Continued from Lost in Translation: Coercion and Extortion (Part 1/2)

D. Elements of extortion

As already mentioned in part 1, extortion acc. to s. 253(1) StGB is essentially a qualified form of coercion intended to protect the victim’s assets, in addition to their ability to freely come to a decision and act accordingly (as protected by s. 240). If performed via force against a person or threats of bodily harm or death, i.e. the same means as a robbery (s. 249), s. 255 accordingly threatens the same punishment as s. 249.

One’s wealth has taken damage if, due to the extortion, it is – as a whole – diminished, taking into account a possible influx of assets as well. If the victim’s assets have been reduced on balance, then they have suffered damage. This requirement is much less problematic in the context of an openly coercive act than it is as part of the offence of fraud (s. 263). In cases where the victim is forced to buy back an object taken from him by the perpetrator, or pay ransom, the desired return is not considered a performance balancing out any of the payments made.

The much more controversial aspect related to the elements of s. 253 (but mostly relevant in the context of s. 255) is that of a disposal over assets (Vermögensverfügung) as an intermediary success inbetween the coercive act and the damage (Vermögensschaden). The view taken by scholarship is that such a free and wilful disposal by the victim is necessary in order to distinguish between, as a matter of speaking, self-harming offences like fraud and extortion on one hand and offences such as theft and robbery on the other, particularly in cases where the possession of objects is at stake.

Meanwhile, the responsible courts are of the opinion that no restriction to the plain wording of s. 253 is necessary. Every coercive act, even one that does not leave any agency to the victim (absolute force or vis absoluta) could constitute extortion and thus be equivocated with a robbery under the conditions of s. 255. The judicial view is thus that any robbery also represents an extortion while most scholars define extortion and robbery as elementally exclusive offences. For the purposes of the verdict, the courts assume that any situation where it appears like an object is being handed over (not being taken) should be sentenced as a case of extortion.

The scholarly view, on the other hand, considers this extensive reading of ss. 253, 255 as contrary to the internal chronology of these offences and especially the intentionally fragmented nature of German wealth delicts. A loss of wealth covered by ss. 253, 255 has to be voluntary – in the context of extortion, in a wider sense. Hence, the victim must consider themselves to be in a key position for the perpetrator to reach their goals, e.g. by handing over the keys to to a safe or register.

E. Extortion akin to robbery

S. 255 states that whoever commits extortion by using force against a person or threats of present danger to life or limb “incurs the same penalty“ as a robber. This reference does not exhaust itself in the sentencing of s. 249 (at keast one year) but also extends to the qualifications laid down in ss. 250, 251 – aggravated robbery and robbery resulting in death.

Another peculiarity of s. 255 is that – like with most other offences but unlike ss. 240 and 253 – the illegality of the deed is indicated by the elements being fulfilled and does not need to be positively demonstrated. These elements will be explained in a future instalment covering robbery.

The post Lost in Translation: Coercion and Extortion (Part 2/2) first appeared on Heine Law Review.

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A. Introduction

In German criminal law, coercion (Nötigung) is an offence defined in s. 240(1) of the Criminal Code (StGB) as the unlawful compulsion of another person to a certain active or inactive behaviour, by force or threat of serious harm. S. 240 is thus a very broad and, accordingly, often disputed provision, constituting a sort of general clause for punishing the illegal exertion of pressure.

On the other hand, s. 253 contains the offence of extortion (Erpressung) as a crime against property in a wider sense, or wealth (Vermögen). S. 253(1) defines extortion essentially as coercion with the result of damaging another person’s assets.

S. 253 is sandwiched inbetween offences related to robbery (ss. 249-252) and extortion qualified by the use of force or threats of force (s. 255). The latter offence is in this sense doubly qualified; being a coercive act resulting in a loss of wealth as well as being committed in a robber-like fashion (räuberische Erpressung).

B. Elements of coercion

S. 240 demands that a certain means of coercion is employed and that this successfully leads to the victim behaving as it is meant to. Whereas the required success of s. 240 is therefore highly indefinite, the aforementioned means are in turn necessarily enumerated restrictively.

This is relatively straightforward as far as the latter variant is concerned, threats being defined as the explicit or implicit promise of an evil due to happen – owing to the offender’s influence – unless the victim behaves as it is told. However, what constitutes the former variant – violence or force – has historically been and continues to be much less averse to extensive interpretation.

While some parties are presently trying to equate psychological pressure and physical violence in public discourse, past prosecutors and judges have already attempted the same: In the 70s and 80s, mere mental pressure was indeed recognized as “force“ as long as it was caused by some physical activity. In 1995, the Federal Constitutional Court (BVerfG) condemned this practice as an unconstitutional encroachment on the plain wording of the Criminal Code. Ever since, “force“ is limited to compulsion that is both exerted and effective physically. Hence, the criminalization of sit-in protests had to take a more creative route.

The sit-in does not pose a physical threat neither e.g. to a lorry or a truck, nor to most cars; i.e. the protestors do not employ force against the first vehicle in line. However, jurisprudence circumvents this by posing that the first vehicle’s driver is physically coercing the second driver (and so on) by locking them in place. The drivers are justified in doing so, hypothetically committing a crime if they drove further (justificatory necessity). The protestors can be held accountable as indirect offenders (mittelbare Täter).

C. Unlawfulness

As per s. 240(1), the coercion is not punishable if it is not unlawful. Unlike in other criminal provisions, this is not a mere reference to the general requirement of illegality. The unlawfulness of the act in question is not presumed in the absence of justificatory defences, but must be positively demonstrated.

S. 240(2) states that the act is unlawful if the use of force of the threat is deemed reprehensible in respect of the desired objective. S. 253(2) serves the same function for extortion. S. 255 lacks the requirement of unlawfulness altogether, as the qualified means of extortion are considered illegal per se.

Ss. 240(2) and 253(2) require that the act in question is sufficiently intolerable to warrant criminal prosecution. That reprehensibility may stem either from (1) the means alone, or (2) the purpose alone, or (3) the relation between means and purpose. The purpose of the coercion is constituted by the immediate result, not more remote goals (such as environmental protection).The third option demands an open-ended weighing between the means and purposes. Important factors are, among others, the non-insignificant extent of the coercive act, the legality of the purpose, the self-responsibility of the coerced, and the inner connection between a threat and the promised success.

The post Lost in Translation: Coercion and Extortion (Part 1/2) first appeared on Heine Law Review.

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A. Introduction

In previous instalments of “Lost in Translation”, we covered the basics concerning fundamental rights under the German constitution (GG).

In march 2021, the Federal Constitutional Court (BVerfG) issued its monumental “climate change decision” (Klimaschutzbeschluss), containing instrumental passages on various human rights aspect related to the climate. Among these were…

• whether the right to human dignity might play a role
• under which conditions the state has the duty to protect health and property against climate change
• how the idea of negative rights may be defended in an intertemporal or intergenerational manner.

B. Protective duties

Public authorities in Germany are obliged to actively protect certain constitutional goods, including several rights held by the individual. Among these are the right to human dignity acc. to Art. 1(1), the right to life and physical integrity as per Art. 2(1), as well as property rights (Art. 14). The Court clarifies that they also apply in principle to people residing abroad.

Claiming that the state has breached its duty to protect human dignity is obviously the heftiest accusation. However, the complainants in the 2021 case did not convince the Court, even when making reference to the “social minimum of existence” recognised as guaranteed by Art. 1(1) in conjunction with the welfare state principle in Art. 20(1).

Emitting greenhouse gases – including, of course, the private sector – directly leads to the rise in average temperature that is threatening individual health, the production of food, property close to bodies of water, etc. That being said, the Court limits the dignity guarantee to protection against future states of affairs bordering on the apocalyptic. Below that treshold, the aforementioned lower-tier protective duties apply.

In any case, the standard of review as regards protective duties is limited to evidently unsuited or substantially insufficient measures. Under these standards, the Court does not find the actions Germany has taken to reduce emissions and mitigate already materialising effects of climate change to be lacking.

C. Right to climate protection

Meanwhile, the Court infers from the explicit duty to protect the natural foundations of life (Art. 20a) not only a duty to protect the climate but specifically to reach climate neutrality. Moreover, it does not accept the argument that unilateral reduction measures are inefficient unless combined with other countries’ efforts.

Perhaps even more controversially, the Court equivocates the duty emanating from Art. 20a GG with the Paris climate goals referenced by the domestic Climate Protection Act (KSG). This results in the legislature being bound to certain carbon dioxide budgets, which may be calculated based e.g. on relative population size or historic responsibilities.

Unsurprisingly, this result has provoked criticism. The Court specifies an inconcrete but binding constitutional provision with a subconstitutional law referring to another, still somewhat abstract provision in international law. It justifies this approach with reference to how essential the international trust in Germany’s adherence to the climate goals is for climate protection as a whole.

Art. 20a thus plays an important part in filling with meaning the state’s protective duties and its authority to restrict people’s freedom to emit greenhouse gases. Nevertheless, Art. 20a GG is decidedly not a subjective right. Unwilling to revise its dogma on the scope of protective duties, the Court had to resort to different means in order to empower the complainants.

D. Intertemporal freedom

What the Court came up with next is without a doubt the most controversial part of the decision. The BVerfG poses that the irreversible nature of greenhouse gas emissions (translated into the expenditure of the national carbon dioxide budget) necessarily results in heavier restrictions on the exercise of fundamental freedoms in the future. It is up to the legislature to equitably distribute these “freedom chances“ between present and future or, as some would interpret it, between present and future generations.

Consequently, the latent danger of extensive (if justified) restrictions on any number of constitutional freedoms is itself justified only if the legislature conforms to the demands of Art. 20a and to the principle of proportionality. The legislator is required to initiate the transformation towards climate neutrality in time and transparently. Any German resident may file a constitutional complaint presently and individually if these requirements are not met.

This way, the Court arrives at the conclusion that parts of the Climate Protection Act authorising the federal government to fix certain climate goals left too much discretion to the executive. Indeed, the political consequences of the verdict were much greater, even resulting in a legislative overshoot.

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D. Aggravated theft

S. 243 StGB states that the penalty for theft is increased from up to five years to anywhere inbetween three months and five years in especially serious cases. This requires that a general assessment of the entire situation surrounding the deed proves it sufficiently exceeds the weight of the average offence in question.

More importantly, s. 243(1) sent. 2 provides a list of non-exhaustive typified examples (Regelbeispiele). Whenever those are applicable, the case is – in principle – serious enough. The examples mentioned are:

E. Qualified theft

Unlike s. 243, ss. 244 and 244a StGB enumerate situations in which the sentence is necessarily exacerbated due to the presence of qualifying elements. They are not subject to a weighing of interests, and attempts at fulfilling them is subject to punishment according to general principles.

Not treated here are robberies pursuant so ss. 249 to 251 StGB. A robbery is a theft committed by use of force or threats. Qualified cases of robbery (s. 250) closely mirror the qualifications of theft.

One of the most notorious interpretational issues surrounding theft is the meaning of a dangerous implement in the sense of s. 244(1) no. 1a or s. 250(1) no. 1a StGB. The legislature intended it to be identical to its use in the context of dangerous bodily harm – s. 224(1) no. 2 StGB. However, in the context of theft and robbery, the qualification depends not on the use of the tool but on merely carrying it. Accordingly, it is disputed between courts and scholars whether dangerous implements need to be similar to weaponry in their threat level or their intended purpose. While the judiciary prefers the generalized interpretation paralleling s. 224, scholars are divided between objective and purely subjective functionality.

S. 244(1) no. 2 and s. 244a concern stealing as part of a gang (Bande). A gang is any coalition of at least 3 persons for the wilful purpose of committing a multitude of as of yet unspecified thefts or robberies over a certain time period. The qualified theft must be committed as part of a gang and with participation (of any nature) by at least one other member. Under these conditions, the penalty increases to 6 months to 10 years. A burglary or armed theft committed as part of a gang even carries a sentence of 1-10 years (s. 244a).

F. Misappropriation

As covered in Part I, “theft” by definition requires the tranfer of custody without the previous custodian’s consent, but with the intent to appropriate the object. S. 246 StGB serves as a – somewhat complicated – alternative, which demands neither a break in custody nor the direct intent. Rather, the appropriation of another’s moveable property forms part of the actus reus, i.e. it constitutes an objective element.

It is disputed between judges and scholars whether appropriation should be taken as a purely objective process, or as the manifestation of the intent in the sense of ss. 242 ff. Prevailing opinion prefers a narrow interpretation, demanding an unequivocal demonstration of said intent. Recently, the Federal Court of Justice (BFH) has departed from this view, citing the phrasing of s. 246 and the autonomy of criminal law terminology. In their opinion, s. 246 requires no more than relieving someone of their property and acquiring it themselves, in fact.

It is also controversial whether appropriation can be repeated by the same offender without having lost custody. The judiciary denies that the elements of s. 246(1) are satisfied in this case, while scholars prefer that the offender be punished only for the first of these competing misappropriations.

The post Lost in Translation: Theft (Part 2/2) first appeared on Heine Law Review.

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A. Introduction

In German law, just like in English or American law, the criminal offence of theft describes a very specific deed much narrower in scope than the everyday use of the word may imply.

Section 242: Theft

(1) Whoever takes movable property belonging to another away from another with the intent of unlawfully appropriating it for themselves or a third party incurs a penalty of imprisonment for a term not exceeding five years or a fine.

Theft must therefore be distinguished from other crimes against another person’s property or wealth, such as property damage (s. 303), but especially mere misappropriation (s. 246), joyrides (s. 248b), or fraud (s. 263). We will do so in analysing the various elements of s. 242 StGB.

Additional issues arise whenever force or threats are employed, so that the theft may qualify as a robbery acc. to s. 249.

B. Actus reus

The offender must have taken away moveable property belonging to another. This includes any “thing”, as defined by civil law, excluding incorporeal objects (cf. s. 90 BGB) but including animals (cf. s. 90a BGB). For electricity, there is the separate offence of s. 248c StGB.

S. 242 serves to protect not just the right or title to property, but also the mere possession of or custody over it. Thus, although the object must be legally owned by at least one other person, it does not have to be in the possession of its legal owner at the time of the offence.

The concept of custody over the property is central to what constitutes it being taken away. At the time the offence is committed, someone other than the offender must had factual control over the object, according to accepted standards.

The “thief” must not have had sole or overriding custody. For example, the owner of a shop cannot steal inventory from his own employees, whereas a cashier may exert custody even against their immediate superiors if they are transferred exclusive responsibility for their cash register.

The thief must have broken another’s custody and established it anew. Furthermore, this must have taken place without or against the will of the victim. Consent functions not as a defence but as an integral (negative) element of the offence. It is on this level that theft and robbery on one hand are distinguished from fraud and extortion on the other.

It is immaterial whether consent to the surrender has been achieved using fraudulent methods. What is decisive is whether consent given by a third party can be attributed to the custodian because they are in fact much closer to the property than a random stranger would (being “in the camp“ of the custodian.)

C. Mens rea

In addition to acting intentionally more generally (s. 15), the thief must also have acted “with the intent of unlawfully appropriating it for themselves or a third party”. Even though appropriation is not an objective element of s. 242 (unlike s. 246), it nevertheless forms a special component of the mens rea.

The thief must act in order to wilfully acquire the property for themselves while at least being in consideration of the fact that they thereby disappropriate the previous owner. The less strict requirements for the latter part reflect that thieves mostly act egotistically but with the primary intent to enrich themselves, not damage others.

The process of appropriation is a factual, not a legal one. Not possessing good faith, the thief may not legally acquire a property title by way of usucaption (s. 937 BGB). The thief instead appropriates the thing by acting like its owner, in place of the real one.

Acquisition and disappropriation may relate either to the thing itself in its substance or to its intrinsic value. Thus, the thief may appropriate the value of a savings book by drawing money from it. The thief may also appropriate an object itself by reselling it, even to its original owner as long as this fact is not disclosed.

On the other hand, merely damaging or destroying something does not qualify as an appropriation. An exception applies if the object is used or used up as intended, especially if food or drink is consumed. Immediately disposing of something after having taken it away does not qualify either.

Lastly, something is not being stolen if – from the very beginning – the offender intended to return it shortly without any meaningful changes in value, or let the previous owner themselves repossess it without substantial effort.

The post Lost in Translation: Theft (Part 1/2) first appeared on Heine Law Review.

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C. Apparent authority

As aforementioned, the power of the agent to represent the principal may derive from statute, from the status of an organ, or from a declaration of authorisation by the principal. In addition, it is sometimes sufficient if the third party merely assumed that the agent had been authorised. Common to all the different forms of apparent authority is that the third party must have positively believed in the agent’s authority, with sufficient cause to assume it in good faith, with regard for general custom.

For one, authority is apparent if the principal is cognisant of the principal’s conduct and nevertheless does not prevent them from acting in their name. This authority by acquiescence does not require multiple occurences of such behaviour.

Apparent authority by way of mere appearance is granted without the principal’s knowledge if they could have prevented the agent from acting for them for some time or with a certain regularity. The question what exactly suffices to constitute authority by appearance can be quite difficult to answer. Evidently, someone who seems to be charged with a certain task can be assumed to carry the necessary authority as far as legal transactions are concerned. This principle is indicated in s. 56 of the Commercial Code (HGB) for shop employees. Among other things, the German Federal Court (BGH) has also affirmed such prima facie liability for the negligent surrender of an eBay-account.

D. Agent without authority

Needless to say, a transaction conducted by an agent without any actual or apparent authority (Vertreter ohne Vertretungsmacht or falsus procurator) does not entitle or oblige the principal to anything. This is the uniform consequence of a lack of authority, whether it is generally lacking or whether it has been exceeded in the individual case.

One-sided transactions are, in principle, null and void (s. 180). On the other hand, two-sided ones, especially including contracts, are transitionally ineffective until affirmed or rejected by the principal (s. 177).

If the principal refuses to ratify and the contract is thus definitely voided, the third party may claim damages from the agent as per s. 179(1). S. 179(3) hinders the claim if the contracting party knew or should have known about the lack of authority, or if a minor agent acted without their parents’ approval. The agent owes either the discharge of the contract, or a sum of money equal to the third party’s in the fulfilment of the contract. If the agent did not know of their lack of authority, s. 179(2) reduces the damages to the level of the negative interest, capped by the aforementioned positive interest.

The agent may also owe damages to the principal acc. to the general rule of s. 280(1) if there was a preexisting contractual or pre-contractual relationship between the two.

The same generally does not hold true as far as the third party is concerned. Due to solely representing the principal, the agent is themselves not engaged in such a pre-contractual relationship with the contracting partner. Exceptions apply in cases where the third party places a special personal trust in them.

The consequences of s. 179 may be considered inappropriately harsh if the lack of authority stems from it being rescinded per ss. 119 ff. Acc. to s. 142(1), the rescission works retroactively. The prevailing view nevertheless allows for a rescission but grants the claim of the rescindee against the rescinder as per s. 122 to the third party even if the authority was not originally granted by declaration to the third party but to the agent themselves (Innenvollmacht). Otherwise, the contracting party would lack such a direct claim.

The post Lost in Translation: Agency and authority (Part 2/2) first appeared on Heine Law Review.

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A. Basic principles

The German Civil Code (BGB) also includes in its codification the mechanism of one person (the agent) legally representing another (the principal). The general part of the BGB, in dealing with the fundamentals of declarations of will and legal transactions, regulates how the agent exercises their authority with legal effect for and against the principal, and also what the effects of supposed agency without real authority are.

The necessary authority is granted either by law or by a declaration of the principal. Statutory authority also includes the authority granted to the representative organs of corporate bodies or societies, such as partners in partnerships or directors of LLCs.

Ss. 166 ff. BGB deal with authorisation by the agent themselves. The authorisation may be granted in isolation, or in the context of an entire contractual relationship with the agent. Neverheless, the authorisation and the underlying contractual relationship (Grundverhältnis) are considered completely separate legal transactions. Their validity is therefore also to be evaluated separately (Trennungs- und Abstraktionsprinzip or abstraction principle). However, the authority does, in principle, expire as per s. 168 not just if it itself is revoked but also if the Grundverhältnis expires. This is subject to various exceptions based on the idea of estoppel.

B. Elements of agency

Acc. to s. 164(1) s, 1 BGB, a transaction is validly entered into by the principal via the agent if (1) the necessary declaration of will is emitted by the agent (2) in the name of the principal and (3) within the scope of their aurhority.

Firstly, a declaration must have been made by the agent themselves, not formulated by the principal and merely transmitted by a messenger or envoy.

Secondly, the agent must transparently act in the name of the principal. However, as provided for in s. 164(1) s. 2, “[i]t is irrelevant whether the declaration is made explicitly in the name of the principal, or whether it may be gathered from the circumstances that it is intended to be [so.]” The latter applies especially if a contract is concluded e.g. within the premises of a company. The agent also acts “in the name of“ the principal without disclosing their specific identity if the third party simply does not care about learning it.

Similarly, a real exception to the principle of patency is recognised in cases where the third party objectively has no legitimate interest in the identity of the principal, e.g. everyday cash transactions.

If someone is acting under a false name, it depends on the circumstances of the individual case whether they are acting for themselves or for the true bearer of the name. If the identity of the contracting partner is of relevance to the third party, ss. 164 ff. (and especially ss. 177 ff.) thus apply analogously.

Lastly, the agent must have moved within the confines of authority granted to them by the law or by the principal. These inherent limits must first and foremost be drawn from interpreting the statute or the authorisation.

Even so, s. 181 (Insichgeschäft) stipulates that the agent may not conclude an agreement on behalf of the principal with himself personally (self-contracing/Selbstkontrahieren) or representing a third party (plural agency/Mehrfachvertretung), unless doing so in order to fulfil an existing obligation.

Even beyond s. 181, the agreement concluded by the agent is rendered null and void as immoral (s. 138) if the agent colluded with the third party. The same result ultimately occurs if, although the agent did not overstep their external authority, the third party knew that they were still violating limitations set internally by the principal.

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D. Rights of equality

The German Constitution grants not just freedoms but also posits certain regards in which persons must be treated as equals. In addition to the general right of equality before the law in Art. 3(1), there are also various specific guarantees of equality concerning discrimination on grounds of sex, race, origin, creed, political conviction, or disability. Several other guarantees are sprinkled throughout, e.g. as regards illegitimate children in Art. 6(5), equal access to public office in Art. 33, or equal voting rights in Art. 38(1). Art. 21(1) serves the same function for political parties as Art. 38(1) s. 1 does for their voters.

As it was with liberties, all rights of equality mostly function according to the same overall scheme. One difference is that Art. 3(1), as a catch-all provision, offers a lower standard of protection compared to prohibitions of discrimination on specific grounds. The latter also include indirect or hidden discriminations.

Since Art. 1(3) clarifies that all public authority is bound by “the following basic rights“, the Weimar-era dispute as to what “equality before the law” entails has ultimately been resolved. Equality before the law denotes both equal application of the law and equal legislation. Therefore, the precept of Art. 3(1) may be summarised thusly: Public authority must treat essentially equal situations equally but also, conversely, essentially unequal situations inequally. More specifically, the same autonomous body (the federation, the states, the municipalities etc.) must grant the same legally licit treatment in every comparable case, or else justify the unequal conduct unless it is inherent in the constitution itself (such as the draft applying only to men).

Justification requires, in principle, merely a factual reason. However, if the unequal treatment is related to personal attributes or the exercise of constitutional liberties, the threshold shifts closer and closer to one of strict proportionality.

In practice, Art. 3(1) serves as the basis for derivative participatory rights in conjunction with freedom rights or administrative conduct in fundamentally equal cases (see last week’s instalment). Moreover, Art. 3(1) as applied to the legislature is also said to function as the magna carta of German tax law, ensuring taxation is equitably tied to performance.

E. Private parties

Due to their enjoyment of civil and economic liberties, private parties are generally not bound to respect fellow persons’ freedoms or claims to equal treatment as the state is. Where necessary and proper, the legislature passes laws in observance of their protective duties, but these also have to respect the rights of third parties. The only written exception to this principle: Art. 9(2) s. 2 renders void any agreement seeking to impair the right to form unions, including private ones.

However, even in civil trials, a judicial decision that does not take into due consideration the claimant’s or defendant’s basic rights may constitute an infringement. The basic rights enumerated in the Grundgesetz represent an order of objective values. By way of these protective duties, jurisprudence thus constructs indirect third-party effects of fundamental rights. These come in handy whenever one has to discern e.g. if a contract clause is immoral or in breach of trust.

The post Lost in Translation: How do basic rights work? (Part 2/2) first appeared on Heine Law Review.

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A. Introduction

After its enactment in 1949, Germany’s post-war constitution and its interpretation ultimately set a new standard for the protection of individual rights. This is true not just as concerns the quality of protection itself, but also due to the clarity of what was being granted, and the highly sophisticated dogma that would eventually develop.

Art. 1(3): The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.

The overall explanation in Art. 1(3) still demands some specification. How exactly do the fundamental rights in Arts. 1-19 GG limit state authorities, or determine the use of their powers? How do they affect relationships between private parties? How does one invoke them in court?

B. Negative rights

First and foremost, the rights enumerated in Arts. 1 ff. (except for the rights of equality in Art. 3) serve as negative rights, i.e. as protection against active state intervention in one’s conduct. Just see how Art. 2(2) s. 1 targets bodily threats or how Art. 2(2) s. 2 and Art. 104 restate habeas corpus while Art. 13 essentially contains the castle doctrine.

The negative dimension of freedom rights also refers to how the right not to do something is equally protected, e.g. to have a religious faith or to have none.

Now let’s look at how negative rights work in practice. Some rights guarantees provide that they may be interfered with (only) by or due to a law. However, this does not conversely mean that guarantees lacking such reservations may never or always be interfered with. Instead, any encroachment on fundamental rights requires a legal basis. Combine this with the fact that jurisprudence extends the general right of personality in Art. 2(1) to a general freedom of action, and you arrive at the principle that “everything which is not forbidden is allowed”!

When Art. 2(1) declares that one’s freedom reaches as far “as he does not violate the rights of others or offend against the constitutional order or the moral law”, the “constitutional order” refers not to the constitution itself but any law that conforms to it. Jurisprudence has also reduced the role of the “moral law“ and the “rights of others” if not regulated by law.

Acc. to Art. 1(3), basic and human rights bind not just the executive but also the legislature. Hence, interferences require both an enabling law and one that itself conforms to basic rights, or the constitution as a whole.

C. Positive rights

The opposite of negative rights are positive rights. The positive dimension of basic rights is double-barreled, as it encompasses both claims to certain goods or services, claims to participate e.g. in elections or petitions, and due process guarantees.

Claims to positive action by the authorities firstly include the state’s protective duties. As illustrated in previous editions, these are prominent e.g. in relation to human dignity, human life and bodily integrity.

The more contentious issue, however, is to what extent otherwise negative rights entitle to benefits, especially money payments. It is generally recognized that such entitlements cannot be derived from freedom rights in and of themselves. Still, these claims may be founded on so-called derivative participatory rights wherever benefits are granted to other persons. Dogmatically, these are based on the relevant freedom in conjunction with the right to equality before the law.

The post Lost in Translation: How do basic rights work? (Part 1/2) first appeared on Heine Law Review.

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A. Introduction

S. 32 of the German Criminal Code may be considered unusually straightforward as far as the German approach to conflicts of interest is concerned:

[Section 32 – Self-defence]

(1) Whoever commits an act in self-defence does not act unlawfully.

(2) ‘Self-defence’ means any defensive action which is necessary to avert a present unlawful attack on oneself or another.

S. 32 is a justificatory defence which legalizes all acts which would otherwise be criminal, provided they are necessary to defend against a present unlawful attack.

The decisive difference as opposed to any other state of necessity covered by s. 34 is that there is no weighing of interests. The “sharp sword“ of s. 32 depends, in principle, solely on what constitutes an attack and what is considered necessary.

B. Defensive situation

An attack is any immediate threat to legally protected interests of the perpetrator or another person through human behaviour. The attack must be illegal, i.e. not justified in turn. Conversely, the attack may be intentional or negligent, active or due to illicit passivity, culpable or inculpable etc.

Among these defensible interests are all recognized legal goods of the individual such as life, health, liberty, and property. Self-defence does not apply if exclusively public or state interests are affected, preventing cases of blatant vigilantism.

The defensive situation is objective, i.e. merely feeling threatened does not constitute self-defence.

The attack is present and s. 32 therefore applicable once it is happening or immediately imminent. During the run-up, s. 34 should suffice as justification.

Mistakenly assuming a defensive situation ultimately excludes intent but might result in negligence.

C. Defensive act

Once a present unlawful attack is at hand, the perpetrator is justified in any necessary intrusion on the rights of the attacker. Outside of the bounds of s. 32 are infringements on the rights of third parties or the commonwealth, e.g. threatening public safety by an illicit use of firearms. Public law limitations on the use of force do not necessarily curtail the right of officials to defend themselves or other persons, although they may be held accountable by their superiors.

The defensive act is necessary if it is suited to end or at least weaken or delay the attack, and if it is the most promising of all equally suitable (available) means.

One of the fundamental principles of German self-defence law is that the law-abdiding citizen must not yield to the attacker’s iniquity. Accordingly, one principly does not have to dodge the attack or resort to milder means. There are several exceptions to the aforementioned rule, related to especially severe means or ethically necessary limitations. Most prominently, one has to warn the attacker before shooting or stabbing him, if not futile. Other examples of this principle apply to inculpable attackers, such as children, or (controversially) attacks within close personal relationships. The same is true if the defender has negligently provoked the attack, whereas intentional provocations exclude self-defence altogether.

Lastly, the defender must have acted both with knowledge of the situation, and the will to defend themselves or others. The defensive will must not be subservient to other motivations. In case that will should be lacking, the “defender” may be liable for an attempted offence.

If the defender has exceeded the boundaries of self-defence out of confusion or fear, at least with regards to the intensity of the defensive act, their excess is exculpated per s. 33.

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