The Strafgesetzbuch (German Criminal Code)
The Strafgesetzbuch (StGB) is the German Criminal Code. Enacted originally in 1871 for the German Empire, it has been substantially reformed and modernised while retaining its fundamental structure. The StGB is the primary source of substantive criminal law in Germany, defining criminal offences, establishing defences, and prescribing penalties. It is complemented by numerous ancillary criminal statutes dealing with specialised areas such as drug offences (Betäubungsmittelgesetz), tax crimes (Abgabenordnung), environmental offences, and regulatory offences (Ordnungswidrigkeitengesetz). The StGB reflects the principles of the Rechtsstaat, particularly the principle of legality, the principle of culpability, and the principle of proportionality.
Historical Development
The StGB of 1871 was based on the Prussian Criminal Code of 1851, which itself drew on the Bavarian Criminal Code of 1813 drafted by Paul Johann Anselm von Feuerbach. The original StGB reflected liberal principles including nulla poena sine lege (no penalty without law), the prohibition of retroactive criminalisation, and the requirement of fault (Schuldprinzip). Major reforms in the 1960s and 1970s modernised the StGB: the Grand Criminal Law Reform (Große Strafrechtsreform) of 1969 decriminalised adultery and homosexuality, reformed sexual offences to focus on protection of sexual self-determination, and introduced fines on a daily-rate system (Tagessatzsystem) as an alternative to short custodial sentences. Post-reunification amendments addressed new forms of crime including organised crime, money laundering, computer fraud, and terrorism. The StGB has been further reformed to implement European Union directives on the protection of the financial interests of the Union, combatting terrorism, and strengthening victims’ rights.
General and Special Parts
The StGB is divided into two principal parts. The General Part (Allgemeiner Teil, sections 1–79b) contains foundational provisions applicable to all offences. It addresses the territorial and temporal scope of criminal law (applying the principle of territoriality with extensions for extraterritorial offences), the definition of acts and omissions, fault requirements (intention including dolus eventualis, and negligence), defences including self-defence (Notwehr), necessity (rechtfertigender Notstand and entschuldigender Notstand), mistake of law and mistake of fact, attempt, participation (perpetration, incitement, aiding and abetting), and sanctions (fines, imprisonment, security measures, and ancillary consequences). The Special Part (Besonderer Teil, sections 80–358) defines specific offences organised by the legal interest protected: offences against life (murder, manslaughter, negligent homicide), offences against property (theft, robbery, fraud, embezzlement), offences against the person (assault, false imprisonment), offences against sexual self-determination, offences against public order, and offences against the state.
Fundamental Principles
The StGB is governed by principles derived from the Rechtsstaat concept. The principle of legality (nullum crimen, nulla poena sine lege), codified in section 1 StGB and Article 103(2) GG, prohibits retroactive criminalisation, requires criminal offences to be defined with sufficient certainty (Bestimmtheitsgebot), prohibits analogy to the detriment of the accused, and requires that criminal offences be defined by statute. The principle of culpability (Schuldprinzip) requires that punishment be proportionate to the offender’s personal responsibility: no person may be punished without fault. The principle of proportionality governs the imposition of sanctions, requiring that the severity of punishment correspond to the gravity of the offence and the degree of culpability. The StGB also reflects the principle of ultima ratio: criminal law is the last resort, to be employed only when other legal sanctions are insufficient to protect legal interests.
Defences and Justifications
The StGB provides a comprehensive system of defences. Self-defence (Notwehr) under section 32 StGB permits the use of force necessary to repel an imminent unlawful attack, with no requirement of proportionality between the attack and the defensive action — a distinctive feature of German law. Necessity distinguishes between justified necessity (rechtfertigender Notstand, section 34 StGB), where conflicting legal interests are balanced, and excused necessity (entschuldigender Notstand, section 35 StGB), where the actor is excused due to duress. Mistake of fact (Tatbestandsirrtum) excludes intention under section 16 StGB, while mistake of law (Verbotsirrtum) may reduce or exclude culpability depending on avoidability under section 17 StGB. The system of defences reflects the StGB’s integration of culpability principles and the constitutional requirement that punishment be proportionate to personal responsibility.
Sanctions System
The StGB establishes a graduated system of sanctions. Custodial sentences (Freiheitsstrafe) range from one month to fifteen years, with life imprisonment (lebenslange Freiheitsstrafe) available for the most serious offences including murder, genocide, and crimes against humanity. Fines (Geldstrafe) are calculated on a daily-rate system (Tagessatzsystem) proportionate to the offender’s net daily income, ensuring equal impact across different income levels. The minimum is five daily rates, and the maximum is 360 daily rates (720 for cumulative offences). The StGB provides for suspended sentences (Strafaussetzung zur Bewährung) for custodial sentences up to two years, allowing the court to suspend the sentence and place the offender on probation with conditions. Security measures (Maßregeln der Besserung und Sicherung) including preventive detention (Sicherungsverwahrung), psychiatric commitment, and professional prohibitions address dangerous offenders who may not be fully culpable. The system of sanctions reflects the dual-track approach of German criminal law, combining punishment with measures of rehabilitation and incapacitation.