In many Western countries, the unprecedented global terrorism has led to an extensive expansion of the criminal law dealing with remote forms of risk, a development that poses new questions about the constitutional limits of criminal law. This project analyzes and compares the criteria currently discussed in Germany and England to limit the scope of criminal law in relation to anti-terror legislation. The aim of the study is to contribute to the discussion as to how a fair reconciliation between individual freedom and collective security can take place.

Since the at­tacks on New York, Mad­rid, and Lon­don, all West­ern demo­cra­cies are con­sidered pos­sible tar­gets for a ter­ror­ist at­tack, a situ­ation that causes both a deep sense of un­ease with­in the pop­u­la­tion and the need for heightened se­cur­ity. Ger­many and Eng­land, as well as oth­er coun­tries, have re­spon­ded to the danger of this un­pre­ced­en­ted glob­al ter­ror­ism by in­tro­du­cing new crim­in­al of­fenses, many of which go bey­ond the in­ter­na­tion­al re­quire­ments for com­bat­ing ter­ror­ism. In view of the po­ten­tially dis­astrous res­ults of ter­ror­ist acts as well as their un­pre­dict­ab­il­ity, the le­gis­la­tion was passed with pre­vent­ive, se­cur­ity-re­lated goals in mind. The primary ob­ject­ive of the new laws is thus to al­low earli­er gov­ern­ment in­ter­ven­tion by crim­in­al­iz­ing pre­par­at­ory con­duct far in ad­vance of ter­ror at­tacks. The res­ult­ing sub­stan­tial in­ter­fer­ence in the free­dom of in­di­vidu­als is usu­ally jus­ti­fied by the sup­posed se­cur­ity provided by the new of­fense defin­i­tions against fu­ture at­tacks. In a con­sti­tu­tion­al state, however, there must be clear lim­its on state power – be­cause without such lim­its, the abil­ity of the state to in­ter­vene ever earli­er in the run-up to crime could one day lead to crim­in­al pun­ish­ment for mere thoughts. New risks, there­fore, pose new ques­tions about the le­git­im­acy and the func­tion­al lim­its of crim­in­al law and high­light the ten­sions between se­cur­ity and in­di­vidu­al free­dom.

The thes­is ex­am­ines the cri­ter­ia that are be­ing dis­cussed in the at­tempt to re­solve the con­flict between free­dom and se­cur­ity. It will fo­cus on mod­el ap­proaches to the lim­its of crim­in­al law as seen in the Ger­man and Eng­lish anti-ter­ror­ism le­gis­la­tion. The prob­lem posed by the func­tion­al lim­its of crim­in­al law in Ger­man anti-ter­ror le­gis­la­tion is par­tic­u­larly clear in the crim­in­al­iz­a­tion of con­duct that is so­cially ac­cept­able and in the pro­scrip­tion of con­duct that is not harm­ful in and of it­self, but can lead to harm by means of an in­ter­ven­ing choice of the of­fend­er or a third party. The pen­al­iz­a­tion of such be­ha­vi­or and ac­tions, well in ad­vance of an at­tack, raises is­sues of le­git­im­acy. Should the pos­ses­sion of art­icles that are ac­tu­ally harm­less be pun­ish­able if the in­ten­tion ex­ists to use them for an at­tack? Fur­ther­more, re­cog­ni­tion of broadly defined col­lect­ive leg­al goods, such as “pub­lic peace,” brings about the prob­lem­at­ic ex­pan­sion of crim­in­al li­ab­il­ity. In re­cent Brit­ish anti-ter­ror le­gis­la­tion, the con­flict between free­dom and se­cur­ity be­comes even more ap­par­ent. A very broad defin­i­tion of “ter­ror­ism” and the aban­don­ment of ob­ject­ive crim­in­al of­fense ele­ments have in many cases led to massive cur­tail­ment of the in­di­vidu­al freedoms of private per­sons.

Both Ger­many and Eng­land have a long tra­di­tion of dis­cuss­ing cri­ter­ia de­signed to lim­it pun­it­ive ac­tion and to provide a bench­mark for the le­git­im­acy of pen­al pro­vi­sions and the hand­ling of bor­der­line cases. Where­as the de­bate in Ger­many is con­cen­trated primar­ily in the fields of crim­in­al and con­sti­tu­tion­al law, in the Anglo-Amer­ic­an lit­er­at­ure, the search for cri­ter­ia for the le­git­im­a­tion of crim­in­al law is seen primar­ily as a philo­soph­ic­al ques­tion. More re­cently, however, Anglo-Amer­ic­an crim­in­al law schol­ar­ship has paid more at­ten­tion to this top­ic. While the Ger­man crim­in­al law lit­er­at­ure has ex­amined – to some ex­tent – Anglo-Amer­ic­an ap­proaches in this area, a com­pre­hens­ive com­par­is­on of the prin­ciples used to lim­it the scope of crim­in­al law in both sys­tems has not yet been un­der­taken. There also seems to be no com­par­at­ive study on the im­pact of lim­it­ing prin­ciples in the ter­ror­ism con­text, and thus no light has been shed on the ques­tion of wheth­er such prin­ciples play a role in the anti-ter­ror­ism policy of the two coun­tries.

The aim of the re­search pro­ject is the elab­or­a­tion of the func­tion­al lim­its of the scope of crim­in­al law in re­la­tion to anti-ter­ror le­gis­la­tion, cur­rently dis­cussed in Ger­many and Eng­land. The cri­ter­ia used to es­tab­lish the lim­its of crim­in­al law and their ap­plic­a­tion to the rel­ev­ant laws in both coun­tries will be dis­cussed. In this con­text, the sim­il­ar­it­ies and dif­fer­ences between the Ger­man and the Brit­ish con­cepts will be ad­dressed and com­pared in the hand­ling of bor­der­line cases. Fi­nally, the thes­is will re­flect on the ques­tion of wheth­er the Ger­man or the Brit­ish counter-ter­ror­ism ar­range­ments are prefer­able in light of con­sti­tu­tion­al stand­ards. The over­all aim is to con­trib­ute to the dis­cus­sion as to how a fair re­con­cili­ation between in­di­vidu­al free­dom and col­lect­ive se­cur­ity can be achieved.

The study will be car­ried out by means of a func­tion­al com­par­at­ive leg­al ana­lys­is. Com­par­is­on with Eng­land, a coun­try with an Anglo-Amer­ic­an leg­al sys­tem, prom­ises to open up new per­spect­ives with re­gard to the Ger­man leg­al sys­tem. Moreover, it seems that Eng­land, which is pur­su­ing a more in­trus­ive crime policy than Ger­many is, re­solves the con­flict between free­dom and se­cur­ity by oth­er means. The ana­lys­is of ex­ist­ing anti-ter­ror­ism le­gis­la­tion and of the lim­its of crim­in­al law and the ap­plic­a­tion of the lim­it­ing cri­ter­ia to the counter ter­ror­ism laws in­volve stat­utory in­ter­pret­a­tion as well as the eval­u­ation of case law and aca­dem­ic lit­er­at­ure.

The dis­ser­ta­tion is com­posed as fol­lows: An in­tro­duc­tion to the prob­lem at hand as well as a de­scrip­tion of the goal, meth­od, and course of the study will be fol­lowed by coun­try re­ports on Ger­many and Eng­land. The first sec­tion of each coun­try re­port provides an over­view of crim­in­al anti-ter­ror­ism le­gis­la­tion. The second sec­tion con­sists of a gen­er­al de­scrip­tion of the cri­ter­ia for lim­it­ing the scope of crim­in­al law in the re­spect­ive coun­try. The third sec­tion of the coun­try re­ports will il­lus­trate the im­pact of the find­ings on anti-ter­ror le­gis­la­tion. The study con­cludes with a com­par­at­ive sum­mary and an over­all eval­u­ation with re­gard to the lim­its of crim­in­al sanc­tions in ac­cord­ance with the rule of law.