Translated by Joseph J. Darby, The American Series of Foreign Penal Codes, vol. 28 (Edward M. Wise ed., 1987)
Any deviation from the original translation is the responsibility of the Buffalo Criminal Law Center.
Section 1: The Criminal Law
Title I: Area of Applicability
Section 1. No punishment without statutory authorization
Conduct may be punished only if it has been made punishable by statute prior to the commission of the act.
Section 2. Temporal application
(1) The punishment and its collateral consequences are determined by the statute which was in force at the time of the act.
(2) If the statute was in the process of being amended at the time of the commission of the crime, the statute will be applied as it appeared on the books at the time the crime was completed.
(3) If the statute as it appeared at the completion of the crime is amended prior to the judgment in the case, the most lenient statute shall be applied.
(4) A statute whose validity was intended to expire at a particular time shall be applied to crimes committed during the period of its validity, even if it is no longer in force. This rule shall not apply if a statute provides otherwise.
(5) The provisions of subparagraphs (1) to (4) shall correspondingly apply to cases involving forfeiture, confiscation and destruction of the instrumentalities of crimes.
(6) Unless otherwise provided by statute, measures of rehabilitation and security shall be governed by the statute in force at the time of the judgment.
Section 3. Application to conduct within Germany
The German criminal law applies to acts committed within Germany.
Section 4. Application to conduct on German ships and aircraft
Regardless of the law of the place of commission, the German criminal law applies to acts committed on ships or aircraft authorized to fly the Federal German flag or to display the national insignia of the Federal Republic of Germany.
Section 5. Conduct outside Germany affecting domestic legal interests
Regardless of the law of the place of commission, the German criminal law is applicable to the following acts committed outside Germany:
1. Planning a war of aggression (Â§ 80);
2. High treason (Â§Â§ 81 to 83);
3. Endangering the democratic rule of law
(a) in cases falling within the provisions of Â§Â§ 89, 90a(l) and 90b, where the perpetrator is a German whose life orientation has been to the area of applicability of this Code and,
(b) in cases falling within the provisions of Â§Â§ 90 and 90a(2);
4. Treason and endangering external security (Â§Â§ 94 to I 00a);
5. Crimes against the national defense
(a) in cases falling within the provisions of Â§Â§ 109 and 109c to 109g and
(b) in cases falling within the provisions of Â§Â§ 109a, and 109d and 109b, where the perpetrator is a German whose life orientation has been to the area of applicability of this Code;
6. Abduction and casting political suspicion on another (Â§Â§ 234a, 241a), when the victim of these acts is a German domiciled or customarily resident within Germany;
7. Breach of plant or trade secrecy of a facility located within the area of applicability of this Code, or of an enterprise having its registered place of business there, or of an enterprise having its registered place of business abroad but which is controlled by an enterprise having its registered place of business within the area of applicability of this Code and which, together with it, constitutes a single enterprise;
8. Crimes against sexual self-determination in cases falling within the provisions of Â§ 174(l) and (3) and Â§Â§ 175 and 176(l) to (4) and (6), when at the time of the act both perpetrator and victim are Germans whose lives have been oriented to the area of applicability of this Code;
9. Termination of pregnancy (Â§ 218), when at the time of the act the perpetrator is a German whose life orientation has been to the area of applicability of this Code;
10. False unsworn statements, perjury and false solemn affirmations (Â§Â§ 153 to 156) in a proceeding before a court or other German office authorized to administer oaths or solemn affirmations and which is located within the area of applicability of this Code;
11. Crimes against the environment in cases falling within the provisions of Â§Â§ 324, 326, 330 and 330a, when the act is committed on the German continental shelf;
12. Acts committed by a German government employee or person specially obligated for a public function during or in connection with his duties;
13. Acts committed by a foreigner acting as a government employee or as a person specially obligated for a public function;
14. Acts against government employees, persons specially obligated for a public function, or members of the armed forces during or in connection with their duties.
Section 6. Conduct outside Germany affecting internationally protected interests
Regardless of the law of the place of commission, the German criminal law is also applicable to the following acts committed outside of Germany:
1. Genocide (Â§ 220a);
2. Crimes involving atomic energy, explosives and radiation in cases falling within the provisions of Â§Â§ 310b, 311(1) to (3), Â§ 311a(2) and Â§ 311b;
3. Attacks on air traffic (Â§ 316c);
4. Encouraging prostitution in cases failing within the provisions of Â§ 180a(3) to (5) and white slave traffic (Â§ 181);
5. Unauthorized dealings in narcotics;
6. Dissemination of pornography in cases falling within the provisions of Â§ 184(3);
7. Counterfeiting of money and securities, and the preparation of these crimes (Â§Â§ 146, 149, 151, and 152), as well as the counterfeiting of exemplars for Eurochecks and Eurocheck guarantee cards (Â§ 152a);
8. Economic subsidy fraud;
9. Acts committed abroad which are made punishable by the terms of an international treaty binding on the Federal Republic of Germany.
Section 7. Application to other types of conduct abroad
(1) The German criminal law is applicable to crimes committed abroad against a German if such conduct is punishable by the law of the place where it occurred, or if no criminal law enforcement existed at the place where the crime was committed.
(2) The German criminal law is likewise applicable to crimes committed abroad if such conduct is punishable by the law of the place where it occurred, or if no criminal law enforcement existed at the place where the crime was committed, and if the perpetrator:
1. was a German at the time of the crime or acquired German citizenship thereafter, or
2. was a foreigner at the time of the crime, was apprehended within Germany and, although the extradition statute would permit extradition for the type of offense involved, was not extradited either because a request for extradition was never made, or was refused, or because extradition is not feasible.
Section 8. Time of conduct
A crime is deemed to have been committed at the time when the perpetrator or accessory acted or, in case of an omission, should have acted. The time when the harm takes place is not determinative.
Section 9. Place of conduct
(1) A crime is deemed to have been committed at the place where the perpetrator acted or, in case of an omission, should have acted, or at the place where the statutorily proscribed harm occurs or where the perpetrator intended it to occur.
(2) Accessoryship is deemed to have occurred at the place where the crime was committed, as well as any place where the accessory acted or, in case of an omission, should have acted, or where he intended the crime to be committed. If the accessory acted in Germany in the commission of a crime abroad, his accessoryship is governed by German criminal law, even if the crime is not punishable according to the law of the place where it occurred.
Section 10. Special regulations for juveniles and young adults
This Code is applicable to juveniles and young adults only to the extent that the juvenile Court Law does not otherwise provide.
Title II: Terminology
Section 11. Expressions pertaining to persons and things
(1) Within the meaning of this Code, the word “relative” includes the following persons:
(a) relations by blood and by marriage in direct line, the spouse, the fiance, brothers and sisters, spouses of brothers and sisters, brothers and sisters of spouses, even where the relationship was created through an illegitimate birth, or when the marriage on which the relationship was founded no longer exists, or when the blood or marital relationship comes to an end.
(b) foster parents and foster children;
2. “government employee” designates whomsoever according to German law is
(a) a civil servant or judge;
(b) the occupant of some other office involving the exercise of public law functions;
(c) any person who has otherwise been appointed to a civil service position or who has been commissioned with the task of performing public administrative duties;
3. “judge” designates whomsoever according to German law is a professional or honorary judge
4. “person specially obligated for a public function” designates whomsoever, without being a government employee, is employed by or is working for:
(a) a government agency or some other bureau which performs public administrative functions; or
(b) an association or some other organization, plant or enterprise which performs public administrative functions for a government agency or for some other bureau,
and who, on the basis of a statute, is formally obligated to perform his duties in a conscientious manner;
5. “unlawful act” refers only to an act which fulfills the definitional elements of a criminal statute;
6. “undertaking of a crime” includes the attempt and the completion;
7. an “authority” includes a court;
8. “measure” includes every measure of rehabilitation and security, forfeiture, confiscation and destruction of the instrumentalities of the crime;
9. “compensation” includes any consideration consisting of a pecuniary benefit.
(2) Within the meaning of this Code, an act is also committed “Intentionally” when it contains all of the statutory constituent elements of a crime requiring intent with respect to conduct but, with respect to some specially designated harm caused thereby, negligence only.
(3) The word “writings” shall be construed to include sonic and pictorial recordings, as well as illustrations and other representations, when the provision in which the word “writings” appears expressly refers to this subparagraph.
Section 12. Felonies and misdemeanors
(1) Felonies are crimes which are punishable by imprisonment for one or more years.
(2) Misdemeanors are crimes the minimum punishment of which is less than one year’s imprisonment or a fine.
(3) Aggravating or mitigating circumstances, which are provided for in accordance with the provisions of the General Part or for especially serious or less serious cases, shall not be taken into consideration in making this division.
Section Two: Criminal Conduct
Title I: Basis for the Imposition of Criminal Punishment
Section 13. Omission as commission
(1) Whoever fails to prevent a harm which is part of the constitutent elements of a crime may be punished under this Code only if he was under a legal duty to prevent the harm, and if his failure to act was equivalent to an affirmative act for purposes of establishing the statutorily defined constituent elements of the crime.
(2) The punishment may be reduced in accordance with the provisions of Â§ 49(l).
Section 14. Acting for another
(1) Whoever acts
1. as the authorized representative of a juridicial person or as a member of such representative,
2. as the authorized representative partner of a commercial partnership or
3. as the legal representative of another
is subject to punishment under a statute defining a crime the constituent elements of which include special characteristics, relationships or circumstances (special personal characteristics) if these characteristics pertain not to him but to his principal.
(2) When the owner or his authorized agent
1. commissions a person to manage all or part of a plant, or
2. expressly commissions a person to act on his own responsibility in performing tasks incumbent on the owner of the plant, and when this person acts on the basis of this commission, he shall be subjected to punishment under a statute defining a crime the constitutent elements of which include special personal characteristics if these characteristics pertain not to him but to the owner of the plant. An enterprise is the same as a plant within the meaning of sentence one. The provisions of sentence one are likewise correspondingly applicable in cases where a person similarly commissioned acts on behalf of a bureau that has been charged with the performance of public administrative duties.
(3) Subparagraphs (1) and (2) are applicable even though the legally significant act on which the agency or commission relationship was based is void.
Section 15. Intentional and negligent conduct
If a statute does not expressly make negligent conduct punishable it shall be construed to require intentional conduct.
Section 16. Mistake of fact
(1) Whoever in committing an act is mistaken about the existence of facts which are part of the statutorily defined constituent elements of a crime does not act intentionally. The possibility of imposing criminal punishment for negligent conduct remains unaffected.
(2) Whoever in committing an act mistakenly assumes the existence of circumstances which would form part of the statutorily defined constitutent elements of a lesser offense can only be punished for intentional conduct in accordance with the statute defining the lesser offense.
Section 17. Mistake of law
A person who commits an act in the mistaken belief that it is lawful acts without guilt, provided he could not have avoided making the mistake. If he could have avoided it, the punishment may be reduced in accordance with the provisions of Â§ 49(l).
Section 18. Increased punishment for special consequences of crime
Where a statute provides for a more severe punishment for a crime which produces special consequences, the perpetrator or accessory may be so punished only if, with respect to these special consequences, he may be charged with at least negligence.
Section 19. Criminal incapacity of the child
A child who at the time of the act is under the age of fourteen has no criminal capacity.
Section 20. Lack of criminal capacity because of mental disorder
A person is not criminally responsible if at the time of the act, because of a psychotic or similar serious mental disorder, or because of a profound interruption of consciousness or because of feeblemindedness or any other type of serious mental abnormality, he is incapable of understanding the wrongfulness of his conduct or of acting in accordance with this understanding.
Section 21. Diminished capacity
If, at the time of the crime, the capacity of the perpetrator to understand the wrongfulness of his conduct or of acting in accordance with this understanding is substantially diminished due to the existence of grounds set forth in Â§ 20, his punishment shall be reduced in accordance with the provisions of Â§ 49(l).
Title II: Attempt
Section 22. Definition
An attempt to commit a crime occurs when a person, in accordance with his conception of the crime, moves directly toward its accomplishment.
Section 23. Punishment of an attempt
(1)An attempt to commit a felony is always punishable, while an attempt to commit a misdemeanor is punishable only if a statute expressly so provides.
(2) An attempt may be punished less severely than the completed crime (Â§ 49(l)).
(3) If, due to a gross lack of understanding, the perpetrator failed to realize that an attempt could not possibly lead to the completion of the act by virtue of the nature of the object against which or the means with which the act was to be committed, the court in its discretion may refrain from imposing punishment or it may reduce the punishment (Â§ 49(2)).
Section 24. Abandonment
(1) A person shall not be punished for an attempt if he voluntarily abandons the further execution of his criminal scheme or prevents its completion. If, quite apart from anything done by the abandoning party, the crime is not completed, no punishment shall be imposed on him if he voluntarily and earnestly endeavored to prevent its completion.
(2) Where several persons participate in an offense, no punishment for an attempt shall be imposed on whomsoever voluntarily prevents its completion. Nor will punishment be imposed on any person who, through his voluntary and earnest endeavors, attempts to prevent the commission of the offense, if it was not completed for other reasons, or if it was completed quite independently of his antecedent conduct.
Title III: Parties to Crime
Section 25. Principals
(1) A person who, acting himself or through another, commits a crime shall be punished as a perpetrator.
(2) If several persons act in concert to commit a crime, each one shall be punished as a perpetrator (accomplice).
Section 26. Instigation
Whoever intentionally incites another to intentionally commit an unlawful act shall be punished as an instigator in the same manner as the perpetrator.
Section 27. Aiding and abetting
(1) Whoever intentionally renders assistance to enable another to intentionally commit an unlawful act shall be punished as an aider and abettor.
(2) The punishment imposed on an aider and abettor shall be determined with reference to that which is applicable to the perpetrator. It shall be reduced in accordance with the provisions of Â§ 49(l).
Section 28. Special personal characteristics
(1) If the accessory (accessory before the fact or aider and abettor) does not possess those special personal characteristics (Â§ 14(l)) on which the criminal responsibility of the perpetrator is founded, his punishment shall be reduced in accordance with the provisions of Â§ 49(i).
(2) If a statute provides that special personal characteristics aggravate, mitigate or exclude punishment, this shall be construed to refer only to the parties (perpetrators or accessories) to whom they pertain.
Section 29. Independent criminal responsibility of parties to crime
Each party to a crime shall be subject to punishment in accordance with his own individual guilt quite apart from the guilt of the other participants.
Section 30. Attempt to enlist participation in crime
(1) Whoever attempts to incite another to commit a felony or whoever instigates another to do so shall be punished in accordance with the provisions governing felony attempts. The punishment shall be reduced in accordance with the provisions of Â§ 49(l). The provisions of Â§ 23(3) shall correspondingly apply.
(2) Whoever declares his willingness, accepts an offer of another, or agrees with another to commit or to instigate a felony shall be similarly punished.
Section 31. Abandonment of the attempt to enlist participation in crime
(1) No one shall be punished under Â§ 30 if he voluntarily:
1. abandons the attempt to incite another to commit a felony and who averts the possibly existing risk that the other person will commit the crime,
2. after having declared his willingness to commit a felony, gives up the idea or,
3. after having agreed with others or having accepted the offer of another to commit a felony, prevents it.
(2) If, quite apart from anything done by the abandoning party, the crime is not committed, or if it was committed independently of his antecedent conduct, no punishment shall be imposed on him if he voluntarily and earnestly endeavored to prevent it.
Title IV: Self Defense and Necessity
Section 32. Self defense
(1) Whoever commits an act in self defense does not act unlawfully.
(2) Self defense is that defense which is required in order to prevent a present unlawful attack on oneself or on another.
Section 33. Exceeding the bounds of self defense
The perpetrator will not be punished if he exceeds the bounds of self defense because of confusion, fear or fright.
Section 34. Necessity as justification
Whoever commits an act in order to avert an imminent and otherwise unavoidable danger to the life, limb, liberty, honor, property or other legal interest of himself or of another does not act unlawfully if, taking into consideration all the conflicting interests, in particular the legal ones, and the degree of danger involved, the interest protected by him significantly outweighs the interest which he harms. This rule applies only if the act is an appropriate means to avert the danger.
Section 35. Necessity as excuse
(1) Whoever commits an unlawful act in order to avert an imminent and otherwise unavoidable danger to his own life, limb, or liberty, or to that of a relative or person close to him, acts without guilt. This rule does not apply if under the prevailing circumstances the perpetrator could be expected to have assumed the risk, especially because he was himself the cause of the danger or because he found himself in a special legal relationship. If however, the perpetrator did not have to assume the risk with regard to a special legal relationship, the punishment may be reduced in accordance with the provisions of Â§ 49(l).
(2) If, in committing the act, the perpetrator assumes the existence of circumstances which under subparagraph (1) would excuse his conduct, he shall be punished only if he could have avoided the error. The punishment shall be reduced In accordance with the provisions of Â§ 49(l).
Title V: Parliamentary Privilege
Section 36. Parliamentary statements
Members of the Bundestag, the Federal Convention or of one of the legislative bodies of a Land belonging to the Federal Republic of Germany shall never be held responsible outside their respective legislative bodies for their voting or for any statement which they make in the legislative body or in one of its committees.
This provision shall not apply to defamatory insults.
Section 37. Parliamentary reports
No criminal responsibility attaches to truthful reports about the public sessions of those legislative bodies and committees designated in Â§ 36.