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Overuse in the Criminal Justice System in Germany
- from PART III - NATIONAL REPORTS 3ÈME PARTIE. RAPPORTS NATIONAUX
- Edited by Piet Hein van Kempen, Manon Jendly
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- Book:
- Overuse in the Criminal Justice System
- Published by:
- Intersentia
- Published online:
- 26 June 2019
- Print publication:
- 14 May 2019, pp 333-362
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- Chapter
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Summary
INTRODUCTION
In 2016, the case of the satirist Jan Böhmermann has opened a lively public controversy on criminalization, concerning the rarely used offence “defamation of organs and representatives of foreign states” according to section 103 German Criminal Code. In his television broadcast Jan Böhmermann read a satirical poem under the title “abusive criticism” on the Turkish State president Recep Tayyip Erdoğan. The government of Turkey as well as the State president reported to the Criminal Investigation Department or to the Public Prosecution Office and the German Chancellor Angela Merkel gave authorization to the prosecution (sec. § 104a German Criminal Code). Hence, the views on this subject have been divided, strong support has been shown for the abolition of this ‘majesty’ offence. Even the German Chancellor announced a bill of the German government to abolish section 103 German Criminal Code. Despite this special offence and this special case, the overuse of criminalization appears more significant concerning minor volume offences, like shoplifting and non-payment of fare. Recently, violations of laws applying to foreigners also gain importance, because of the migration of refugees.
OVERUSE OF CRIMINALIZATION
Criminalization is often connected with principles and moral values that change over times. This applies, in particular, to offences against sexual selfdetermination. Nowadays, a liberal understanding of sexual morals dominates and experiences its limits in socially damaging cases in order to ensure sexual intercourse without force. Well-known examples of this change in moral values are the decriminalization of the homosexual orientation of men at the age of 21 years and the abolition of adultery in 1969. In contrast to this, male exhibitionism is still punishable according to sec. 183, paragraph 1 German Criminal Code. Against the backdrop of empirical findings the threat posed by male exposure is questionable.
Though prostitution usually is not criminalized, an exception is unlawful prostitution in section 184f German Criminal Code. The offence refers to prostitutes who persistently contravene a prohibition enacted by ordinance against engaging in prostitution in particular places at all or during particular times of the day. The Federal Constitutional Court rejected a violation against the principle of clarity in law according to Article 103, paragraph 2 German Basic Law and upheld the statute as constitutional.
Women in prison in Germany
- from Part III - National Reports: 3ÈME Partie Rapports Nationaux
- Edited by Piet Hein van Kempen, Maartje Krabbe
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- Book:
- Women in Prison
- Published by:
- Intersentia
- Published online:
- 25 September 2018
- Print publication:
- 20 March 2017, pp 373-416
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Summary
INTRODUCTION
On 31 March 2013, 3,184 women and 53,378 men were imprisoned in Germany. With a share of 5.6%, female prisoners form a minority of the total prison population and have, accordingly, garnered little attention in practice and research in previous decades. However, from the beginning of the 21st century onwards, (inter)national research on female prisoners has steadily grown, as has interest in the implementation of international and European prison recommendations on female inmates.
Although recommendations have no legally binding character, their legal effect should not be underestimated. In a landmark decision, the Federal Constitutional Court of Germany emphasized the importance of international rules in a case concerning the unconstitutionality of the youth custody law on 31 May 2006:
“Indications can be found that available findings have not been taken into consideration sufficiently as required under the Basic Law or that prisoners’ concerns are not being given adequate weight when requirements under international law or international standards referring to human rights, as set out in the relevant directives and recommendations adopted by the United Nations or organs of the Council of Europe have not been observed or they fall short of them”.
While the German federal states (Bundesländer) responded by passing new constitutional youth custody laws, as required by the Federal Constitutional Court, by the end of 2007, the decision of the Court had far-reaching relevance for the whole law of prison administration. Due to federal reforms in 2006, the individual German states are now responsible for their own prison laws. This reform has led to an on-going process: at present, 11 out of 16 German states have enacted their own prison laws. That is why the prison laws of the German states differ to a certain extent from the Federal Prison Act nowadays. One example of this relates to the accommodation of women apart from men in separate prisons, in section 140 paragraph 2 of the Federal Prison Act. In contrast to this provision and Rule 56 of the Bangkok Rules, Article 166 paragraph 2 of the Bavarian prison law takes a more relaxed approach to the accommodation of female prisoners, in separate departments of male prisons. Due to the confusing diversity of different prison laws, the following chapter will mainly consider the provisions of the Federal Prison Act, which is still in force in six German states.