DR. SARAFI's argument contributes to the planned decriminalization of Sections 284 et seq. StGB by the Federal Ministry of Justice at
From our press archive. This communication gives the status of the original publication of 24 November 2023 again. Subsequent developments in the process are not automatically taken into account.
DR. SARAFI hat bereits im Jahr 2019 darauf hingewiesen, dass „Die Kriminalisierung des Glücksspiels durch die §§ 284 ff. StGB unter strafverfassungsrechtlichen Gesichtspunkten“ (ZfWG 2019, 469-474, zu lesen unter: Hier) unangemessen erscheint, da nicht strafwürdiges Verhalten kriminalisiert wird und in einem freiheitlich-demokratischen Rechtsstaat die oberste staatliche Maxime die größtmögliche Freiheitsenthaltung des Einzelnen sein muss, solange nicht Rechtsgüter Dritter verletzt werden. Hierbei wurde erstmals der von Prof. Dr. Matthias Jahn von der Goethe-Universität in Frankfurt am Main geprägte Begriff des Strafverfassungsrechts in einem rechtspolitisch hoch umstrittenen Kontext verwendet.
Four years later, the Federal Ministry of Justice announced on 23.11.2023, including Sections 284ff. StGB — these are administrative criminal laws, i.e. criminal liability does not depend on the offence itself, but only on the existence of a permit, which in turn is based on the GlüStV, which itself was once again classified as contrary to EU law by the ECJ (!) — to want to delete.
The BMJ's reasoning, albeit only briefly, reveals that it was the criticism of Sections 284 et seq. presented by DR. SARAFI in 2019. StGB has recognized that with Sections 284ff. StGB conduct is criminalized that is not punishable under criminal constitutional aspects — detached from emotions and moral ideas that must have no place in criminal law anyway.
It is about the abstract question of the legitimation of criminal laws. It is about the question of the conditions under which a constitutional state, which is obliged to grant its citizens the greatest possible freedoms, may prohibit certain types of conduct with criminal law. While this is obvious in acts such as murder and manslaughter, bodily harm, theft, robbery, fraud, etc., it unfortunately happens time and again that states criminalize conduct that does not appear punishable upon close examination.
This aspect is crucial in order to differentiate oneself from dictatorial power structures in which conduct is punished indiscriminately even though it has no material wrongdoing that would justify prosecution through criminal law. An example of this is the (previous) criminalization of homosexuality or the controversial debate about the criminal laws associated with abortion. It should be remembered that in Germany until 1994 (!) Section 175 StGB criminalized sexual acts between male persons and punished with criminal law; homosexuals were prosecuted with the sharp sword of criminal law.
Unfortunately, renowned authorities are still arguing against decriminalization, arguing that crime is increasing. In doing so, they fail to recognize that crime can only increase because something is criminalized that cannot be criminalized.