legal treatment of high treasonous and state-endangering publications?
Yes, German criminal law distinguishes between high treasonous publications, which aim at attacking the constitutional order or the existence of the state, and state-endangering publications, which are directed rather against individual state organs or internal or external security, but do not constitute high treason. The legal consequences, namely penalties, confiscation or destruction, may differ, as high treasonous publications are regularly subject to more severe sanctions and higher minimum sentences. They are also often the subject of extended investigative powers such as telecommunications surveillance and dragnet investigations.
Who is allowed to make decisions about the handling of such publications during investigations?
During the investigation proceedings, public prosecutors and law enforcement authorities first decide on immediate measures regarding safeguarding or seizure. For further, especially permanent measures such as confiscation or destruction, a court decision is always required. In the event of seizure, a complaint can be filed, which is decided upon by the district court or regional court. In the main proceedings, the (criminal) court is responsible for all decisions regarding such publications. Legal review is the responsibility of the ordinary courts, sometimes also the Federal Constitutional Court, especially in cases of constitutional rights being affected.
