This is because judicial arbitrariness can take different forms. Certainly, one form is taking over the legislative functions. Another form, though, may be found in judicial reasoning per se, namely the arguments that courts use for interpreting criminal liability. To illustrate this, a case will be presented where a judicial interpretation was declared to be in violation of lex stricta. This case is a landmark German judgment on the principle of legality.
The Sitzblockaden case was about the interpretation of Article 240 GCC, which criminalises coercion and it includes the term „force”(Gewalt). The question was whether „force” referred to psychological as well as physical force. Participants in a sit-in demonstration were regarded as exercising psychological force over the driver of the truck who supplied a nuclear plant. Here the grammatical interpretation would suggest that also psychological force fall within the scope of criminalisation, as the provision only mentions the term ‘force’ without any further distinction. Yet the German Constitutional Court concluded that interpreting psychological force as coercion would be an arbitrary interpretation and, thus, against the principle of legality. What is interesting about this case is that the German Constitutional Court did not come to this conclusion by using the prohibition of analogy. It rather argued that the interpretation of the conflicting rights followed by the lower court was irreconcilable with the will of the legislator and the German legal order in general.
With subtlety, the German Constitutional Court adopted a ‘rights-conception’ to the legality principle similar to the ECtHR by focusing on the concept of foreseeability and how this would be influenced by judicial interpretation. It explored possible interpretations in the light of the specific situation at hand and weighed the right to foreseeable criminalisation of passive acts of intimidation during demonstrations against the purpose of the criminal provision. It found that the right to foreseeability outweighs the obligation to protect individuals from emotional coercion in the specific context of the German society. The claim to foreseeability in this case was successful because criminalisation of psychological force would create chaos in future cases. The norm would become so broad that it would be impossible to predict what intimidating act would be coercive for the purpose of criminalisation. It would create confusion regarding permissibility of acts during demonstrations and also other situations, involving intimidation at work or school. (s.n. – M.M.-B.)
(The Principle of Legality in European criminal law, ed. Intersentia, decembrie 2015, la pp. 110-1)