I think we agree in almost every particular. Just a couple of quick points.
* It's a little misleading to say the Mainz prosecutors "referred to" Article 5, the free-speech provision in Germany's constitution, when they announced they were dismissing the case. What they actually said they wanted to do is "clarify" what constitutes protected expression under Article 5. First off, that's not a prosecutor's job, or indeed that of any part of the executive branch.
Second, even if they had used Article 5 to justify dismissing Böhmermann's case instead of something that appears worryingly close to vice versa, it wouldn't have been a substantive objection. As I'm sure you know, Article 5, for reasons that warrant a post of their own, is a paper tiger that only rarely and inconsistently blocks insult prosecutions.
* You quibbled with my use of "indicted," so it's only fair that I quibble with you when you say you "doubt that anyone in German government wanted B. prosecuted!" He was prosecuted, and very publicly. It's just that the case was dismissed before it was brought to trial.
As to whether the federal government wanted him convicted, I don't care to speculate, but I'd say your take on what they were thinking is completely plausible. The federal government chose to dump the case in the Mainz prosecutors' laps, and the prosecutors used a constitutional excuse to get rid of it.
So I'm not seeing a lot of air between our views. You're saying prosecuting Böhmermann was sufficiently unpopular that the decision was reached not to put him on trial and convict him. So am I. If we disagree, it's only on how soon that decision was made and how much negative publicity was necessary.
Federalism is a much weaker force in Germany than it is in the States, and if the administration had put pressure on the Mainzers to drag him into court, I find it highly unlikely it wouldn't have happened. After all, historically, prosecutors have been more than willing to pursue Article 103 cases.
So however the decision to dismiss the case was arrived at, we agree that the reason it was such a "nuisance," as you put it, is that people heard all about it and hated it. That's on the media, including the foreign media.
With respect, I strongly disagree. Translating the legal parlance of a civil-law country into common-law terms is one of the biggest challenges in academia (outside STEM, anyway,) and compromises are often inevitable.
For example, consider the way the German government chooses to translate "Verbrechen" and "Vergehen," as "felony" and "misdemeanor" respectively. That's substantially accurate, in that it captures the spirit of both common-law concepts. But it's not completely accurate, because the word "felony" refers to a crime punishable by a maximum of a year or more in prison, while "Verbrechen" is statutorily defined as a crime with a mandatory minimum of a year behind bars.
Or take your own use of "pressing charges" for "Strafantrag." What Americans typically do by "pressing charges" is more similar to the German "Strafanzeige." But you get the point across, accurately and succinctly.
Finally, Article 185 belongs to a special subset of criminal offenses known as "Antragsdelikte," which, like I previously said, require that the aggrieved party file a Strafantrag before prosecutors can take over the case. Article 104(a) StGB imposes a substantially similar requirement on Article 103 cases, with the added caveat that the cabinet has to sign off on the prosecution before it can go forward.
These are meaningful hurdles that need to be overcome before the prosecution even gets to the Ermittlungsverfahren stage. That alone is enough to distinguish Böhmermann's case from other prosecutions where Ermittlungsverfahren are indeed routine. (There's always Section 153 in cases involving Vergehen charges.)
So, no, I think "prosecutors indicted" is wholly appropriate as a way to summarize what happened. A more technical text would require a more thorough explanation, in the style of this comments thread, and at 1500 words, my post's already beefy. But it's nice to run into someone who appreciates these difficulties.
"Indicted" is a useful way to translate and compress several parts of German criminal procedure that don't have a direct equivalent in American law. For charges to be brought under Article 185, the aggrieved party has to lodge a formal complaint with the government notifying it that it wants the accused to be tried. This isn't an optional step: no complaint, no charges. Prosecutors can then either take up the case or decline under Section 153. Additionally, for an Article 103 prosecution to happen, you need the consent of the administration.
All these preconditions were met by the 15th of April. By this time, the government's formally taken up the case, though it has yet to formally announce the charges in an "Anklageschrift."
There's a step between these two events called a "Ermittlungsverfahren," the essence of which is that the government considers its chances of prevailing at trial. To that end, as here, it conducts an investigation. Prosecutors may also compel people, including the defendant, to appear before them and be interviewed, optionally with a lawyer present. (That's what reportedly happened to Böhmermann.) It's during this phase that the government decided not to proceed to trial and dismiss Böhmermann's case.
But because the intricacies of criminal procedure have nothing to do with the post, which is long enough as it is, "indicted" was fairly useful shorthand. It gives you a good idea of how much trouble he was in.
So glorious.
Re: Re: Re: Re: Indictment
I think we agree in almost every particular. Just a couple of quick points.
* It's a little misleading to say the Mainz prosecutors "referred to" Article 5, the free-speech provision in Germany's constitution, when they announced they were dismissing the case. What they actually said they wanted to do is "clarify" what constitutes protected expression under Article 5. First off, that's not a prosecutor's job, or indeed that of any part of the executive branch.
Second, even if they had used Article 5 to justify dismissing Böhmermann's case instead of something that appears worryingly close to vice versa, it wouldn't have been a substantive objection. As I'm sure you know, Article 5, for reasons that warrant a post of their own, is a paper tiger that only rarely and inconsistently blocks insult prosecutions.
* You quibbled with my use of "indicted," so it's only fair that I quibble with you when you say you "doubt that anyone in German government wanted B. prosecuted!" He was prosecuted, and very publicly. It's just that the case was dismissed before it was brought to trial.
As to whether the federal government wanted him convicted, I don't care to speculate, but I'd say your take on what they were thinking is completely plausible. The federal government chose to dump the case in the Mainz prosecutors' laps, and the prosecutors used a constitutional excuse to get rid of it.
So I'm not seeing a lot of air between our views. You're saying prosecuting Böhmermann was sufficiently unpopular that the decision was reached not to put him on trial and convict him. So am I. If we disagree, it's only on how soon that decision was made and how much negative publicity was necessary.
Federalism is a much weaker force in Germany than it is in the States, and if the administration had put pressure on the Mainzers to drag him into court, I find it highly unlikely it wouldn't have happened. After all, historically, prosecutors have been more than willing to pursue Article 103 cases.
So however the decision to dismiss the case was arrived at, we agree that the reason it was such a "nuisance," as you put it, is that people heard all about it and hated it. That's on the media, including the foreign media.
Re: Re: Re: Indictment
With respect, I strongly disagree. Translating the legal parlance of a civil-law country into common-law terms is one of the biggest challenges in academia (outside STEM, anyway,) and compromises are often inevitable.
For example, consider the way the German government chooses to translate "Verbrechen" and "Vergehen," as "felony" and "misdemeanor" respectively. That's substantially accurate, in that it captures the spirit of both common-law concepts. But it's not completely accurate, because the word "felony" refers to a crime punishable by a maximum of a year or more in prison, while "Verbrechen" is statutorily defined as a crime with a mandatory minimum of a year behind bars.
Or take your own use of "pressing charges" for "Strafantrag." What Americans typically do by "pressing charges" is more similar to the German "Strafanzeige." But you get the point across, accurately and succinctly.
Finally, Article 185 belongs to a special subset of criminal offenses known as "Antragsdelikte," which, like I previously said, require that the aggrieved party file a Strafantrag before prosecutors can take over the case. Article 104(a) StGB imposes a substantially similar requirement on Article 103 cases, with the added caveat that the cabinet has to sign off on the prosecution before it can go forward.
These are meaningful hurdles that need to be overcome before the prosecution even gets to the Ermittlungsverfahren stage. That alone is enough to distinguish Böhmermann's case from other prosecutions where Ermittlungsverfahren are indeed routine. (There's always Section 153 in cases involving Vergehen charges.)
So, no, I think "prosecutors indicted" is wholly appropriate as a way to summarize what happened. A more technical text would require a more thorough explanation, in the style of this comments thread, and at 1500 words, my post's already beefy. But it's nice to run into someone who appreciates these difficulties.
Re: Some context
Ah, but did you like the translation?!
Re: Indictment
"Indicted" is a useful way to translate and compress several parts of German criminal procedure that don't have a direct equivalent in American law. For charges to be brought under Article 185, the aggrieved party has to lodge a formal complaint with the government notifying it that it wants the accused to be tried. This isn't an optional step: no complaint, no charges. Prosecutors can then either take up the case or decline under Section 153. Additionally, for an Article 103 prosecution to happen, you need the consent of the administration.
All these preconditions were met by the 15th of April. By this time, the government's formally taken up the case, though it has yet to formally announce the charges in an "Anklageschrift."
There's a step between these two events called a "Ermittlungsverfahren," the essence of which is that the government considers its chances of prevailing at trial. To that end, as here, it conducts an investigation. Prosecutors may also compel people, including the defendant, to appear before them and be interviewed, optionally with a lawyer present. (That's what reportedly happened to Böhmermann.) It's during this phase that the government decided not to proceed to trial and dismiss Böhmermann's case.
But because the intricacies of criminal procedure have nothing to do with the post, which is long enough as it is, "indicted" was fairly useful shorthand. It gives you a good idea of how much trouble he was in.
Re: Gern geschehen
If wishes were horses, beggars wouldn't get arrested for pissing off government functionaries.