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News: Criminal law – No consent in deprivation of liberty in case of deception about travel destination

written and translated by Ali Tahir Sen


§ 239 StGB (German Criminal Code) protects the potential will to move forward, which is the point of reference for consent that excludes the offense, so that a deprivation of liberty exists if consent obtained by trickery or deception results in a non-conscious deprivation of liberty. It is merely a means to make it easier to commit the deprivation of liberty by preventing the expected resistance of the person concerned, but does not lead to an exclusion of the fulfillment of the objective element of § 239 I StGB.


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This article was translated from German to English. Please excuse any errors that may have occurred and feel free to report them via the contact page.
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News: BGH - Kein Einverständnis in Freiheitsberaubung bei Täuschung über Reiseziel

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Defendants A, B, C – all family members of O – and D, a friend of B and C decided to take O first to Georgia and then to Chechnya in order to take her there “out of the line of fire” through a forced marriage and to bring her to a “way of life in accordance with Chechen traditions.” However, the defendants were aware that O would not voluntarily accept this trip. For this reason, they pretended to her that they would have to apply for Russian passports in person in Poland. In fact, they went by car to the airport in K and then flew to Georgia.

During the car ride, which lasted several hours, O sat in the middle of the back seat and was observed during short breaks in the ride, so she was in the immediate vicinity of the vehicle. In the event of an escape, the defendants would intervene. They were aware that O “in any case” could not move away during the drive, although O would have resisted if she had known the true plans and would have sought the distance or help of third parties at the next opportunity.

At the airport in K she was also accompanied by the defendants. These were to ensure that she did not draw attention to herself or ask for help if she realized the destination of the trip. However, O only realized after landing that she was not in Poland, but in Georgia.

Sentenced by the Berlin Regional Court to terms of imprisonment of between six months and one year for deprivation of liberty (among other things), the defendants appeal their convictions on the grounds of violation of substantive law.

These facts (and the following discussion) cover only a part of the facts of the judgment under discussion. There still follow (severe) bodily injuries, conspiracy to commit a crime of severe deprivation of liberty and other offenses. However, the focus of this episode (according to the guiding principles of the judgment) should be on the above facts.

The examination of a deprivation of liberty according to § 239 I StGB can be conducted according to the following scheme:

  1. Facts (ger. Tat­bestand bzw. Tatbestandsmäßigkeit)
    1. Objective facts (ger. Objektiver Tatbestand)
      1. Crime victim: Another person
      2. Act & success: interference with freedom of movement by (1) confinement (ger. Einsperren) or (2) in any other way
    2. Subjective facts (ger. Subjektiver Tatbestand)
  2. Illegality & Guilt (ger. Rechtswidrigkeit & Schuld)
  3. Qualification: § 239 III Nr. 1 StGB
  4. Qualification for success (ger. Erfolgsqualifikation): § 239 III Nr. 2 StGB
  5. Qualification for success: § 239 IV StGB

First, the BGH (judgment of 08.06.2022 – 5 StR 406/21) addresses the question of the extent to which § 239 StGB protects the potential personal freedom of movement, since O – in the absence of knowledge about the destination – had no current will to move. In accordance with its previous case law and parts of the literature, it states that the sole deciding factor is

[…] whether it is made impossible for him [the victim] to change his whereabouts at his own will. The only decisive factor is therefore whether the person concerned could move about without the impediment to his freedom of movement caused by the perpetrator, if he wanted to. Whether he realizes his restriction of freedom at all is therefore irrelevant.

BGH, judgment of 08.06.2022 – 5 StR 406/21 No. 20.

The BGH then addresses a differing view in the literature, which – in particular due to the introduction of attempted deprivation of liberty ( § 239 II StGB) by the Sixth Criminal Law Reform Act of January 1998 (BGBl. I p. 164) – only assumes protection of the current freedom of movement. This is argued on the grounds that it is not (any longer) justified to bring forward the time of completion, so that according to this view there is no (completed) deprivation of liberty.

However, the BGH does not follow this view and states:

The Senate sees no reason to deviate from the previous interpretation of the crime of deprivation of liberty (§ 239 StGB) by the BGH. […] The wording of the norm speaks for the relevant determination of the protected legal interest. From an objective point of view, a person is deprived of his or her freedom (of movement) if he or she cannot move away due to the behavior of a third party if he or she wanted to do so. A bending of the will perceived as coercion is not inherent in the concept of deprivation of liberty in objective terms. […] The victim of a deprivation of liberty can therefore not only be the person who is determined to remain in a place against his actual will […].

BGH, judgment of 08.06.2022 – 5 StR 406/21 No. 22.

In addition to the wording, according to the BGH, systematic considerations also speak for the protection of the potential freedom of movement. This applies in particular in distinction to coercion:

With the high good of the personal freedom of movement […] which has gained even more weight by the introduction of the punishability of attempts […] , it would not be consistent to treat the deprivation of liberty as a mere special case of the more mildly sanctioned coercion. Rather, it is an independent offense with its own prerequisites, which should comprehensively protect the individual from the deprivation of his freedom of movement […]. The offense of deprivation of liberty ( § 239 StGB) weighs according to the will of the legislator expressed in the respective penalty ranges more seriously than the coercion (§ 240 StGB) and stands in the criminal code before it. This could hardly be reconciled with the classification as a mere special case of § 240 StGB.


BGH, judgment of 08.06.2022 – 5 StR 406/21 No. 24.

Also due to the introduction of attempted deprivation of liberty, the BGH sees no reason for a different interpretation. According to the BGH, “the comprehensive protection under criminal law against the deprivation of freedom of movement would not be guaranteed as a result”. The BGH also states that a scope of application also remains for the attempted deprivation of liberty and illustrates this with an example:

[…] If the perpetrator lures the victim into a room in order to lock him in, he is liable to prosecution for a (failed) attempt to deprive him of his liberty if he does not succeed in locking him in, for example, because he does not have a suitable key or because the victim resists. In addition, cases of criminal liability due to unsuitable attempt remain are conceivable.

BGH, judgment of 08.06.2022 – 5 StR 406/21 No. 25.

Examination notice
The question of whether the potential will to move is protected by § 239 StGB is a standard case with high relevance for exams. The Sixth Act on the Reform of Criminal Law has once again fueled this discussion. In terms of exam tactics, however, it is recommended to follow the view of the BGH with the arguments listed above – otherwise the examination of attempted deprivation of liberty is required.

The BGH then addresses the question of whether consent precluding an offense exists and first establishes what consent is required in relation to and how consent obtained by trickery or deception affects this.

[…] The point of reference for consent to a deprivation of liberty within the meaning of § 239 StGB that excludes the offense is the potential will to move. It is therefore necessary that the person affected by the deprivation of liberty and the depriver of liberty agree on the extent and duration of the deprivation of liberty […]. An agreement of the person concerned to a deprivation of liberty of which he is not aware, which is obtained by trickery or deception, is thus merely a means to make it easier to commit the deprivation of liberty by preventing the expected resistance of the person concerned, which cannot lead to an exclusion of the objective elements of the crime of § 239 I StGB […].

BGH, judgment of 08.06.2022 – 5 StR 406/21 No. 28.

After the BGH establishes that there is no consent that excludes the offense, it (finally) addresses the question of whether O was (continuously) deprived of her potential freedom of movement within the meaning of § 239 I StGB.

In agreement with the Berlin Regional Court, the BGH affirms this in view of the seating position of O between the defendants for the car ride and, due to the continuous guarding, also for the short breaks during the ride and at the airport. Unproblematically, there is a deprivation of liberty during the flight. The BGH denies a disruption due to the breaks and at the airport, which was asserted in the appeal, and establishes a deprivation of liberty from the start of the car journey to the end of the flight.

With regard to the subjective element of the offense, the BGH states:

In particular, the defendants […] knew that the injured party “in any case” could not move away during the car trip and did not resist the trip only because of the deception.

BGH, judgment of 08.06.2022 – 5 StR 406/21 No. 33.

As a result, the appeals against the judgment are dismissed.


Further references (German only):

Offenses against personal freedom, §§ 232 – 241a StGB (orig. Die Straftaten gegen die persönliche Freiheit, §§ 232 – 241a StGB): Schroeder, JuS 2009, 14 ff.

Crimes against personal liberty in the criminal law exam exam (orig. Die Straftaten gegen die persönliche Freiheit in der strafrechtlichen Examensklausur), Eidam, JuS 2010, 869 ff.

Practical cases: Putzke, ZJS 2011, 522 ff. (exam), Singelnstein, ZJS 2012, 229 ff. (exam), Sebastian/H. Lorenz, ZJS 2017, 84 ff. (Beginner’s term paper).


written and translated by Ali Tahir Sen


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