Notes
Ernst-Wolfgang Böckenförde, Constitutional and Political Theory, Selected Writings, Miriam Künkler and Tine Stein (eds.), Volume I, Oxford: Oxford University Press, 2017, pp. 62–63.
Böckenförde (n 1), p. 59.
Max Weber, Political Writings, Peter Lassman and Ronald Speirs (eds.), Cambridge: Cambridge University Press, Cambridge 2018, pp. 310–311.
Malcolm Thorburn, “Criminal Law as Public Law”, in: Philosophical Foundations of Criminal Law, RA Duff and Stuart Green (eds.), Oxford: Oxford University Press, 2011, pp. 21–43, p. 28.
Thorburn (n 4), p. 24.
cf. Georg Wilhelm Friedrich Hegel, Elements of the Philosophy of Right, Allen W. Wood (ed.), H. B. Nisbet (trans.), Cambridge: Cambridge University Press, 2007, para. 97 (p. 123).
See Nils Jareborg, Scraps of Penal Theory, Uppasala: Iustus Förlag, 2002, pp. 72 ff.
Article 1 of the Code provides universal jurisdiction for the crime of genocide, crimes against humanity and war crimes without any qualification relevant part of which reads as follows: “The Code shall apply to criminal offences contained in §§ 6 to 12 even when the offence was committed abroad and bears no relation to Germany […]”
Article 153f of the German Code of Criminal Procedure reads: (1) The public prosecution office may dispense with prosecuting a criminal offence for which there is criminal liability pursuant to sections 6 to 14 of the Code of Crimes against International Law in the cases referred to in Section 153c subsection (1), numbers 1 and 2, if the accused is not resident in Germany and is not expected to so reside. If, in the cases referred to in Section 153c subsection (1), number 1, the accused is a German, however, this shall only apply if the offence is being prosecuted before an international court of justice or by a state on whose territory the offence was committed or a citizen of which was injured by the offence.
(2) The public prosecution office may dispense with prosecuting an offence for which there is criminal liability pursuant to sections 6 to 14 of the Code of Crimes against International Law in the cases referred to in Section 153c subsection (1), numbers 1 and 2, in particular if
- 1.
no German is suspected of having committed the crime;
- 2.
the offence was not committed against a German;
- 3.
no suspect is, or is expected to be, resident in Germany;
- 4.
the offence is being prosecuted by an international court of justice or by a country on whose territory the offence was committed, a citizen of which is either suspected of the offence, or suffered injury as a result of the offence.
The same shall apply if a foreigner who is accused of a criminal offence that was committed abroad is resident in Germany but the requirements of the first sentence, numbers 2 and 4, are met and transfer to an international court of justice or extradition to the prosecuting state is admissible and intended.
(3) If, in the cases referred to in subsections (1) or (2) public charges have already been preferred, the public prosecution office may, at any stage of the proceedings, withdraw the charges and terminate the proceedings.
- 1.
Cf. George P. Fletcher, Loyalty: An Essay on the Morality of Relationships, Oxford University Press, Oxford 1995, pp. 41 ff.
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Associate Professor of Criminal Law and Criminal Procedure Law, LL.M. and Dr. jur. (Cologne), Faculty of Law, Istanbul Sabahattin Zaim University, Istanbul, Turkey. Contact e-mail: emrah.bozbayindir@izu.edu.tr.
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Bozbayindir, A.E. Book Review. Crim Law Forum 31, 127–137 (2020). https://doi.org/10.1007/s10609-020-09387-w
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DOI: https://doi.org/10.1007/s10609-020-09387-w