False accusation
The false accusation (or: Falschverdächtigung ) is a Ehrdelikt pursuant to § 164 of the German Criminal Code. Comparable offenses other name is also available in Austria and Switzerland.
False suspicion in Germany
Wording
The penal provision literally reads:
§ 164 false suspicion
(1) Whoever with another as an authority or competent to accept advertisements official or military superiors or publicly against better knowledge of an unlawful act or breach of an official duty with the intention of suspects, bring or continue an administrative procedure or other official action against him permit, shall be punished with imprisonment up to five years or a fine.
(2) is also imposed on anyone who at one of the designated in paragraph 1 or publicly on another, against his better knowledge any other statement of fact sets up in the same intention, which is likely to bring or continue an administrative procedure or other official action against him to leave.
Legal interest
These criminal provisions protecting the legal interests prevailing opinion both first, the administration of justice and law enforcement institutions against unnecessary utilization and secondly, the individual ( suspected ) person from prosecution measures that could make it unjustified. In the literature, however, were represented views, according to which only one of these two directions protection was intended (so-called theory of justice or individual rights theory).
From the former opinion is mostly closed, that the person who is suspected of wrong, could not agree punitive liberating, since it is sufficient for culpability, even if only one of the two protective purposes ( here: the administration of justice ) would be affected (so-called Alternativitätstheorie ).
Objective fact
One can only suspect a "different " wrong according to the wording of the law. Activities that bring the perpetrators themselves under suspicion could be punishable at most as faking an offense ( § 145d StGB)., False 'is a suspicion, if it is objectively not true. If the suspicion alone subjectively untrue, but objectively true, this leads to impunity, as the trial of this offense is not punishable. In order to fulfill the elements, it is necessary that the displayed / suspected behavior, at least, ' is sufficiently specific and suitable to reveal a specific offender.
Suspects: § 164 paragraph 1
A suspicion within the meaning of paragraph 1 may be done through claiming false facts; but also any other behavior that causes a false suspicion or reinforced enough. However, the offense fulfill not the mere voicing of suspicions (eg I do not trust Mr. Meyer such a deed to or the description of the perpetrator fits on Mrs. Muller or The act has probably Mr. Schneider committed because he is a professional truck drivers and indeed even of the researchers are the police after a truck driver ) or incorrect conclusions from correct factual allegations. There is a common misconception among the population, according to which one would make the false accusation offense to a suspicion against eg the police and expresses this suspicion is not then hardens (see below for factual precondition against better knowledge Subjective facts in the section ). For the offense from paragraph 1, the suspect indeed beyond an unlawful act within the meaning of § 11 Section 1 Subsection 5 of the Criminal Code ( " offense" in the broader sense ), or a service wrongful act must be. Therefore, offenses are, for example, does not cover. Furthermore, the accusation against an authority or any of the said officers or the public must be made. The authorities term it not only extends only to the boundaries of the Federal Republic of Germany, so that the Falschverdächtigung before foreign authorities can realize the offense.
Putting up claims: § 164 paragraph 2
Paragraph 2 ( communicative, such as oral or written) only by the specific criminal act of erecting an "other [n ] assertion of fact " are perpetrated. Contrary to paragraph 1 here not merely eliciting a suspicion (such as through manipulation of evidence ) is punishable. It is referred to in paragraph 2, however, not necessary that the suspicion of a criminal offense or misconduct against the other is caused, but it is sufficient that the claim " is likely to bring about an administrative procedure or other official action against him or to let continue". In the event an alternative to paragraph 2 is also provided in addition to the criminal act to the authorities referred to in paragraph 1, the 'public' Pretend offense. In this respect, it is sufficient for a false suspicion referred to in paragraph 2, if anyone (public) as concrete makes statements that, for example, an offense proceedings against another could be initiated.
Ratio of paragraphs to each other
If an action meets the constituent elements of both heels, punishment only occurs from paragraph 1
Subjective facts
In terms of subjective facts or intent certain knowledge of the untruth of suspicion with the perpetrator of § 164 of the Criminal Code must be available, ie it must be shown that the offender has served his claim is made against better judgment against the suspects. Even someone who is a false evidence or proof evidence of the unlawful act of another puts forward against his better judgment, the elements of § 164, paragraph 1 of the Criminal Code, according to federal court not satisfied if has (possibly) committed other unlawful act. Thus, the offense of false suspicion within the meaning of § 164 of the Penal Code is generally only satisfied if the false accusation is directed to an unlawful act from which the perpetrator knows that the accused has not actually committed.
A view in the literature also calls for purposeful intent of the perpetrator with regard to the introduction of a new process. Probably the majority opinion but does satisfy the sure knowledge here.
Special
Even if the perpetrator causes the ( active ) false accusation, to prevent its own punishment, it remains basically at the criminality. However, it may be said, for example, one is not moved even if inevitably a certain other (eg the passenger ) is suspicious. Even that one could do in such a situation thereby punishable by explicitly claimed that the other was the culprit ( in the given example, the passenger had gone ), is in dispute. The wrong suspect must also be sufficiently individualized, otherwise only § 145d paragraph 2 of the Criminal Code comes into consideration. So one against unknown or only against a nebulous described or implied person is not a sufficient event for § 164 StGB.
The conviction for false accusation can be made public at the request of the injured party in accordance with § 165 of the Criminal Code.
Historical
The second paragraph has been added under the rule of National Socialism in 1933 to curb the widespread denunciation of unpopular fellow citizens with the aim of posting in concentration camps or in other forms of so-called "protective custody" or the goal of other political persecution. The objectives pursued by the perpetrator government measures were not covered by the previously applicable only first paragraph because they were not based on allegedly committed illegal acts.
Documents / notes
- Special penology ( Germany )