'nullum crimen sine lege, nulla poena sine lege': 'Insult' - On the state of the art in current Germany.

“nullum crimen sine lege” - “nulla poena sine lege”:

“ Insult ” – On the state of the art in current Germany *)

Richard Albrecht

„Whenever I think over Germany at night / I can´t sleep any longer tight.” (Heinrich Heine, 1844: Deutschland – ein Wintermärchen)

„Any executioner nowadays has got an honourable tenure profession. Why should, consequently, not every honourable civil servant latently bear a hangman ? – But civil servants don´t kill human beings ! – That´s exactly what they´re doing, Kafka replied, they are virtually transforming developable living human beings into dead registration-numbers which are not able to develop any longer.” (Franz Kafka, 1917: Gespräch mit Gustav Janouch)

„ Justice is living at a floor to which judiciary has no entry.” (Friedrich Dürrenmatt, 1985: Justiz. Roman)

I. Seventy years ago, after having realized what the abolition of central juridical principles constituting the penal law of any rule of law (“Rechtsstaat”) really means, a distinguished scholar, Jerome Hall, reflects on the double formula nulla poena sine lege and nullum crimen sine lege, which means that (i) nobody is be punished without a statute fixing a penalty for “criminal” behaviour; (ii) no conduct is to be held “criminal” without a specific description according to the behavioural “circumstance element of a penal statute”, which (iii) must be “strictly construed”; and (iv) penal laws shall not be given “retroactive effect” (Hall 1937).

Five years later a refugee scholar, Franz Leopold Neumann, a former democratic lawyer representing the small social and democratic sector of the legal profession in Weimar Germany and her culture (Gay 1969) before the Nazi gang overtook power (in 1933), in his first US-book 1942 named the very reduction of professional judges in Nazi-Germany similar to what the German Marxist intellectual Rosa Luxemburg (1871-1919) once sarcastically called “Polizeibüttel” – this is: "police official", "administrative official", "mere policeman" (Neumann 1944²; 1966³: 444, 447, 458). Moreover, Franz L. Neumann characterized what was running in Germany at that time as a graphic violation of the traditional basic principle of ”old Europe” based on: „nulla poena sine lege, nullum crimen sine lege“ – no crime without law, without law no punishment [and no punishment without guiltiness]. The very reason of that empirical involution of justice, right, and law, and its dramatic consequences, lays, indeed, in the permanent ignorance of what Montesqieu (1689-1755) called “separation of powers” (originally “la puissance séparée”[1]) – which, in German/y, is stupidly translated as “Gewaltenteilung” (i.e. “division of powers”), even from those prominent figures, representing the legal profession in Germany like Dr Carlo Schmid (1948) , and Dr Ernst Forsthoff (1992²): “Gewaltenteilung” in fact is not only a as cretinistic as confusing translation of what has to be translated as “Gewaltentrennung”[2] leading to permanent rubbish talk within the academic world but also to sustainable denial of a relevant aspect of legal normatively, producing a pathological mechanism named “selective ignorance” whenever social psychologists discuss the cloudy issue as a matter of moral and intellectual obscurity.

II. As an experienced German social scientist who is both still alive and still living within Germany Today, I worked out, in 2005, the very meaning of this setting in the field of a petty little crime named „insult“ (“Beleidigung”) - and so called “abusing” radical critique („Schmähkritik“) - which is in a broader sense regarded as a human statement or action affronting other human/s. Until now, “insult” is not defined within the German penal law (which merely contains a hint on the penalties) but obviously punished by “independent” professional judges as life-long civil servants none of them ever had, until now, applied the basic principle „nullum crimen sine lege, nulla poena sine lege, sine culpa nulla poena“ in this specific field. This is the truth, the only truth, and nothing but the very truth characterizing the actual status of justice in current Germany within this specific field: no individual professional judge did, since the Federal Republic of Germany (FRG) was, in 1949, founded, ever refuse to condemn anybody who was prosecuted because of “insult” – a petty little crime which is, until now, written down, and proclaimed, as such but not definitely defined in § 185 of the current German Penal Law … and even whenever you are using an internal manual (officially named “Richlinien für das Strafverfahren und das Bußgeldverfahren” [RiStBV]) which was at first created in 1977, generalized in 1999 and which is meanwhile widely accepted as a helpful tool for coping with the juridical business as run by any public prosecutor, and also by many professional judges, you will, in its intra-directives no´s 229-232, not at all find any hint on what “insult” could mean or really means – but instructions how to (i) manage the public accusation (229), (ii) suppress aspects of the truth (230), (iii) publish the condemnation formula (231), and, finally, (iv) handle the problem of “insult” whenever members of the juridical staff itself are involved (232) - just as if the current German Penalty Law (in 2007) has nothing better to do than to verifying the critical note Franz L. Neumann (1944²: 457) gave us when commenting the business of successful “advocates of the phenomenological school: They never define a crime; they describe types of criminals …”

It is true that current German Penalty Law (GPL, i.e. StGB: Strafgesetzbuch) does contain a paragraph (§ 90a) titled “ denigrating the state and the symbols of the state”, enumerating (§ 90 a [1]) the constitutional order of the Republic or one of her Federal States and (§ 90 a [2]) the colors, the flag, the emblem or the hymn of the Republic or one of her Federal States, but it is as well true that current GPL does not include the statutory offences well-know in Imperial Germany (Deutsches Reich until 1918) named “insult of the Emperor” (at last His Majesty Wilhelm II: “Majestätsbeleidigung”) or “subversive instigation” of public enemies against the state (“Staatsfeindliche Hetze”) in the German Democratic Republic (GDR) until 1989. The very blank within actual GPL, however, means that, in principle, every administrative body may reclaim for being affronted by any either public or private verbal attack/s labelled as “insult” of the authority – an absurd and bizarre situation: When you are calling any public prosecutor agency as such, for example, “a criminal association” without naming anybody of her agents - whenever the chief public prosecutor feels one of his officers could be meant, in current Germany you may be publicly accused of “insult” and, finally, condemned valid.