§ 1. No punishment without statutory law.
An act can be punished only if it had been made punishable by statutory
law prior to the act’s commission.
§ 2. Temporal applicability.
(I) The punishment and its collateral effects are
determined by the statutory law applicable at the time of the act.
(II) If the penal threat is amended during the act’s
commission, then that statutory law is to be
applied which is applicable at the act’s completion.
(III) If the statutory law applicable at the act’s
completion is amended before the judgment, then the most lenient statutory
law is to be applied.
(IV) A statutory law that is intended to be applicable
only for a specified time is to be applied to acts committed while it is
applicable, even if it has expired. This does not apply insofar as
a statutory law provides otherwise.
(V) Subsections (I) to (IV) correspondingly apply
to forfeiture, confiscation and disablement.
(VI) Measures of betterment and security are to
be determined according to the statutory law applicable at the time of
judgment, unless provided otherwise by statutory law.
§ 3. Applicability to acts within the country.
German penal law is applicable to acts committed within the country.
§ 4. Applicability to acts on German ships and aircraft.
German penal law is applicable, independent of the law of the place
of the act, to acts committed on a ship or an aircraft entitled to display
the federal flag or the insignia of state membership of the Federal Republic
of Germany.
§ 5. Acts outside the country against law goods within
the country.
German penal law is applicable, independent of the law of the place
of the act, to the following acts committed outside the country:
1. Preparation for a war of aggression (§ 80);
2. High treason (§§ 81 to 83);
3. Endangering the democratic law state
(a) in cases under §§
89, 90a(I) and 90b, if the actor is a German and the foundation of his
life lies within the scope of spatial applicability of this law, and,
(b) in cases under §§
90 and 90a(II);
4. Treason against the country and endangering external
security (§§ 94 to 100a);
5. Offenses against the defense of the country
(a) in cases under §§
109 and 109e to 109g and
(b) in cases under §§
109a, 109d and 109h, if the actor is a German and the foundation of his
life lies within the scope of spatial applicability of this law;
6. Abduction and political suspicion (§§
234a, 241a), if the act is directed against a German domiciled or customarily
resident within the country;
6a. Removal of a child in cases under § 235(II)(2),
if the act is directed against a person domiciled or customarily resident
within the country;
7. Violation of business or trade secrets of a business
located within the scope of spatial applicability of this law, of an enterprise
located there, or of an enterprise located outside the country that is
controlled by an enterprise located within the scope of spatial applicability
of this law and forms a concern with that enterprise;
8. Offenses against sexual self-determination
(a) in cases under §
174(I) and (III), if the actor and the person against whom the act is committed
are Germans at the time of the act and the foundation of their lives lies
within the country, and
(b) in cases under §§
176 to 176b and 182, if the actor is a German;
9. Termination of pregnancy (§ 218), if the
actor is a German at the time of the act and the foundation of his life
lies within the scope of spatial applicability of this law;
10. False unsworn statement, perjury and false affirmation
in place of an oath (§§ 153 to 156) in a proceeding that is pending,
within the scope of spatial applicability of this law, before a court or
some other German office charged with the administration of oaths or of
affirmations in place of an oath;
11. Offenses against the environment in cases under
§§ 324, 326, 330 and 330a, that are committed within the scope
of the exclusive German economic zone, insofar as international law treaties
for the protection of the high seas permit their prosecution as offenses;
12. Acts committed by a German office holder or
person with a special duty of public service during an official stay or
in connection with his service;
13. Acts committed by a foreigner acting as an office
holder or person with a special duty of public service;
14. Acts committed against an office holder, a person
with a special duty of public service or a soldier of the Bundeswehr during
the execution of their service or in connection with their service;
15. Trade in organs (§ 18 of the Transplant
Law), if the actor is a German at the time of the act.
§6. Acts outside the country against internationally
protected law goods.
German penal law furthermore is applicable, independent of the law
of the place of the act, to the following acts committed outside of the
country:
1. Genocide (§ 220a);
2. Crimes involving atomic energy, explosives and
radiation in cases under §§ 307, 308 (I) to (IV), 309(II) and
310;
3. Attacks on air and sea traffic (§ 316c);
4. Traffic in human beings (§ 180b) and aggravated
traffic in human beings (§ 181);
5. Unauthorized distribution of narcotics;
6. Dissemination of pornography in cases under §
184(III) & (IV);
7. Forgery of currency and securities (§§
146, 151 and 152), forgery of guarantee cards and forms for Eurocheques
(§ 152a(I) to (IV)), as well as their preparation (§§ 149,
151, 152 and 152a(V));
8. Economic subsidy fraud (§ 264);
9. Acts that are to prosecuted by the terms of an
international treaty binding on the Federal Republic of Germany even if
they are committed outside the country.
§ 7. Applicability to acts outside the country in other
cases.
(I) German penal law is applicable to acts committed
outside the country against a German, if the act is threatened with punishment
at the place of the act or the place of the act is not subject to any penal
power.
(II) German penal law is applicable to other acts
committed outside the country, if the act is threatened with punishment
at the place of the act or the place of the act is not subject to any penal
power and if the actor
1. was a German at the time of the act or became
a German after the act, or
2. was a foreigner at the time of the act, was apprehended
within the country and, although the Extradition Law would permit extradition
according to the type of act, is not extradited because a request for extradition
was not made, or was refused, or extradition is not feasible.
§ 8. Time of the act.
An act is committed at the time when the actor or the participant has
acted or, in case of an omission, should have acted. It is not significant
when the result occurred.
§ 9. Place of the act.
(I) An act is committed at any place where the actor
has acted or, in case of an omission, should have acted, or where the result
belonging to the act definition occurred or was to occur according to the
actor’s belief.
(II) Participation is committed at the place where
the act is committed, as well as at any place where the participant has
acted or, in case of an omission, should have acted or wheter the act was
to be committed according to his belief. If the participant in an
act outside the country has acted within the country, then the German penal
law is applicable to the participation, even if the act was not threatened
with punishment according to the law of the place of the act.
§ 10. Special provisions for juveniles and young adults.
This law is applicable to juveniles and young adults only insofar as
the Juvenile Court Law does not provide otherwise.
§ 11. Terms pertaining to persons and things.
(I) In the sense of this law,
1. “relative" is someone who belongs to the following
persons:
(a) relations by blood
and by marriage in direct line, the spouse, the fiancé, siblings,
spouses of siblings, siblings of spouses, even when the marriage that created
the relationship no longer exists, or when the relationship by blood or
marriage has ceased.
(b) foster parents and foster
children;
2. "office holder" is someone who, according to
German law,
(a) is a civil servant or
judge;
(b) occupies some other
office governed by public law;
(c) is otherwise assigned
at, or by request of, an agency or similar office to perform tasks of public
administration regardless of the organizational form chosen for the performance
of these tasks;
3. "judge" is someone who, according to German law,
is a professional or honorary judge;
4. "person with a special duty of public service"
is someone who, without being a an office
holder, is employed by or active for:
(a) an agency or other office
that performs tasks of public administration, or
(b) an association or some
other organization, business or enterprise that performs tasks of public
administration for an agency or for some other office, and who, on the
basis of a law, is formally obligated to perform his duties conscientiously;
5. "unlawful act" is only that act which fulfills
the act definition in a penal law;
6. "undertaking of an act" is its attempt and its
completion;
7. "agency" is also a court;
8. "measure" is any measure of betterment and security,
as well as forfeiture, confiscation, and disablement;
9. "compensation" is any consideration consisting
of a pecuniary benefit.
(II) An act is also “intentional” in the sense of
this law if it manifests a statutory act definition that presupposes intention
with respect to conduct, but lets negligence suffice with respect to the
specific result brought about by the conduct.
(III) Audio and video recordings, databases, images
and other representations are equivalent to writings in those provisions
that refer to this subsection.
§ 12. Felonies and misdemeanors.
(I) Felonies are unlawful acts that are threatened
at a minimum with punishment by deprivation of liberty for one year or
more.
(II) Misdemeanors are unlawful acts that are threatened
at a minimum with a lesser punishment by deprivation of liberty or monetary
punishment.
(III) Aggravations and mitigations, which are provided
for according to the provisions of the General Part or in especially serious
or less serious cases, are irrelevant for this distinction.
§ 13. Commission by omission.
(I) Whoever fails to avert a result belonging to
the act definition in a penal law is only punishable under this law if
he is legally responsible for the non-occurrence of the result and if the
omission is equivalent to the manifestation of the statutory act definition
by commission.
(II) The punishment can be mitigated according to
§ 49(l).
§ 14. Acting for another.
(I) If someone acts
1. as the authorized representative organ of a juridical
person or as a member of such an organ,
2. as the authorized representative partner of a
commercial partnership or
3. as the legal representative of another,
then a law according to which punishability is based on special personal
qualities, relationships or circumstances (special personal characteristics)
is to be applied also to the representative if these characteristics are
present not in the representative but in the represented.
(II) If someone is
1. commissioned to manage a business in its entirety
or in part, or
2. explicitly commissioned to perform on his own
responsibility tasks incumbent upon the business’s owner, by the owner
of the business or a person otherwise authorized to do so, and he acts
on the basis of this commission, then a law according to which punishability
is based on special personal characteristics is to be applied also to the
commissioned person if these characteristics are present not in him but
in the owner of the business. An enterprise is equivalent to a business
in the sense of clause 1. If someone acts on the basis of a corresponding
commission for an office that performs tasks of public administration,
then clause 1 is to be applied accordingly.
(III) Subsections (I) and (II) are also to be applied
if the legal act that was to establish the representation authorization
or the commission relationship is void.
§ 15. Intentional and negligent conduct.
Only intentional conduct is punishable, unless the statutory law expressly
threatens negligent conduct with punishment.
§ 16. Mistake regarding circumstances of the act.
(I) Whoever in committing the act does not know
of a circumstance belonging to the statutory act definition does not act
intentionally. The punishability for negligent commission remains
unaffected.
(II) Whoever in committing the act mistakenly assumes
circumstances that would manifest the act definition of a more lenient
law, can be punished for intentional commission only according to the more
lenient law.
§ 17. Mistake regarding prohibition.
If the actor in committing the act lacks the recognition that he acts
unlawfully, then he acts without guilt if this mistake was unavoidable.
Could the actor have avoided the mistake, then the punishment can be mitigated
according to § 49(I).
§ 18. Heavier punishment for special effects of an act.
If the law ties a heavier punishment to a special effect of the act,
then the punishment applies to the actor or the participant only if he
was at least negligent with respect to this effect.
§ 19. Guilt incapacity of the child.
Whoever in committing the act is not yet fourteen years old is incapable
of guilt.
§ 20. Guilt incapacity because of mental disorder.
Whoever in committing the act is incapable of appreciating the unlawfulness
of the act or of acting according to this appreciation because of a pathological
mental disorder, because of a serious consciousness disorder or because
of feeblemindedness or another serious mental abnormality acts without
guilt.
§ 21. Diminished guilt capacity.
If, in committing the act, the actor’s capacity to appreciate the unlawfulness
of the act or to act according to this appreciation is substantially diminished
for one of the reasons indicated in § 20, then the punishment can
be mitigated according to § 49(I).
§ 22. Definition of the term.
Whoever immediately proceeds to the manifestation of the act definition
according to his conception of the act attempts to commit an offense.
§ 23. Punishability of the attempt.
(I) The attempt to commit a felony is always punishable,
the attempt to commit a misdemeanor only if the statutory law expressly
so provides.
(II) The attempt can be punished more leniently
than the completed act (§ 49(I)).
(III) If the actor, due to a gross lack of comprehension,
failed to realize that the attempt could not possibly lead to completion
on account of the nature of the object against which or the means by which
the act was to be committed, then the court can dispense with punishment
or reduce the punishment in its discretion (§ 49(II)).
§ 24. Withdrawal.
(I) Whoever voluntarily abandons the further execution
of the act or prevents its completion shall not be punished for attempt.
If he act is not completed without contribution by the person withdrawing
from the attempt, then he will be free from punishment if he voluntarily
and earnestly seeks to prevent the completion.
(II) If several persons participate in the act,
then anyone who voluntarily prevents the completion is not punished for
attempt. However, to be free from punishment it suffices that he
voluntarily and earnestly seek to prevent the completion of the act if
it is not completed without his contribution or independent of his previous
contribution to the act.
§ 25. Actorship.
(I) Whoever commits the offense himself or through
another is punished as an actor.
(II) If several persons commit the offense jointly,
then each is punishment as an actor (joint
actor).
§ 26. Instigation.
Whoever intentionally induces another to his intentionally committed
unlawful act is punished as an instigator equal to an actor.
§ 27. Aid.
(I) Whoever intentionally aids another in his intentionally
committed unlawful act is punished as an aider.
(II) The punishment for the aider is determined
by the threatened punishment for the actor. It is to be mitigated
according to § 49(I).
§ 28. Special personal characteristics.
(I) If the special personal characteristics (§
14(I)) giving rise to the actor’s punishability are not present in the
participant (instigator or aider), then his punishment is to be mitigated
according to § 49(I).
(II) If the statutory law provides that special
personal characteristics aggravate, mitigate or preclude punishment, then
this is applicable only to the party (actor or participant) who possesses
them.
§ 29. Independent punishability of each party.
Each party is punished according to his guilt without regard to the
guilt of the other.
§ 30. Attempted participation.
(I) Whoever attempts to induce another to commit
or instigate a felony is punished according to the provisions regarding
the attempt to commit a felony. However, the punishment is to be
reduced according to § 49(I). § 23 (III) is applicable
accordingly.
(II) Whoever declares himself ready to, acceded
to another’s request to, or makes plans with
another to, commit or instigate a felony is punished in the same manner.
§ 31. Withdrawal from attempted participation.
(I) Whoever voluntarily
1. abandons the attempt to induce another to commit
a felony and averts any danger that the other commit the act
2. after having declared himself ready to commit
a felony, abandons his plan or,
3. after having planned with another, or having
acceded to another’s request, to commit a felony, prevents the act,
is not punished according to § 30.
(II) If the act does not occur without contribution
by the person withdrawing from the attempt or if it is committed independent
of his previous behavior, then his voluntary and earnest effort to prevent
act suffices for him to be free from punishment.
§ 32. Emergency defense.
(I) Whoever commits an act necessitated by an emergency
defense acts not unlawfully.
(II) Emergency defense is that defense which is
necessary to avert a present unlawful attack upon oneself or another.
§ 33. Exceeding the emergency defense.
If the actor exceeds the bounds of emergency defense due to confusion,
fear or fright, then he is not punished.
§ 34. State of emergency as justification.
Whoever commits an act in a present and otherwise unavertable danger
to life, body, liberty, honor, property or another law good to avert the
danger from himself or another, acts not unlawfully if in weighing the
conflicting interests, particularly the affected law goods and the degree
of the danger threatening them, the protected interest substantially outweighs
the impaired one. However, this is applicable only insofar
as the act is an appropriate means to avert the danger.
§ 35. State of emergency as excuse.
(I) Whoever commits an unlawful act in a present
and otherwise unavertable danger to life, body or liberty to avert the
danger from himself, a relative or another person close to him, acts without
guilt. This is not applicable insofar as the actor can be expected
to accept the danger, particularly because he himself caused the danger
or because he held a special legal relationship; however, the punishment
can be mitigated according to § 49(I) if the actor did not have to
accept the danger in consideration of a special legal relationship.
(II) If the actor in committing the act mistakenly
assumes circumstances that would excuse him according to subsection (I),
then he is punished only if he could avoided the mistake. The punishment
is to be mitigated according to § 49(I).
§ 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.
§ 37. Parliamentary reports.
No criminal responsibility attaches to truthful reports about the public
sessions of those legislative bodies and committees designated in §
36.