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.

Transcript

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.

Transcript

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.

The post Lost in Translation: Basic Rights – Climate Change first appeared on Heine Law Review.