Nachstellung under § 238 StGB: what penalty it carries and what protection the law provides

§ 238 Abs. 1 StGB presupposes three things. First, a person must pursue another person without authorisation. Second, this must happen repeatedly. Third, it must happen in a way that is capable of impairing that other person's way of life to a not inconsiderable degree. The wording requires that capability; it does not require that the person concerned has actually changed home or workplace.

The statute lists eight variants of the offence: repeatedly seeking physical proximity, attempts at contact by means of telecommunications or through third parties, the misuse of personal data to place orders or to induce third parties to make contact, threatening to injure life, physical integrity, health or liberty, offences under §§ 202a, 202b oder 202c StGB, the dissemination of images, the dissemination of degrading content while pretending that the person concerned is its author, and comparable acts.

The statute names no threshold in terms of a number of messages or a duration from which Nachstellung is present. Any such figure you come across does not come from § 238 StGB.

The criminal proceedings clarify whether a criminal offence has been committed. They do not directly protect against further contact. That is what the Gewaltschutzgesetz is for, and those are civil proceedings.

Under § 1 Abs. 1 GewSchG, the court takes, on the application of the injured person, the measures necessary to avert further injuries where a person has intentionally and unlawfully injured another's body, health, liberty or sexual self-determination. For this purpose the statute expressly names the prohibition on entering the home, on staying within a certain radius of the home, on going to certain other places, on making contact, including by means of remote communication, and on bringing about encounters. § 1 Abs. 2 GewSchG extends this to threats and to unreasonable harassment by repeated pursuit against the expressly declared will of the person concerned. Alongside this, § 2 GewSchG governs the assignment of a jointly used home; § 2 Abs. 3 Nr. 2 GewSchG excludes the claim where assignment is not demanded in writing within three months of the offence.

The competent court is the Familiengericht: Gewaltschutz matters are family matters (§ 111 Nr. 6 FamFG) and comprise the proceedings under §§ 1 und 2 GewSchG (§ 210 FamFG). On application, the court may make a provisional arrangement by einstweilige Anordnung (an interim order); an urgent need to act immediately is as a rule present where an act under § 1 GewSchG has been committed or where, on the basis of specific circumstances, it is to be expected that one will be committed (§ 214 Abs. 1 FamFG).

Breaching such an order is itself punishable: whoever contravenes a specific enforceable order under § 1 GewSchG is punished with imprisonment of up to two years or with a fine (§ 4 GewSchG). Police measures such as removing a person from the home are governed by Land law and are not the subject of this text.

A person injured by an offence under § 238 StGB may join the public charges brought as a Nebenkläger (a private accessory prosecutor) under § 395 Abs. 1 Nr. 4 StPO. Joining is admissible at any stage of the proceedings (§ 395 Abs. 4 StPO).

A lawyer is to be appointed as assisting counsel where the requirements of § 397a Abs. 1 StPO are met. For this field, number 3 comes into consideration, which presupposes a Verbrechen, the more serious of the two categories of criminal offence in German law, under §§ 238 bis 239b StGB among others, which has led or is likely to lead to serious physical or psychological harm; and number 5, which attaches to offences under § 238 Abs. 2 und 3 StGB among others and additionally requires that the injured person is not yet eighteen years old at the time of the application or cannot adequately look after their own interests. Where those requirements are not met, legal aid for the costs of the proceedings under § 397a Abs. 2 StPO comes into consideration.

Injured people may also make use of the support of a psychosozialer Prozessbegleiter (a psychosocial court companion) under § 406g Abs. 1 StPO. On the conditions of § 406g Abs. 3 StPO such a companion is or may be assigned; the assignment is free of charge for the injured person.

Must the person concerned have changed home or workplace? The wording of § 238 Abs. 1 StGB does not require that. It requires conduct that is capable of impairing the way of life to a not inconsiderable degree. Whether that capability is present is assessed by the court on the basis of the specific conduct.

Can I withdraw a report of Nachstellung? § 238 StGB does not provide for a Strafantrag. Prosecution is therefore decided on by the Staatsanwaltschaft, not by the person making the report. What weight a later statement carries is a different question; the proceedings are not brought to an end by it.

What does an order under the Gewaltschutzgesetz give me? It may contain prohibitions on entering, on being present and on making contact (§ 1 Abs. 1 GewSchG) and may be made provisionally by einstweilige Anordnung (§ 214 Abs. 1 FamFG). Breaching an enforceable order is punishable under § 4 GewSchG. The competent court is the Familiengericht, not the criminal court.

From how many messages onwards is it Nachstellung? The statute names no figure. § 238 Abs. 1 StGB requires repeated conduct and the capability of impairing the way of life to a not inconsiderable degree. The standard example of § 238 Abs. 2 Nr. 3 StGB attaches to a large number of acts over a period of at least six months; that is a provision for the particularly serious case and not a lower threshold of criminal liability.