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There are only a few significant judgments in recent German legal history, in which nudity has been classified as an regulatory offence. The case of the "nude jogger in Freiburg", Dr. Peter Niehenke, has put his name on the map.

The complete reasons given for the judgment (in German) as PDF file, published and highlighted by Peter Niehenke.

Cit.: "This [the existence of an administrative offence, insert. by the author] is, according to the case-law of the ordinary courts, which are responsible for the interpretation of the prescriptions of fines, the case, when the sense of shame and decency of those, who are unintentionally confronted with alien nudity, is affected in a lasting way, as in the presentation of an unclothed human body on public streets and squares is basically the case without the need for the gender determining body parts alone." (Higher Regional Court Karlsruhe, NStZ-RR 2000, 309 ff.).

It is noteworthy, that the judgment mentions the "presentation of an unclothed human body", although Niehenke did not present himself, but jogged on the road and witnesses could not even make reliable statements, whether and how he was dressed in the genital area – so fast he had passed.

It is also noteworthy, that the {reference of the Federal Republic to the Christian religion (cf. "Preamble") and values and norms established there have not been taken into account in the proceedings of that case – after all, according to Catholic social ethics, simple nudity is not even indecent, that is certainly not offensive or grossly offensive. Consequently, it would not have been possible, to recognise an administrative offence according to section 118 of the Act on Regulatory Offences.

Third, the explicit mention of "public streets and squares" is noteworthy.

Cit.: "According to the findings made, the 52-year-old person went through Freiburg (city centre and outdoor area) and Umkirch in a total of six cases between February and October 2001." So, the case concerned nudity in built-up areas, not nature-conscious hiking in the open air, in nature parks or nature reserves.

Cit.: "It was also irrelevant, whether passers-by actually felt disturbed." This is a confirmation of the Higher Regional Court, that the feelings of one or more persons are irrelevant for the fulfilment of the facts of an administrative offence. But this is also directly inferred from the legal text, which mentions the "disturbance of the public".

We would like to take a closer look at the following point from the judgment of the Higher Regional Court of Karlsruhe, to which today numerous subordinate assessments and administrative instructions refer:

The reasons given for the judgment mention, that "the sense of shame and decency of those, who are unintentionally confronted with alien nudity, is affected in a lasting way". Every decent person looks into the face of the fellow human being – and (s)he does not even notice or pay attention to his possible nudity. Only naturist beginners and voyeurs look first onto the genital organs, instead of into the face of other people. Not the nude hiker is indecent, but the voyeur, who encounters her / him, and who can not resist his prying eyes.

The reasons given for the judgment from 2000 also mention: "The views on, whether the sense of shame of the public is affected in this spirit, are of course prevailing and thus subject to change. But the case law is not based upon the views of particularly prude or extraordinary broadminded circles (BGHSt 3, 295; 23, 40 ff.)…" At that time, the court did not seem to have the cause, to assume a change in opinions as to the sense of shame and to allow it to enter into the reasons given for the judgment. In 2017, there is in contrast the fact, that naturists hike in Germany every year in the region of 50,000 km of individual kilometres in the nude, and that numerous television reports and newspaper articles have reported since 2008 on the custom of nude hiking, so that this quite familiar for a broad public.

The presiding judge Henninger retired some time after this judgment.

At that time, it was already widely known among lawyers, that a judgment like this was no longer conceivable in the world of law.

 

The Higher Administrative Court Baden-Württemberg states: "Both the genitals and the buttocks of a human belong to the human pubic area, which must not be shown at any time and in any place in public."

However, according to the opinion of the Higher Administrative Court Baden-Württemberg, there are certainly times and places, where the genitals and the buttocks may be shown in public. Most likely, the judges have meant, among other things and in particular, nature parks and nature reserves, i.e. places where nature – and therefore human nature – is under explicit protection.

Thus, our approach to hike, to cycle, or to jog in the nude outdoor, in nature parks and nature reserves, is according to the judgment of the Higher Administrative Court Baden-Württemberg not subject to section 118 of the Act on Regulatory Offences.

It should be noted right here, that there have been demands and resolutions in politics for years to completely abolish section 118 of the Act on Regulatory Offences – for obvious inanity. Justification: All persecutory offences, which are worth to be prosecuted, are completely covered by section 183 of the Penal Code. Indeed, the legislative implementation is still pending.

Note: Whether in individual cases an administrative offense does exist or not, decides the court having jurisdiction. The assessment by police officers or a regulatory authority on the existence of an administrative offence is legally effective, only, if the person concerned accepts it.