26 March 2018

High Treason in Germany – Rebellion in Spain

Carles Puigdemont, the fugitive former President of Catalonia wanted by Spanish law authorities, has been arrested in Germany. This is no time to judge what happened from the point of view of politics or strategy. The only perspective that matters right now is the judicial, or in other words, the legal one.

In order to obtain the transfer of the criminal suspect, the Spanish Judge of the Supreme Court Pablo Llarena has issued  an European Arrest Warrant (EAW) in which he will request the transfer of Puigdemont for the crimes of rebellion and embezzlement at least. The EAW will be received by the Oberlandesgericht of Schleswig, i.e., by the superior court of the federal state in which Puigdemont has been arrested. This court will decide on the transfer of the suspect within a maximum period of 60 days, although the term of the actual transfer may be extended for various reasons up to approximately one year at the most, but this is not the most common case.

The EAW, which is the result of the mutual trust between European judges, allows the immediate and fast transfer of the suspect without a thorough examination by the judge of the country in which the suspect is arrested. But this is only the case with a very restrictive list of enumerated crimes, of which rebellion is not a part, and embezzlement only with a considerable effort of interpretation.

In the case of rebellion, since that crime is not on the aforementioned list, the judge must undertake a more accurate analysis of the facts that the suspect is accused of, in order to decide if they constitute a crime in the judge’s country. In the case of Germany, the rules of the Penal Code to be analyzed are 81 (high treason) and 105 (coercion against constitutional bodies). The first describes a behaviour analogous to the crime of rebellion in Spain. The second refers to forcing constitutional bodies not to perform their functions or to do so in a certain sense. Both crimes are punished with serious penalties, although in practice they are somewhat milder than Spanish ones.

Both crimes have in common that the behavior described must be carried out with “violence” or “threat of violence”. But as German case law shows, not any sort of violence is enough, but only violence massive enough to really change the will of the authorities, both from a physical point of view against people or – more difficultly – things (vis absoluta), or in an intimidatory sense, that is, the “threat of violence” (vis compulsiva). According to German case law, even a massive general strike fits the bill only as long as it does damage to the population in a relevant way and implies a display of force, as it would be the case with drastic interruptions of essential supplies.

Therefore, a simple strike or the failure to provide a basic service does not match the conditions of the concept of violence according to German case law. Nor do massive demonstrations without any kind of incident or very few incidents. The mere possibility that incidents or riots would occur is not enough to claim the existence of “violence”, unless the suspect had directly threatened with them.

All these considerations do not mean, at all, that Puigdemont will not be transferred by the German judges. It cannot be ruled out that the German judges will interpret the concept of violence in a similar way as the Spanish Judge has done. In fact, the concept of “violence” has suffered repeated – and very controversial – extensions of its range in Germany in the last forty years. Furthermore, as it was in my opinion the case in Spain, the German judges might also acknowledge the imminent threat to the integrity of a State, a value so essential in Germany that Einigkeit (unity) is the first word of its National Anthem. This could possibly bring the German judges to see “violence” where, in my opinion and that of so many others, there never was any. By the way, it would be very counterproductive to the interest of all the suspects if that violence were to occur from now on.

The law is not a mathematical operation. It is influenced by ideologies and emotions, as any other action of human beings. Anyway, ideology or emotions can never be the jurists’ only or principal guide when reasoning in legal terms.

A Spanish version of this article has been previously published on Agenda Pública.

SUGGESTED CITATION  Nieva-Fenoll, Jordi: High Treason in Germany – Rebellion in Spain, VerfBlog, 2018/3/26, https://verfassungsblog.de/high-treason-in-germany-rebellion-in-spain/, DOI: 10.17176/20180326-200721.


  1. Oliver García Mon 26 Mar 2018 at 22:23 - Reply

    Im Beitrag wird als Beispiel aus der Rechtsprechung zum Hochverrat der Fall eines Streiks angesprochen. Das nimmt Bezug auf das Urteil des BGH vom 04.06.1955 – StE 1/ 52 – (https://dejure.org/1955,543). In der Entscheidung differenziert der BGH zwischen örtlich oder branchenmäßig begrenzten Streiks (keine “Gewalt”) und Generalstreiks (möglicherweise “Gewalt”). Ich möchte davor warnen, dieser Entscheidung für das heutige Verständnis von § 81 StGB eine größere Bedeutung beizumessen. Sie ist aus der Zeit der ungehemmten Kommunistenverfolgung durch die westdeutsche Justiz und kann im Rückblick eher als Unrechts-Sprechung gewertet werden. Eine Parallele zur heutigen Situation in Spanien gibt es immerhin, darin, daß in beiden Fällen angesichts einer – zumindest empfundenen Krisensituation – ein überhitzt-fanatisiertes Element in der Justiz die Oberhand erlangt hat.

    Jedenfalls ist seit den fünfziger Jahren neben vielem anderen auch bei den Staatsschutztatbeständen ein Bedeutungswandel eingetreten und für das Puigdemont-Verfahren gilt das heutige Verständnis. Aufschlußreich sind die Ausführungen des BGH im Startbahn-West-Urteil (https://dejure.org/1983,164), das ich in meinem heutigen Blogbeitrag zum Fall Puigdemont in Beziehung gesetzt habe: https://blog.delegibus.com/2018/03/26/puigdemont-wird-so-bald-nicht-ausgeliefert/

  2. Ludger Tue 27 Mar 2018 at 23:01 - Reply

    Mich wundert, wie locker der §81 Hochverrat gegen den Bund (!) auf andere Staaten übertragen wird. Der Straftatbestand richtet sich ziemlich explizit nur gegen die Bundesrepublik Deutschland, nicht Spanien, Syrien oder Serbien. Bei Gewaltverbrechen oder Eigentumsdelikten mag das möglich sein und die könnte man notfalls auch hier verhandeln, aber Hochverrat.

  3. Beh G. Sun 1 Apr 2018 at 09:50 - Reply

    Thank you for a great informative article Jordi.

    I don’t speak German but every English translation of Article 81 that I have seen as well as the Google translation of the said article suggest “force or threat of force” rather than “violence or threat of violence”.

    You primarily used violence in your post but also said as it does damage to the population in a relevant way and implies a display of FORCE.”

    There’s obviously a marked difference between the meaning and interpretation of force versus violence [use or threat of force does not necessitate violence] so I’m really interested to know which one is the correct translation of the German penal code.

    Thanks in advance.

  4. Reader Wed 4 Apr 2018 at 12:29 - Reply

    Some thoughts:
    – The court will have to consider how it would see the case if Mr. P. wasn’t a Catalan “rebelling” against Spain, but part of a separatist movement that Europe supports. The fact that Germany and Spain are close allies hopefully will not blind them to seeing the consequences their decision may have on other cases.
    – Some care will have to be given to the question if high treason against Germany is analogue to rebellion against Spain. One may argue that, but it’s a problem. Again, we’d also have to apply the same ruling to “rebels” against states Germany does not acknowledge as friendly.
    – If one sees Mr. P.’s actions as high treason, one must ask if it is at all possible to lead or even just support a separatist movement without committing a crime. I do not agree with the idea of Catalan independence. In fact, I see it as a short-sighted and motivated by self-interest. But one has to acknkowledge that it was as peaceful as humanly possible. The idea itself may be naive and the approach obviously didn’t work very well, either, but it’s hard to say what they should have done instead. If we see that as high treason, all separatists are traitors, as all separatist thinking can lead to violence. And that seems a bit extreme.

  5. PB Thu 5 Apr 2018 at 16:47 - Reply

    @Beh G.: as a German native, I was going to say the same. “Gewalt” actually translate to both, violence and force. In this case, I would surely translate it as “force” though, since force may easily be conducted without being violent. However, the interpretation in this post seems to be closer to force then to violence anyway (a general strike can hardly be seen as per se violent).

  6. Dan Fri 6 Apr 2018 at 21:56 - Reply

    Thanks a lot for the introduction, it’s very helpful.
    I have another question though.
    a) How does that violence needs to be exercised? As a direct consequence of the your own actions or any violence that may unfold as part of the consequences of your actions, rather than your actions themselves?
    For example I may use fireworks in a demonstration, inflicting fear in the people present in it and provoking a stampede causing fatalities by crushing.

    b) And what is it violence? Can we talk about passive violence such impeding the authorities to gain access to a building that has been asked by a judge to be closed by using defensive force? You can simply withdraw when a policeman tells you to get out or you can join your elbows with your peers and pull backwards to avoid being removed. That can generate outrage among people blocking the entrance to the building, generating then a more direct violence against the authorities.

    c) Lastly if such passive violence follows a pattern in various places as the same time in different geographical points, can we talk about a sustain strategy that somehow generates violence?

    d) How far off does a judge need look at in order to see if third-party violence as part initial actions are to be considered as violence generated by the conflict itself?

    It is very complex to be honest. There is enough ground to make a decision either ways and as such, it could paradoxically and ultimately be decided by what I guess lay refuses the most: emotions.

  7. Ludger Sat 7 Apr 2018 at 23:14 - Reply

    The violence/force/Gewalt discussion is obsolete for this case, since the rebellion already failed to be against the federal republic of Germany.

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