As was demonstrated during the last FIFA World Cup in Brazil in 2014, Germany can be characterized as one of the most successful footballing nations. Therefore, it is not surprising that this type of sport affects German society more than any other does. Even in times without international football tournaments, the majority of the German population feels drawn to football matches in the Bundesliga (German professional football league) which take place every Saturday afternoon during its season from August to May. However, at the point where football matches are misused to inflict violence on other people, to commit criminal damage or to resist police officers, violent clashes at football matches, commonly known as “Hooliganismus” (hooliganism),cannot be tolerated and must be sanctioned effectively and consistently.
According to a current statistical survey conducted by the Zentrale Informationsstelle Sporteinsätze (Central Information Centre for Police Operations at Sports Events) a total of 1,204 people – disregarding the estimated number of unrecorded cases in this area – were injured during violent clashes at football matches in the three highest German football leagues during the season 2014/2015.
Even though this number declined by 24 percent compared to the previous season in 2013/2014 (1,588 people injured),the potential for violence among aggressive football fans remains at a high level.
Moreover, because fan behavior strongly depends on the outcomes of football matches which are, of course, highly unpredictable in most cases, such violent excesses are susceptible to becoming even more dynamic and – as a further consequence – much more uncontrollable.
However, in Germany it is necessary to distinguish between two different groups of potentially violent football fans – ‘Hooligans’ as such, on the one hand, and so-called ‘Ultras’ on the other. Taking this into account, in 2011 the Bundesregierung (Federal German Government) defined Hooligans officially as “persons who attract attention through their aggressive behavior and through their propensity to violence as well as by seeking contact with other like-minded fans from opposing football teams in order to participate in bodily confrontations”.
In contrast, Ultras are defined differently, although there is no official definition. Therefore, it appears appropriate to emphasize certain (behavioral) characteristics and assign them to either Hooligans or Ultras in order to clarify the nature of each of these groups more accurately. In the following, this is outlined on the basis of three selected examples. First, Ultras have a much closer link than Hooligans do to football in general as well as to the football club they support in particular. As such, the emotional state of Ultras is strongly connected to the outcome of the matches, whereas Hooligans attach importance to a football match particularly because it determines a date and time or rather the “setting” for their next confrontation.
Secondly, Ultras are, on average, younger (15 to 25 years old) than members of Hooligan groups (16 to mid-/late-forties) and more isolated from society,whereas Hooligan members basically emanate from all social backgrounds.
Lastly, the relationship to the police also divides Hooligans from Ultras. Whereas the Ultras ’low level of respect for the police primarily results from their deeming police work as arbitrary and repressive, Hooligans consider police officers as equal opponents and part of their fights being a variation on “Cops and Robbers.”
Nevertheless, a strict demarcation between Hooligansand Ultras is barely possible. In particular, the risk of radicalization is not diminishing, and estimates suggest that 20 to 25 percent of all Ultrasshow tendencies to become more radical and thus entering the Hooligan scene.As such, the term ‘Hooltras’ has been developed in order to illustrate this rather nebulous relationship between the two groups. As a result, football violence is not exclusively perpetrated by Hooligans, but by Ultras as well, even if such incidents of violence are generally categorized as Hooliganismus.
As mentioned above, it is becoming increasingly important to sanction Hooliganismus effectively, a task which ought to be fulfilled primarily by the instruments of the law. For this purpose, a judgement of the Bundesgerichtshof (German Federal Court of Justice, hereinafter BGH) was recently delivered with the effect that the Hooligan group as such can be prosecuted due to its high degree of dangerousness (regardless of whether it commits any additional crimes) rather than prosecuting individual Hooligansonly for the respective crimes they have committed.
At first instance the case was decided by the Landgericht Dresden (Regional Court Dresden). All of the accused were convicted for forming a criminal organization pursuant to section 129 of the Strafgesetzbuch (German Criminal Code, hereinafter StGB).
The accused Land P were convicted in concomitance with causing bodily harm by dangerous means (section 224 StGB) and rioting (section 125 StGB); the accused Kund N were convicted in concomitance with causing bodily harm by dangerous means and the accused R in concomitance with rioting.
All of the accused (L, P,K, N and R) were members of a group which was established at the latest in 2007. The accused L was the leader of the group and the members referred to their group internally as the “Rasselbande”(which can be translated, somewhat innocuously, as “a gang of rascals”). The group was composed of active or former football hooligans. Their aim was to gain supremacy in the hooligan scene in Dresden and to appear as a major force in the Dresden area in general. The members were affiliated with each other due to their equal fascination for bodily violence and their extreme right-wing views, which were exhibited in different ways among the members, but nonetheless seen as the foundation of their joint activities. There were unwritten but generally acknowledged rules among the hooligan groups regarding their fights.
Particulars of the case
Of particular importance for the BGH-decision were two events, one in 2008 and one in 2009.On the occasion of the semi-final match between Germany and Turkey as part of the UEFA European Championship in 2008, the accused K planned an assault on several Turkish restaurants in the new town of Dresden. The accused Lgave his consent a few days prior to this. The accused K sent a text message to 77 people, among them the accused P and 17 other members, informing them of the planned act of violence and inviting them to participate.
Once the game was over, 50-60 people went into the new town of Dresden under the leadership of the accused K to attack several Turkish restaurants. At this stage at the very latest, the plan was known to the present group members (including L, R and P) and was approved by them. By the time they arrived in the new town, the group had grown to approximately 80-100 people, all of whom were masked.
After the accused K had given the signal to attack, the glass panes of three Turkish restaurants were smashed with bottles and fireworks and the outdoor seating of the restaurants was knocked over. The perpetrators then invaded the interior of a kebab restaurant and destroyed furnishings causing €15,000 worth of damage. In addition, several guests were beaten up, whereby one of them lost a tooth and had to be hospitalized for two days. An employee was hit with a bottle on the back of his head from which he suffered a laceration. He had to undergo psychological treatment for over a year as a result of the attack.
In 2009, an under-25s ‘match’between hooligans from Dresden and Frankfurt took place. The accused Lorganized, watched and filmed the event. The participating hooligans from Dresden were mostly members of the Rasselbande including, inter alia, the accused K, P and N, but also non-members, which resulted in a total number of 28 men. The fight lasted for one minute and 20 seconds.
Within the ‘match’ the participants attacked each other head-on and from behind and they struck their opponents with punches to the face, blows to their heads and their upper bodies, irrespective of whether their opponents were standing or lying on the ground. A member from the Frankfurt hooligans (H) fell to the ground after only a few seconds. He suffered several facial fractures which required intensive medical treatment.
The conviction of the accused L, P, K and N in concomitance with causing bodily harm by dangerous means with regard to the events of 31 October 2009 stood up to the legal review of the BGH. The main problem in this case was the question as to whether an intended physical confrontation can be deemed contra bonos mores despite any given consent. This question, as well as further details pertaining to section 228 StGB, will be discussed in detail below.
The convictions of the accused L, P, K, N and R on the grounds of forming a criminal organization pursuant to section 129 StGB by the Regional Court of Dresden also stood up to the legal review of the BGH. The criteria that had to be fulfilled in order for this to be the case will be expounded upon below, as well as the terminology of section 129 StGB.
The convictions of the accused L, R and P concerning the event of 25 June 2008 was, however, according to the BGH, vitiated by an error of law and is thus not legally effective. Therefore, the sentences for the accused had to be meted out anew. Other than that, the judgment of the Regional Court of Dresden was res judicata.
Legal treatment of Hooligans prior to and following the BGH’s judgment:
Unsatisfactory punishment prior to the BGH’s judgment
In general, proving the commission of individual bodily harm in a large brawl in accordance with section 223 StGB is difficult, if not impossible. Due to this fact, and the danger that arises from such an uncontrollable brawl, section 231StGB sanctions the participation therein, however only in the event that the death of the person or grievous bodily harm pursuant to section 226 StGB is caused by the brawl or the attack.
The aforementioned restriction is particularly problematic regarding the phenomenon of so-called Drittortauseinandersetzungen (organized clashes between different groups of hooligans far from stadiums to avoid interference by the police).
Usually, these ‘matches’ have a set of rules that range from the restriction of weapons to a preference for one-on-one battles. However, since private ‘referees’ are the only ones to monitor the ‘matches’, the rules are, more often than not, not adhered to.Due to the imminent danger stemming from these ‘matches’, several sanctions have been discussed, for example Landfriedensbruch (rioting) in accordance with section 125 StGB, but since there was arguably no endangerment to public safety, this was refuted by some legal commentators.
Other academics deemed the matches to be one as such.
What nobody denied was the fact that the participants committed offences of bodily harm against each other. However, since each of the ‘matches’had a fixed set of rules, the acts of bodily harm were deemed lawful since, according to the court, these fights were comparable to “team kick-boxing”and, therefore, the participants consented to any bodily harm inflicted. However, this viewpoint was strongly criticized in legal literature as “belittling the danger of the situation in an almost naive way.”
As a result, organizers as well as helpers could not be prosecuted since aiding as well as abetting require an unlawful act. However, the critics were ultimately proven right when a case regarding a group of hooligans from Dresden was to show an escalation and force which induced the judiciary to rethink their ruling.[18
Why Hooligans can henceforth be prosecuted more efficiently
The Strafgesetzbuch, Germany’s Criminal Code, seeks to safeguard legally protected interests and rights and, thus, generally requires the commission of an offence in order for there to be a punishment therefor. Sections 129 and 231 StGB, however, do not focus on criminal acts but rather on the act of uniting for the sole purpose of committing an offence. A certain level of criminal energy is so inherent in the aforementioned act of uniting that, even though the crime itself has not yet been committed, the mere threat to legal interests and rights nonetheless justifies punishment. Under German criminal law, this constitutes a so-called abstraktes Gefährdungsdelikt, i.e. encompassing the punishment of dangerous activities in general without the need for an actual violation to occur. This leads to a so-called Vorfeldkriminalisierung due to the fact that the act of uniting itself constitutes the danger which is decisive for prosecution in accordance with sections 129 and 231 StGB. This penalization is technically alien to German criminal law because a punishment of this kind serves more to prevent averting danger than to prosecute a crime committed repressively. Nevertheless, the German legislator deemed it necessary to include this principle of Vorfeldkriminalisierung in German criminal law as the legal framework’s ultima ratio.
Section 231 with a view to section 228 StGB (General principle)
Section 228 StGB presupposes the prevailing principle that consent excludes the injustice of the offence and, as such, renders it lawful. However, no section in the StGB specifically enshrines this principle.
Section 228 simply entrenches an exemption therefrom, incriminating the perpetrator. Given the case that somebody “causes bodily harm with the consent of the victim,” section 228 stipulates that if “the act violates public policy” it shall be deemed unlawful.
The individual thereby forfeits his power to dispose of his legally protected right to physical integrity.
Pursuant to section 228 StGB, whether causing bodily harm is considered lawful or not is dependent upon whether the “act violates public policy,” not whether consenting violates public policy. According to the BGH, a breach of public policy could only constitute what – from the point of view of common decency and all those who think equitably and justly – constitutes punishable injustice.
A violation of public policy must not be assessed ex post facto by weighing up the injury inflicted against the enhancement obtained.
It is rather an ex ante assessment of the further course of events at the time of the commission of the offence which is essential in determining a violation of public policy.It does not come down to the injury inflicted, but rather the severity of the risk of injury that has been increased by committing the crime.
(BGH 3 StR 233/14)
In the case at hand, the BGH developed a new approach concerning the possibility to consent to acts of bodily harm committed in the course of organized brawls between rival groups of hooligans. In casio proviso, it is not of the essence whether or not the fights agreed to would be indictable as such, but rather whether they were carried out in such a way that leads to the assumption of a violation of public policy.
The BGH held that the acts of bodily harm perpetrated in the course of the arranged fights constitute unlawful acts because, notwithstanding the consent of all participants, they violate public policy within the meaning of section 228 StGB.
With this in mind, in assessing the threat of the consensual acts of bodily harm perpetrated in the course of brawls between rival groups of hooligans, one has to bear in mind the propensity to escalation that is embraced by group dynamics in any such fights. If there are no set rules of conduct for the fight which contain the danger, a propensity to escalation is irrefutably assumed.In these cases the acts violate public policy albeit that the infliction of bodily harm was consented to and although there is no immediate risk of death.
The key point is how the BGH constructs the sections in question and applies them to the cases of brawls between rival groups of hooligans. The affirmation of a violation of public policy in cases where the person consenting to acts of bodily harm is put at risk of death results mainly from general valuations of the legislator. In its case law, the BGH extracted that the possibility to dispose of one’s legally protected right to physical integrity and life is subject to restrictions.
If the person consenting to acts of bodily harm is put at risk of death, he may not dispose of his legally protected right to physical integrity and life and may consequently not consent to any such acts.
A valuation of the legislator can also be seen with a view to the way in which acts of bodily harm are committed in relation to section 231 StGB.
A socially reprehensible act may already be seen in the involvement in a brawl, since experience has shown that brawls increase the risk of serious injuries with the consequence that even the involvement itself shall constitute a criminal wrong.Section 231 StGB does not only seek to protect the life and physical integrity of casualties and to prevent fatalities caused by brawls, but also the life and physical integrity of non-participating third parties who are put at risk owing to a brawl or an attack.
The latter, being a common interest, excludes the consent of all participants of the brawl from taking justifying effect.
The BGH concluded therefrom that these basic principles have the effect that – when acts of bodily harm are in concomitance with the participation in a brawl – the commission of acts pursuant to section 231 StGB leads to the assumption of a violation of public policy within the meaning of section 228 StGB.
This contravention of the law constitutes a defiance of the legislator’s valuation of section 231 StGB which accordingly constitutes a violation of public policy, regardless of the possibility to counteract the enhanced threat to life and physical integrity with measures to prevent further escalation.
If casualties are even put at definite risk of grievous bodily harm, the violation of the legislator’s valuation of section 231 StGB leads to the irrefutable assumption of a violation of public policy within the meaning of section 228 StGB.
The BGH adduced the solution that to establish a violation of public policy within the meaning of section 228 StGB, one has to take the legislator’s valuation of section 231 StGB into account.
(Criteria of) Section 129 StGB
An ‘organization’ (Vereinigung), as stiplulated in section 129 StGB, is a union of at least three persons formed for a certain period of time with the subordination of the individual’s volition to the volition of the union as a whole whilst pursuing common aims and being in such relation to each other that an understanding of being a union is given.
A mutual obligation of the members towards each other as well as existing rules for the group itself are decisive for an affirmation of the term ‘organization’ in this sense.
In addition, it is necessary for the common aim to be pursued under a certain distribution of tasks for each member, thus in the form of an interdependent collaboration.
One further crucial element is the requirement of stability.
The union must be a permanent one, otherwise it does not qualify as an ‘organization’ pursuant to section 129 StGB.
Lastly, the volition of each member must have been merged into one collective will that shows no sign of individuality,but rather one common volition directed at one aim.
Aim of offences
Offences within the meaning of section 129 StGB are all voluntary acts that are listed in the StGB as a respective criminal offence.Moreover, as mentioned above, the planned and/or committed criminal offence must cause a heightened risk to public safety.Finally, the commission of the criminal offence must be the pursued aim of the organization, expressively or conclusively set amongst the group.
This is also a criterion for the aim of the offence committed; for this, the commission of the offence must be motivated and covered by a common plan and a combined volition with no sign of individual elements being the slightest bit dominant,but rather the collective of the abovementioned being the source of heightened endangerment.
To partake in the commission of an offence pursuant to section 129 StGB and to be punishable in accordance with the general principles of the mens rea, it is sufficient for a member to act with so-called dolus eventualis.
Under German law, intent is construed by reference to two elements: knowledge and willfulness.
Dolus eventualis combines both elements, however very weakly defined. In other words, the perpetrator is not entirely sure, yet deems the outcome as possible, and, moreover, does not necessarily desire the outcome, yet approvingly accepts it. In comparison with Anglo-American law, dolus eventualis equates to a higher level of recklessness.
Lower levels of the mens rea, such as lower levels of recklessness or (gross) negligence, are not sufficient to establish the prerequisite of the mens rea.
Encapsulating what has been said above, legal rulings pertaining to groups described as hooligans face a multitude of hazards.
The first of these has already been detailed in the introduction of this article, namely the vagueness of the term ‘hooligan’ and the difficulty of differentiating between them and other groups (namely Ultras) also connected to violent outbursts in the wake of football matches.
Inasmuch, the current denomination of the legal practice as ‘hooligan case law’ is highly prone to misunderstanding and only suffices to divert attention from the real problem at hand:
How can the phenomenon of football-related violence perpetrated not by individuals but within the dynamics of large groups be effectively combatted under the auspices of German criminal law?
The modus operandi which the BGH decided to follow entails two separate, yet mutually complementary strings of arguments:
(1) applying section 129 StGB to cover any such groups occasioning criminal violence and
(2) in order to ensure convictions pursuant to section 129 StGB, the BGH strives to exclude the possibility of consent to the infliction of bodily harm by rendering the personal bodily integrity indispensable and thus barring the way to evading criminal prosecution.
At the very core of the BGH’s consideration lies an evaluation of the nature concerning the brawls ensuing between hooligans and other similar groups: with a multitude of people on all sides partaking in the fights and due to the mostly unregulated nature of these clashes, the risk of causing grievous bodily harm or even death to a person actively taking part, or to a mere bystander, is potentially higher than in situations involving only two persons.
Owing to this increased level of endangerment in regard to physical integrity and life, the criminality of such brawls arises solely from the act of participation and not from an actual violation of legally protected interests.
The BGH argues as follows: since section 228 StGB only permits people to consent to the infliction of bodily harm if it is not contradictory to public interest, it has to be shown that the “kaum zu kontrollierende Eigendynamik” (barely controllable self-dynamics) of such brawls constitutes a factor that always indicates the violation of the public interest.
The danger of grievous bodily harm or even death being a direct or indirect result of these clashes is exponentially higher when fights among groups rather than between just two individuals ensue. With paramount importance placed on both physical integrity and life under German criminal law, the right of consent enshrined in section 228 StGB is weighed up against the hazardous nature of these brawls.
After having retraced the main gist of the BGH’s argumentation, a short evaluation is appropriate: the main objective the BGH sought to cement with its verdict was the application of section 129 StGB to groups of people exhibiting violent tendencies and repeatedly engaging in brawls causing severe and sometimes near-fatal injuries to numerous persons. Section 129 StGB allows for a far wider range regarding the possible criminal conviction of an unclear multitude of people and thus effectively combats criminally relevant behavior.
The only other alternative consists in dealing with the case of each individual person separately, particularly on the grounds of sections 223 and 224 StGB and possibly even sections 125 or 125a StGB respectively. This painstaking process, however, could only yield singular success and not provide for a comparable legal protection as section 129 StGB would. It is for this very reason that the verdict of the BGH bears the hallmarks of a landmark case, lending a sharp sword to the judiciary to cut the veil of anonymity under which individuals taking part in the brawls have often managed to escape prosecution and possible conviction so far.
As shown above, categorizing hooligans and other groups with notorious tendencies towards violence under this section and excluding the possibility of consent to inflict of bodily harm pursuant to section 228 StGB forges the leverage needed by the prosecution to instigate legal proceedings against the perpetrators. It is for this reason that the BGH’s ruling in this matter is a signal conveying an important message to both society and to the kind of groups that are or will be affected by the new legislation: violence has no place in society, be it the case that it is exerted by one person or by an assembled group of people.
Moreover, a large accumulation of people does not offer protection against legal prosecution and the complexity of such situations does not constitute an extra-legal space for arbitrary criminal behavior.
The authors are law students at the Friedrich-Alexander-Universität Erlangen-Nürnberg.
Robert Siekmann, Fußball-Hooliganismus, in: Walker (ed.), Hooliganismus, 2009, p. 61.
ZIS-Jahresbericht “Fußball” (Saison 2014/2015), p. 15, available at https://www.polizei.nrw.de/media/Dokumente/ZIS_Jahresbericht_2014_15.pdf (last accessed 17 July 2016).
See Gabriele Kett-Straub, Hooliganismus in Deutschland, Neue Kriminalstatistik 3/2012, p. 93.
Cf. BT-Drs. 17/8051, 02.12.2011.
Kett-Straub, p. 95; Rolf Denker, Angst und Aggression, 1974, p. 139.
Kett-Straub, p. 94-5.
Bastian Krahm, Polizeiliche Maßnahmen zur Eindämmung von Hooligangewalt, 2008, p. 57.
Kett-Straub, p. 94, 98.
Percentages according to http://www.spiegel.de/sport/fussball/fankongress-ultras-hooligans-hooltras-a-488211.html (last accessed 17 July 2016).
BGH 3 StR 233/14.
Stree/Sternberg-Lieben, in: Schönke/Schröder, § 231 mn. 1.
Kett-Straub, p. 96.
Spoenle NStZ 2011, 552 (554).
Kett-Straub, p. 96.
Kett-Straub, p. 96.
BGH NStZ 2015, 270.
Hardtung, in: MüKo-StGB, § 228 mn. 1.
Id., in: MüKo-StGB, § 228 mn. 2.
BGH 5 StR 408/52.
Hardtung, in: MüKo-StGB, § 228 mn. 27.
BGH 3 StR 233/14, mn. 31.
BGH 3 StR 233/14, mn. 35.
BGH 3 StR 233/14, mn. 39.
BGH 3 StR 233/14, mn. 44.
BGH 3 StR 233/14, mn. 46.
BGH 3 StR 233/14, mn. 46.
BGH 3 StR 233/14, mn. 47.
BGH 3 StR 233/14, mn. 50.
BGH 3 StR 233/14, mn. 53.
Schäfer, in: MüKo-StGB, § 129, mn. 14; BGHSt 28, 147 (148 f.).
Schäfer, in: MüKo-StGB, § 129, mn. 16.
Id., in: MüKo-StGB, § 129, mn. 16 (note 6).
Sternberg-Lieben, in: Schönke/Schröder, § 129, mn. 7a.
Schäfer, in: MüKo-StGB, § 129, mn. 22.
Indicators for a permanent organized union can be further found in Schäfer, in: MüKo-StGB, § 129, mn. 18.
Sternberg-Lieben, in: Schönke/Schröder, § 129 mn. 6.
Schäfer, in: MüKo-StGB, § 129, mn. 40.
Id., in: MüKo-StGB, § 129, mn. 48; BGHSt 49, 268 (271).
Sternberg-Lieben, in: Schönke/Schröder, § 129 mn. 7.
Id., in: Schönke/Schröder, § 129 mn. 16.
BGHSt 14, 132; 16, 130; 33, 100; 39, 305; Hohmann, in: MüKo-StGB, § 231, mn. 1; Momsen/Momsen-Pflanz, in: Satzger/Schluckebier/Widmaier, § 231, mn. 23.
Momsen/Momsen-Pflanz, in: Satzger/Schluckebier/Widmaier, § 231, mn. 1.