Should arson be decriminalized


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I. The criminal sanction system of German criminal law

1. Criminal law and punishment in transition

The substantive criminal law, which regulates the prerequisites for criminal liability and the consequences of criminal offenses, is in the penal code (StGB), in the main criminal law laws (juvenile court law, military criminal law) and in numerous ancillary laws (e.g. tax code, narcotics law, law against unfair competition, road traffic law, copyright law, weapons law ) regulated. Quantitatively, the criminal offenses of the StGB dominate the picture of criminality and the practice of sanctioning, because the vast majority of all convictions are for crimes and offenses of the StGB. For example, 780,530 people were convicted in 1997, 79.2% of them in accordance with the German Criminal Code, a further 6.7% related to traffic offenses under the Road Traffic Act, and 14.1% to ancillary criminal law.

The current StGB goes back to the penal code for the German Reich of 1871. Due to a redefinition of the relationship between citizen and state as a result of the emphasis on constitutional and human rights limits of criminal law, the traditional conceptions of criminal law and crime have changed fundamentally. With Jescheck (Introduction, in: dtv-Textausgabe StGB, 32nd edition, 1998, p. XII f.) The result of this change can be described as follows: "The realization that criminal law is only one means of social control alongside others and should be used as sparingly as possible because of the deep encroachments on freedom, reputation and income of those affected, and because of the resulting social disadvantages, has largely prevailed. At the same time, the diverse ideological attacks on all repressive institutions of the state as a counter-effect The conviction has grown that only a criminal law based on the principle of guilt enables the protection of the general public in freedom, because only such a right regards people as responsible citizens by appealing to their insight and discipline through command and sanction, but also making them serious Also the need to restrict criminal law by the principles of the rule of law and the recognition that not everything that appears appropriate for the treatment of lawbreakers is also just, have become common property today. One is also gradually beginning to understand that humanity as the basis of criminal policy is no longer just a matter of the idealism of individuals who take up this matter out of compassion, but also a question of society's shared responsibility for crime, and that concern for the lawbreaker is not a grace, but a binding mandate of the welfare state. Finally, the administration of criminal justice itself is no longer understood much more than before, not only as an instance for the realization of justice, but also as a social task which, through the way it is carried out, is intended to give the offender a helping hand in life. The effectiveness of the administration of criminal justice is seen not so much in the statistical evidence of successes in the rehabilitation of criminals as in an embodiment of the entire criminal law activity of the state, which can be reconciled with the heightened social conscience of our time. The latest development in crime has of course also shown the understanding general public that in order to combat violent crimes, sexual crimes, especially against children, arson at asylum seekers 'and foreigners' homes, the occurrence of armed thugs, burglary in homes and organized crime, imprisonment and custodial measures must be fully implemented without losing sight of the rehabilitation task of the prison system. The basic mood of the population is beginning to turn in the direction of a tightening of criminal policy and the major political parties seem to be joining in. "

The two central constitutional principles, the rule of law and the welfare state principle, were the guiding principles for the design of the sanction system.

  • The principles of appropriateness of the means, proportionality and the principle of subsidiarity, which are central to criminal law, are derived from the rule of law. These guiding principles of rational criminal law are not only decisive for the question of whether and to what extent behavior should be criminalized, but also for which sanctions are threatened. If suitability and necessity determine the use of the punishment, then not every culpable realization of the facts necessarily leads to punishment - limited by the degree of guilt - as was a matter of course for retaliatory criminal law: "Where punishment is not necessary, can, where it is harmful, must be waived "(Schäfer, Gerhard: Praxis der Strafzumessung, 2nd edition, Munich 1995, No. 4). According to this, criminal law is not only the last resort in the legislature's instruments, but with its sanctions must also be a suitable means of achieving the legislative purpose, whereby the constitutional requirement of meaningful and moderate punishment must be observed.
  • The welfare state principle requires the community to provide "state provision and welfare for groups in society who are hindered in their personal and social development due to personal weakness or guilt, incompetence or social disadvantage" (BVerfGE 35, 202, [235]). The (re-) socialization goal of criminal law follows from the constitutional recognition of human dignity and the principle of the welfare state. The importance of this principle is not limited to the determination of the enforcement objective and the design of a (treatment-oriented) enforcement, but rather shapes the design of the criminal sanction system as a whole.
The change in the understanding of the tasks of criminal law corresponds to the fact that the law of sanctions has undergone far-reaching changes and additions. On the one hand, the system of penalties serving to compensate for guilt was supplemented by a "second track", the system of measures of reform and security. Second, in line with the insight that criminal law can only be the last resort, criminal law has been decriminalized in terms of substantive law, but above all in terms of procedural law. Thirdly, the penalty system itself was fundamentally changed in order to bring it into line with the basic concept of criminal policy.

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2. An overview of the sanctions law reform

2.1 Decriminalization

2.1.1 Substantive and procedural decriminalization

The German legislature has taken into account the demand for decriminalization as an expression of the ultima ratio idea, on the one hand by a substantive and on the other hand by a procedural decriminalization.

  • The substantive legal solution consists in the fact that numerous violations of the law of minor importance are not punished, but instead punished as administrative offenses with a non-criminal fine under the Administrative Offenses Act (OWiG). The classic three-way division of the RStGB into crimes, offenses and offenses was abolished on January 1, 1975 and replaced by the dichotomy of crime and offense. The previous violations were partly upgraded to offenses, but mostly downgraded to administrative offenses. Administrative offenses characterize socially undesirable behavior that disrupts social life, but which is not so significant that it should already be regarded as punishable and subject to punishment. No criminal penalties can be imposed for administrative offenses, only fines (§§ 17 et seq. OWiG).
  • The procedural solution consists, on the one hand, of restricting the public prosecutor's duty to prosecute by means of the principle of opportunity, according to which the prosecution in certain cases is responsible for the discretion of the public prosecutor (the court was also given the opportunity to refrain from a conviction and to discontinue the proceedings) others in the criminal complaint requirement in the area of ​​minor crime. The legislature assumes that such cases usually do not lead to a criminal complaint, but are dealt with under civil law or out of court.
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2.1.2 Decriminalization under procedural law by restricting the principle of legality

In the Imperial Criminal Procedure Code of 1877, the principle of legality (compulsory prosecution and prosecution for the public prosecutor) was recognized almost without exception. It formed the procedural correlate to the then prevailing idea of ​​retaliation, according to which the state had to punish every crime in order to achieve absolute justice. With the gradual advance of general and special preventive views, which linked punishment to its social necessity and expediency with regard to crime prevention and relapse prevention, the principle of legality lost a large part of its original justification. Because it called for criminal prosecution even in those cases in which a punishment was neither necessary nor advisable to deter potential perpetrators or to influence the respective perpetrator, even if a punishment seemed counterproductive to achieve the goal of legal probation.

For the first time in the JGG of 1923, the principle of legality was restricted, based on special preventive assumptions. In the juvenile court laws of 1943 and 1953, these recruitment options (principle of subsidiarity) were further expanded. Through the EGStGBÄndG of 1974, adolescents were also included in the scope of Sections 45, 47 JGG.

In general criminal procedural law, the principle of legality was restricted for the first time by the Emminger Ordinance of 1924 - named after the Minister of Justice at the time. Since then, the legislator has continuously expanded the opportunity principle. Overloading with petty offenses, flexibility of procedural decriminalization, avoidance of stigmatizing accompanying damage made this "informal option" (diversion) attractive also in general criminal law. The EGStGB of 1974 with § 153a StPO created the possibility for the first time in general criminal law to discontinue criminal proceedings if conditions or instructions are fulfilled. Most recently, the provisions of §§ 153 ff. StPO were expanded again by the Discharge Act of 1993, thereby "giving practice the opportunity to refrain from filing public charges against conditions and instructions even in the area of ​​medium-level crime" (reason for Draft of a law to relieve the administration of justice dated September 27, 1991, BT-Drs. 12/1217, p. 34).

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2.2 Reform of the criminal sanction system

2.2.1 Reform of sanctions law in the Criminal Code

The legal-philosophical basis of the Criminal Code for the German Reich (RStGB) of 1871 was determined by the strict retribution idea of ​​the philosophy of Kant and Hegel, which was placed in the service of general prevention. Aspects of special prevention were hardly taken into account. The system of sanctions consisted of the death penalty, as well as four different types of imprisonment, graduated according to their severity (penitentiary, prison, imprisonment [from 1953: confinement] and imprisonment) and the fine. The main focus of the penalty system was on imprisonment. The RStGB did not contain any measures, it knew no suspension of punishment and otherwise hardly offered any possibilities for a rehabilitation effect on the offender. Under the influence of the modern school of criminal law, which advocated a preventive-oriented criminal law, the RStGB was gradually redesigned.

The most important intermediate steps up to the fundamental reorganization of the sanction system through the 1st and 2nd Criminal Law Reform Act of 1969 were:

  • the extension of the scope of the fine in the years 1921-1924,
  • the creation of a special juvenile criminal law (JGG) in 1923, through which the age limit of criminal responsibility was raised from 12 to 14 years and young offenders aged 14 to under 18 were removed from general criminal law,
  • the 1933 - in accordance with an old requirement of the modern school of criminal law - the introduction of the measures of security and reform, through which prevention needs, which cannot be satisfied with the retaliatory punishment alone, are to be met,
  • the abolition of the death penalty by Art. 102 of the Basic Law (GG) of May 23, 1949,
  • the introduction of parole and parole in general criminal law in 1953 and its reintroduction in juvenile criminal law, finally
  • the 1953 inclusion of 18 to under 21 year olds (adolescents) in juvenile criminal law.
The current structure of the sanction system of general criminal law is largely shaped by the 1st and 2nd Criminal Law Reform Act of 1969 and the EGStGB of 1974. "In the new regulation of the sanction system, the current law with the transition from imprisonment to fines is by far the most common type of punishment at a similarly significant turning point, as it once was the transition from the physical and life punishments of the Middle Ages to the prison sentence of the Enlightenment period "(Jescheck, in: Leipziger Commentary, 11th edition, Berlin / New York 1992, introduction, marginal number 93 ). "In particular through the two criminal law reform laws, among other things," the modern design of the sanction system as a suitable instrument of criminal policy with the aim of preventing future crimes, above all through rehabilitation of the offender "(First Written Report of the Special Committee for the Reform of the Criminal Law, BTDrs. V / 4094, P. 3)
  • the replacement of the various types of custodial sentences with (standard) custodial sentences (Section 38 of the Criminal Code),
  • increasing the minimum imprisonment sentence from one day to one month (Section 38 (2) StGB),
  • the suppression of the criminally undesirable short prison sentence of less than six months in favor of the fine (Section 47 of the Criminal Code),
  • the extension of the scope of the suspension of sentences for probation to imprisonment of up to two years (Section 56 StGB)
  • the conversion of the fine to the daily rate system (Section 40 StGB) and
  • the introduction of the legal institutions of warning with reservation of punishment (§ 59 StGB) and the refusal of punishment (§ 60 StGB).
The core of the criminal policy program was the sustained restriction of the short term of imprisonment, viewed as hostile to rehabilitation, which "in future will only be imposed and carried out in a very narrow and criminal-politically justifiable area" (First written report of the special committee for criminal law reform. BT-Drs. V / 4094, p. 6) should be. This was associated with the expectation of sustainably relieving the penal system and thus creating the actual prerequisites for its reform in the first place (first written report of the special committee for criminal law reform. BT-Drs. V / 4094, p. 11). The main punishment of the present time should be the fine, the scope of which should be light and medium crime. In connection with the sentencing regulation of § 46 StGB, the criminal law reform of 1969 significantly strengthened the idea of ​​special prevention and brought it to the fore.

The Federal Court of Justice has summarized this basic criminal policy concept as follows: "According to the overall criminal policy concept on which the criminal law reform is based, the imposition of short and medium-sized prison sentences should generally be dispensed with .... The term 'defense of the legal order' is used in this respect Delimitation of the exceptional cases in which this is not possible.Its interpretation can therefore only be based on the criminal policy considerations on which the regulation made in §§ 14, 23 StGB (now: 47, 56 StGB - by the author) is based.
The 1st Criminal Law Reform Act is based on the idea that punishment does not have the task of settling guilt for its own sake, but is only justified if it also proves to be a necessary means of fulfilling the preventive protective task of criminal law. The legislature has set a significant accent by including the special preventive clause as the goal of the sentencing process in Section 13 (1) Sentence 2 of the Criminal Code (now: Section 46 (1) of the Criminal Code by the author). The fact that the law uses the punitive purpose of general prevention in contrast to the multiple mention of the idea of ​​social adjustment (Section 13 Paragraph 1 Sentence 2, Section 14 Paragraph 1, Section 23 Paragraph 1 StGB) (now: Section 46 Paragraph 1 Sentence 2, Section 47, Paragraph 1, Section 56, Paragraph 1 of the Criminal Code - by the author), reveals a significant shift in focus to the special preventive point of view in the broadest sense for the assessment of the sentence.This principle of 'individualization' is not only about the targeted action on an already desocialized offender, who should achieve conviction and meaningful execution (resocialization), but also about avoiding unintended side effects of conviction and execution, such as the risk that the Punishment pulls a perpetrator who has hitherto been sufficiently socially integrated out of the social order. The execution of sentences should not be limited to senseless sitting down, but rather treatment should be in the execution.
In principle, therefore, the fine takes precedence over the custodial sentence and the suspension takes precedence over the execution, insofar as this is permitted by the protection of legal interests in view of the expected criminal policy effectiveness. The short term of imprisonment is therefore only provided as an exception, its execution only in very special circumstances (§§ 14 Abs. 1, 23 Abs. 1 StGB) (now: § 47 Abs. 1, § 56 Abs. 1 StGB - by the author .). Above all, the increased implementation of an 'outpatient' treatment of the perpetrator in freedom is sought, which should be meaningfully structured through instructions. This aim is served by the extension of the possibility of a suspension of punishment by increasing the time limit, the simplification of the prognosis and the elimination of the formal preconditions for exclusion (cf. Section 23 (3) StGB old version). The suspended sentence is a modification of the execution of sentences. The new legal regulation, however, makes their independence in the sense of a special 'outpatient' type of treatment clear, even if it is limited to a mere discount for certain groups of perpetrators. Their time limit is determined regardless of the nature of the offense (§ 1 StGB) according to the amount of the recognized punishment, so that prison sentences imposed for crimes can also be suspended. If the social forecast is good, the execution of prison sentences of less than six months must always be suspended; Even in the case of imprisonment from six months to one year, suspension is usually mandatory, unless the 'defense of the legal order' precludes this "(BGHSt 24, 40 [42 et seq.]).

In their interim reports so far, the German Federal Government and the German Bundestag have seen no reason to "fundamentally change" this system created by the 1st and 2nd StrRG (cf. the response of the Federal Government to a major question regarding the further development of the criminal sanction system [ BT-Drs. 12/3718] of November 12, 1992); only a few cautious developments and - as a reaction to new forms of crime - some additions to the sanction system have so far been considered necessary.

  • In 1981, the remainder of the suspended sentence was introduced for probation even in the case of life imprisonment (Section 57a ​​of the Criminal Code), and the requirements for averting the enforcement of the substitute custodial sentence, which takes the place of an uncollectible fine, through charitable work (Art. ) revised.
  • Reparation and offender-victim compensation were significantly upgraded in 1986 by explicitly mentioning perpetrator-victim compensation as a sentencing fact (Section 46 (2) of the Criminal Code).
  • In 1994 perpetrator-victim compensation and damage reparation were designed as an optional provision to mitigate punishment; in cases of minor crime, punishment can even be waived (Section 46a of the Criminal Code).
  • The new forms of sanction introduced in 1992 were property penalties (Section 43a of the Criminal Code) and the extended forfeiture (Section 73d of the Criminal Code) in order to be able to skim off profits from criminal offenses in the case of certain offenses that are typical for organized crime.
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2.2.2 Reform of the law on sanctions in the JGG

Juvenile criminal law, which had a "pacemaker" or "pioneering function" for general criminal law in terms of testing special preventive concepts, was introduced in the 1980s through a "reform through practice" (cf. BMJ [Hrsg.]: Jugendstrafrechtsreform durch die Praxis, Bonn 1989) further developed: New outpatient measures (perpetrator-victim compensation, care instructions, social training course, work instructions) were tested, models to avoid pre-trial detention were developed, the concept of diversion, ie the "diversion" of the offender to the formal criminal procedure and the conviction, became implemented to a large and growing extent. The norms of juvenile justice were flexible enough for this reform. In 1990 the legislature wrote this reform through the first law amending the JGG (1. JGGÄndG) and placed it on a secure basis. In particular, it clarified the associated criminal policy concept: "Recent criminological research has shown that crime in adolescence is mostly is not an indication of an educational deficit, but predominantly subsides as a developmental abnormality with entry into adulthood and does not recur. A formal conviction of young people is therefore necessary in far fewer cases than the legislature of 1953 still considered necessary.
Studies on the question of the extent to which the waiver of a formal sanction in favor of an informal settlement is of significance from a criminal policy point of view - at least for the area of ​​light and medium juvenile delinquency - has led to the realization that informal settlement is a cheaper, faster and more humane way of coping juvenile delinquency is also more efficient in terms of crime policy with regard to prevention and the avoidance of relapse.
It has also been shown that the new outpatient measures that have been tried and tested in many ways (care instructions, social training courses, perpetrator-victim compensation) can largely replace traditional sanctions (fines, youth arrest, youth punishment) without increasing the risk of relapse.
After all, it has long been known that the inpatient sanctions of juvenile criminal law (juvenile arrest and juvenile punishment) as well as pre-trial detention can have harmful side effects for the development of young people "(Government draft of a first law amending the juvenile court law [BT-Drs. 11/5829], 1) The legislature thus remained committed to a tradition of progress, as the former Federal President of the Federal Republic of Germany once put it: "If there is a tradition of progress in criminal law, then it is primarily at home in juvenile criminal law. In the case of delinquent and neglected young people, the irrationality of a criminal justice system that accepts senseless hardship for the sake of metaphysical speculations has always been particularly striking "(G. Heinemann, preliminary remark, in: Simonsohn [ed.]: Juvenile crime, criminal justice and social pedagogy, Frankfurt aM 1969, 5).

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3. The current sanction system of the StGB and the JGG

3.1 The current system of criminal legal consequences in general criminal law
Figure 1: Consequences under criminal law (according to StGB)

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3.1.1 Refraining from punishment

According to Section 60 of the Criminal Code, the court waives punishment if the act, e.g. a drunk driving with serious consequences for the offender or a close relative, had such serious consequences for the offender that the imposition of a punishment would be "obviously wrong". In these cases, the guilt has already been partially offset by the serious consequences, so that there is no longer any need for prevention.

Furthermore, punishment can either be completely or mitigated if the perpetrator "in an effort to achieve a settlement with the injured party (perpetrator-victim settlement), completely or predominantly made amends for his act or has seriously sought compensation" ( Section 46a No. 1 StGB). Punishment can also be waived if the perpetrator has compensated the victim in full or for the most part by means of "considerable personal services" or a "personal waiver" (Section 46a No. 2 StGB).

In contrast to these two groups of cases, in which the need for punishment is reduced, the StGB provides in a number of additional provisions the possibility of a guilty verdict without punishment in case groups in which the criminality is very low, because either the injustice of the crime and / or the guilt of the perpetrator is greatly reduced (e.g. Sections 139 (1), 174 (4) StGB; Sections 113 (4), 157 (1) and (2) StGB; Section 129 (5) StGB).

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3.1.2 Warning with reservation of punishment

According to Sections 59-59c StGB, the court can, under certain conditions, combine the guilty verdict of the perpetrator with a warning and determine a fine, which, however, remains reserved. So there is a suspensive sentence (§ 59 StGB). The court sets a probationary period, it can issue conditions and instructions, e.g. a restitution condition, the condition to pay a sum of money in favor of a charitable institution or the state treasury or the instruction to undergo outpatient treatment (Section 59a StGB). If the perpetrator proves himself, the warning remains; the perpetrator is thus spared not only from the execution of the sentence, but also from being sentenced to punishment (Section 59b (2) StGB). If he fails to do so, the court can sentence him to the reserved penalty (Section 59b (1) of the Criminal Code).

Guilty verdicts, warnings and the conditions and instructions have a sanctioning character. However, it is not a punishment, because it is reserved.

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3.1.3 Penalties Main Penalties

In the area of ​​penalties, the StGB differentiates between main and secondary penalties. The main punishments are imprisonment (Sections 38, 39 StGB) and fines (Sections 40-43 StGB). The driving ban (§ 44 StGB) is designed as a secondary penalty and - as a special type of secondary penalty - the property penalty (§ 43a StGB).

Back to overview Imprisonment

The (uniform) custodial sentence can either be early or lifelong.

Life imprisonment is threatened partly as absolute (murder [§ 211 StGB], genocide [§ 220a StGB]), partly as an optional sanction (e.g. when preparing for a war of aggression [§ 80 StGB], high treason [§ 81 StGB], particularly serious manslaughter [Section 212 (2) StGB], robbery resulting in death [Section 251 StGB], arson resulting in death [Section 306c StGB], predatory attack on drivers resulting in death [Section 316a (3) StGB]). After the abolition of the death penalty, life imprisonment is the heaviest punishment under German criminal law. The Federal Constitutional Court has affirmed the constitutionality of the absolute threat of punishment for murder, but has called for a restrictive interpretation of the murderous offense and a legal regulation of the remainder of the sentence (BVerfGE 45, 187). In 1981, in compliance with constitutional requirements, Section 57a ​​of the Criminal Code allowed the remainder of the sentence, including life imprisonment, after serving a sentence of 15 years.

The early imprisonment is a minimum of one month and a maximum of 15 years (Section 38 (2) StGB). Within this general framework, the maximum and minimum penalties are determined by the penalties for the criminal offenses and thus the rank of the legally protected legal interests is taken into account. The short imprisonment sentence (less than six months) is the ultima ratio compared to the fine (§ 47 StGB). It may only be imposed "if special circumstances, which lie in the act or the personality of the perpetrator, make the imposition of a custodial sentence indispensable to act on the perpetrator or to defend the legal system." Otherwise a fine can be seen.

The execution of a prison sentence not exceeding two years can be suspended on probation; German law does not recognize a partially conditional prison sentence. In the case of sentences of less than six months, in accordance with Section 56 (1) in conjunction with (3) StGB, the only decisive factor is the favorable social prognosis, i.e. the expectation that the likelihood of recidivism if enforcement is suspended (if necessary with the order of probation measures, namely under the influence of a probation officer) will be lower than when the prison sentence is being carried out (comparative intervention prognosis). In the case of sentences between six months and one year, the enforcement is not suspended, even if the forecast is favorable, if general preventive necessities ("defense of the legal system") are in conflict (Section 56 (3) StGB). Penalties of between one and two years can be suspended "if, after an overall assessment of the offense and personality of the convicted person, there are special circumstances" (Section 56 (2) StGB). In the event of a suspended sentence, a probation period of between two and five years is set (Section 56a of the Criminal Code), although this period can be extended or shortened retrospectively. Conditions and instructions can be given to the convicted person. Conditions, such as compensation for damages, payment of a sum of money to a non-profit organization or the state treasury, serve "the satisfaction for the injustice committed" (§ 56b StGB). Instructions serve the sole purpose of preventing future crimes by the convicted person. As such, submission to the supervision and guidance of a probation officer (Section 56d StGB) comes into consideration; Further examples of instructions are "orders to be followed that relate to residence, training, work or leisure time or the order of one's economic situation", not possessing certain objects, which can offer the opportunity or incentive for further criminal offenses, or to fulfill maintenance obligations (Section 56c StGB). If the convicted person does not meet the expectations associated with the suspension on probation, e.g. due to another relevant offense, either the conditions of the suspension are modified (Section 56f (2) StGB) or, if this is not promising, revocation suspension (Section 56f (1) of the Criminal Code) with the result that the imposed prison sentence must now be carried out. Otherwise the penalty, i.e. the imposed prison sentence, is waived (Section 56g StGB).

In the case of both early and life imprisonment, it is possible to suspend the execution of a remainder of the sentence on probation (Sections 57, 57a of the Criminal Code). If the person convicted of early imprisonment has served two thirds of the imposed sentence, but at least two months, his conditional release is mandatory if the prognosis is favorable (if "this can be justified taking into account the security interests of the general public") (Section 57 (1) StGB); if he has served half of the sentence, but at least six months, conditional release is optional if "special circumstances" exist (Section 57 (2) StGB). In accordance with the demand of the Federal Constitutional Court that those sentenced to life imprisonment must also have a chance to lead a life in freedom again (BVerfGE 45, 187), the suspension of the remainder of the sentence in the event of life imprisonment was standardized in Section 57a ​​of the Criminal Code. The prerequisites are the serving of at least 15 years of the sentence, furthermore that the "special gravity of the guilt of the convicted person does not require further enforcement" - to be determined by the judging court (BVerfGE 86, 288) and that finally a favorable prognosis within the meaning of p. of Section 57 (1) StGB is available. The convicted person must consent to the suspension of the remainder of the sentence, both early and life imprisonment.

Back to overview Fine

The fine is imposed in daily rates (Section 40 of the Criminal Code), i.e. the number of daily rates (Section 40 (1) of the Criminal Code) is initially determined in accordance with the general criteria for the assessment of punishment in Section 46 of the Criminal Code. Then the amount of a daily rate is determined, which is based on the personal and economic circumstances of the perpetrator; as a rule, "the net income that the perpetrator has or could have on one day" is to be assumed (Section 40 (2) of the Criminal Code). The minimum number of daily rates is five (Section 40 (1) StGB), the maximum number is usually 360 daily rates, with a total penalty 720 daily rates (Section 54 (2) sentence 2 StGB). The daily rate is at least two and a maximum of 10,000 DM (Section 40 (2) StGB). The fine to be paid is the product of the number and amount of the daily rates, i.e. a maximum of 3,600,000 DM or - in the case of total penalties - 7,200,000 DM become more transparent, at the same time the fine should be fairer, because victim equality is created for economically differently situated perpetrators. If the convicted person cannot be expected to pay the fine immediately, he or she is to be granted payment facilities (deferral, payment in installments) (Section 42 of the Criminal Code), possibly also retrospectively (Section 459a of the Code of Criminal Procedure).

The StGB does not provide for a suspension of the execution of the fine on probation. A similar effect can, however, be achieved in the area of ​​application of fines of up to 180 daily rates through the warning with reservation of punishment (§§ 59 ff. StGB).

If the fine is neither paid voluntarily nor can it be collected by way of foreclosure or if collection has not been carried out due to hopelessness, it is replaced by a substitute custodial sentence (Section 43 StGB). A daily rate corresponds to one day of imprisonment.The execution of this substitute custodial sentence can, however, be omitted if the court orders this due to "undue hardship" for the convicted person (§ 459f StPO). If the convicted person agrees, he can do charitable work instead of the substitute custodial sentence and in this way pay off the fine (Art. 293 EGStGB).

Back to overview Additional penalties Driving ban

The driving ban (Section 44 of the Criminal Code) is designed as a secondary penalty that can be imposed in addition to a custodial sentence or a fine. So far, the driving ban can only be imposed for acts that are committed while or in connection with driving a motor vehicle or in violation of the obligations of a motor vehicle driver. It is currently being considered to extend the driving ban as a secondary or even main punishment to all criminal offenses.

The driving ban is used to expressly warn drivers who still appear to be suitable for participation in traffic. In contrast to the withdrawal of the driving license (§ 69 StGB), a measure of improvement and security, which serves the purpose of removing unsuitable vehicle drivers from the traffic, the convicted person retains the driving license in the case of a driving ban. The secondary punishment consists in the prohibition of “driving any or a certain type of motor vehicle in road traffic” for a period of one month to three months.

Back to overview Property fine

This property penalty, designed as a secondary penalty of its own, is primarily intended to serve as a weapon in the fight against "organized crime". It is therefore intended for such offenses that are typically (also) committed by organized groups, such as narcotics crime, counterfeiting of money and stamps, human trafficking and pimping, theft, extortion, stealing, money laundering and gambling, provided that the offender is a member of the offense Gang committed. The court can then "in addition to a life or a temporary imprisonment of more than two years, the payment of a sum of money, the amount of which is limited by the value of the property of the perpetrator (property penalty)" (§ 43a Abs. 1 S. 1 StGB). The guilt principle, which also dominates the property penalty, means that, together with the imprisonment that is to be pronounced at the same time, it must not exceed the guilty measure.

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3.1.4 Side effects

In addition to the actual penalties, the StGB recognizes the loss of official capacity, eligibility and voting rights (§§ 45 ff. StGB) as well as the announcement of the conviction (§§ 165, 200 StGB) as side effects.

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3.1.5 Measures

The concept of measures (Section 11 (1) No. 8 StGB) summarizes the measures of reform and protection (Sections 61 ff. StGB), forfeiture, confiscation and rendering unusable (Sections 73 ff. StGB).

Back to overview Measures for improvement and security

Measures for improvement and security have to perform preventive tasks. To the extent that the punishment has also taken on preventive tasks, the boundaries between punishment and prevention have become blurred, which is confirmed by the regulations on the order in which punishment and measure are enforced (Sections 67 et seq. StGB).

Some of the measures are associated with imprisonment. Which includes:

  • placement in a psychiatric hospital (Section 63 StGB),
  • placement in a detention center (Section 64 of the Criminal Code),
  • placement in preventive detention (Section 66 StGB),
  • Measures without imprisonment are:
  • supervision of conduct (§§ 68 ff. StGB),
  • the withdrawal of the driving license (§§ 69 ff. StGB),
  • the professional ban (§§ 70 ff. StGB).
Placement in a social therapeutic institution has not been anchored as a measure. Rather, the legislature has chosen the "enforcement solution" (§ 9 Prison Act), according to which a prisoner can be transferred to a therapeutic institution with his consent if appropriate treatment appears appropriate.

In the area of ​​measures, the principle of proportionality (Section 62 of the Criminal Code) has the same limiting effect as is achieved in the case of penalties through the principle of guilt. All measures require a prognosis regarding the future danger of the perpetrator.

Back to overview Other measures

Other measures are in particular forfeiture and confiscation.

  • Through the forfeiture (§ 73 StGB) - including the extended forfeiture (§ 73d StGB) - an illegally obtained increase in assets is to be skimmed off. The prerequisite is the commission of an unlawful, not necessarily culpable act through which the perpetrator or participant either "obtains something for the act or from it" (Section 73 (1) sentence 1 StGB).
  • Objects that were "produced or used or intended for its commission or preparation" (Section 74 (1) of the Criminal Code) through an intentional act can be confiscated (Section 74 et seq. Of the Criminal Code).
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3.2 The current system of penalties in juvenile justice

Chart 2:

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3.2.1 Juvenile criminal law as a special criminal law for young people

With the Youth Courts Act (JGG) created in 1923, special criminal law for young offenders was created for the first time in Germany. The JGG in the version that has been in force since 1953 includes adolescents (14 to under 18 years of age) and adolescents (18 to under 21 years of age) based on the age at the time of the offense. The youth-specific legal consequences of the JGG, i.e. material youth criminal law, are only applicable to an adolescent if he is either "at the time of the act according to his moral and intellectual development" or if it is a matter of "youth misconduct" (§ 105 Paragraph 1 JGG).

The legal consequences system of the JGG consists of a delimited group of reaction agents, none of which are dependent on general criminal law (§§ 5 ff. JGG). The JGG knows three categories of formal legal consequences, namely educational measures, discipline and juvenile punishment. Furthermore, some of the side effects of the Criminal Code, in particular the issuing of a driving ban, and some of the reform and security measures (Sections 6, 7 JGG) are permissible in juvenile criminal law, which will not be discussed further below.

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3.2.2 The current system of legal consequences for juvenile criminal law Educational rules

Educational measures are not "because of", but the measures to be ordered "on the occasion of the crime", the purpose of which is not to punish the offense, but exclusively to educate the perpetrator. The JGG knows instructions (§ 10 JGG) and education help (§ 12 JGG) as educational measures.

  • Instructions are "commandments and prohibitions that regulate the lifestyle of young people and thereby promote and secure their upbringing". Examples include instructions that relate to the young person's whereabouts, as well as instructions to submit to the care and supervision of a specific person, to take part in a social training course or to try to find a victim-offender balance. Particular emphasis is placed on the instruction to undergo therapeutic educational treatment or an addiction treatment (Section 10 (2) JGG).
  • Parenting assistance or home education or upbringing in another form of assisted living (Section 12 JGG in conjunction with Sections 30, 34 Child and Youth Welfare Act) can be considered as support for upbringing.
Back to overview Breeding material

The JGG knows breeding materials as reactions of a punitive nature, namely the warning, the conditions and the youth arrest.

  • A warning is the formal denunciation of the wrongful act (§ 14 JGG).
  • Conditions are not only an increased form of warning insofar as the perpetrator is supposed to be responsible for the wrongful act through a service to be provided by him, but they also serve the satisfaction of the injured person. Conditions can namely be "to make good the damage caused by the act, to apologize personally to the injured person, to perform work or to pay a sum of money in favor of a non-profit organization" (§ 15 JGG).
  • The youth arrest as inpatient deprivation of liberty serves as a "reminder punishment". It can be imposed in the form of leisure detention, short detention (maximum 4 days) and permanent detention (minimum 1 week and maximum 4 weeks) (Section 16 JGG).
Back to overview Youth penalty

The youth penalty is the only real criminal penalty under youth criminal law. This "deprivation of liberty in a juvenile detention center" (Section 17 (1) JGG) can be imposed on the one hand "if, because of the harmful tendencies of the juvenile that have actually emerged, educational measures or disciplines are not sufficient for upbringing", on the other hand, " if a penalty is required because of the severity of the guilt "(Section 17 (2) JGG). Although it is a criminal punishment, the idea of ​​upbringing should play an essential role when it is imposed (Section 18 (2) JGG) and even a dominant role when it is enforced (Section 91 JGG).

The duration of the youth sentence is at least 6 months and (for young people) a maximum of 5 years, but if a maximum sentence of more than 10 years imprisonment is threatened under general criminal law, 10 years (Section 18 (1) JGG); in the case of adolescents, the maximum is 10 years in any case (Section 105 (3) JGG).

The JGG knows several suspended sentences: the suspension of the youth penalty, the suspension of the youth penalty on probation and the remaining suspension on probation. The so-called preliminary probation is based on judicial legal training. In the cases regulated by law, submission to the supervision and guidance of a probation officer (§ 24 JGG) during a probation period to be determined by the judge of a maximum of 3 (§ 22 JGG) or 2 years (§ 28 JGG) is mandatory. Instructions should be given and conditions can be given (Section 23 JGG).

  • The suspension of the youth penalty is possible if "after exhaustion of the investigation possibilities (cannot) be judged with certainty whether the criminal offense of a youth has harmful tendencies to the extent that a youth penalty is necessary" (§ 27 JGG) ; the judge can then determine the guilt of the young person, but suspend the decision on the imposition of the youth penalty for a period of time to be determined by him.
  • The execution of a juvenile sentence of no more than two years can with a favorable social prognosis ("if it is to be expected that the juvenile already let the conviction serve as a warning and even without the influence of the sentence execution under the educational influence in the probation period a righteous way of life in the future leading will ") be suspended (§ 21 JGG).
  • Furthermore, the execution of the remainder of the youth penalty can be suspended on probation (Section 88 JGG).
  • The so-called pre-probation within the meaning of § 57 JGG developed by judicial legal training is finally another form of probation sanction. The court then postpones the final suspension decision for a few months and places the juvenile under probation service for the time being in order to decide on the final suspension in accordance with Section 21 of the JGG in the event of probation.
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3.3 Informal sanction options in general criminal law (opportunity principle) and in youth criminal law (principle of subsidiarity) as a German variant of "Diversion"

The concept of "diversion" introduced into the criminal policy discussion in the 1960s means "diversion", "diversion" or "leading away" the offender from the system of formal social control. This is linked to various - personal and system-related - goals: avoidance of stigmatization of those affected by dismantling formal procedures, faster reaction so that the relationship between act and reaction is maintained, more flexible problem-solving aids for those affected, dismantling of excessive formal social controls, relief of the judiciary (cf. Heinz, Diversion im Jugendstrafverfahren, magazine for the entire criminal law science, 1992, p. 591 ff.).

Within the German legal system determined by the principle of the presumption of innocence, the principle of guilt and the principle of legality, the legislature has so far only considered diversification strategies to be permissible which either aim at the lowest possible state sanction (e.g. replacement of inpatient by outpatient sanctions) or alternatives to the indictment or lead to conviction (replacement of formal with informal sanctions). For this purpose, the procedural possibilities of setting the proceedings in the preliminary proceedings before the public prosecutor, in the interim judicial proceedings or in the main proceedings were used. The German variant of diversion therefore consists of discontinuing proceedings, which - if there is sufficient suspicion and if the process requirements are met - take the place of an indictment (public prosecutorial diversion) or a conviction (judicial diversion).

The discontinuation without conditions / instructions (§§ 153, 153b StPO, § 45 Abs. 1 JGG) is - from a criminal law perspective - a special preventive-oriented waiver of sanctions. In the social-scientific sense, however, it is an informal sanctioning, namely because of the investigative procedure carried out, the fact that the crime is regularly known in the family and in the social environment as well as because of the factual burden on the accused of continuing to be regarded as sufficiently suspect . Settings under conditions / instructions are also not penalties in the criminal law sense; rather, it is a matter of an amicable sanction, because the suspect voluntarily fulfills the conditions or instructions, so that their imposition by judgment is superfluous. In this respect, one can speak of sanctioning not only in the social science sense, but also in the criminal law sense.

Only with this consideration of the functions of §§ 153, 153a, 153b StPO, §§ 45, 47 JGG does it become clear that these are not just procedural regulations. Rather, they (also) belong to the legal consequences. Accordingly, the (youth) criminal reaction spectrum ranges from the - from a judicial point of view - unconsequential reaction (§ 153, 153b StPO, § 45 Paragraph 1 JGG) to the non-suspended imprisonment or juvenile sentence.

The German legal system currently provides for diversification options:

  • Diversion by the public prosecutor's office (StA) or court in proceedings for minor and moderate crime (§§ 153 ff. StPO). There are two main reasons for recruitment in practice:
  • Minor cases: In the event of a misdemeanor, i.e. criminal offenses that are not at least threatened with imprisonment of one year or more, the proceedings can be discontinued "if the guilt of the perpetrator is to be regarded as minor and there is no public interest in the prosecution" (§ 153 para. 1 StPO). The StA can also discontinue the proceedings in cases in which the court can waive punishment (Section 153b StPO). In both case groups, the StA requires the approval of the court, unless § 153 StPO is an offense that is not threatened with a minimum higher penalty, such as simple theft or fraud. The court has corresponding powers in every stage of the proceedings (Section 153 (2) of the Code of Criminal Procedure).
  • Discontinuation of fulfillment of conditions and instructions: If the matter is not a minor matter, so that there is fundamentally a public interest in prosecution, the StA can, with the consent of the court, in the event of an offense, nevertheless temporarily refrain from filing a public action subject to conditions or instructions if this is ordered is suitable "to eliminate the public interest in law enforcement, and the gravity of the guilt does not preclude it". As a condition, for example, compensation for damages, the payment of a sum of money in favor of a non-profit organization or the state treasury, as an instruction, the fulfillment of maintenance obligations. Here, too, offenses that are not threatened with a minimum higher penalty do not require the consent of the court. If the accused fulfills the conditions and instructions, the act can no longer be prosecuted as a misdemeanor (Section 153a (1) StPO). The court has corresponding powers in every stage of the proceedings (Section 153a (2) of the Code of Criminal Procedure).
  • Diversion for therapeutic purposes in proceedings against drug addicts (Sections 29 (5), 31a, 37, 38 (2) BtMG).
  • Diversion in private litigation (§§ 374 ff. StPO, § 80 JGG).
  • Diversion by the StA or court in proceedings against young people or adolescents (Sections 45, 47, 109 Paragraph 2 JGG), if the informal settlement is sufficient and suitable to achieve the special preventive goal of juvenile criminal law, namely - in contrast to general criminal law - regardless of the type or severity of the offense, i.e. also in the case of crimes (except for Paragraph 1)
  • According to Section 45 (1) of the JGG, the proceedings can be discontinued (in any case) without the consent of the court if the requirements of Section 153 StPO are met, ie if "the culprit's guilt is to be regarded as minor and not a public one There is an interest in the persecution ".
  • If an educational measure has already been initiated or carried out and the public prosecutor does not consider it necessary for the judge to participate or for a charge to be brought, he will also refrain from prosecution (Section 45 (2) JGG). A private or extra-criminal regulation of educational matters has priority over a judicial reaction, not only in the case of offenses, but also in the case of crimes. The subsidiarity of legal consequences under youth criminal law applies in particular in relation to "educational measures" by all carriers of informal social control, such as parents, neighbors, teachers, trainers, friends, etc., whose reactions can be functional equivalents to judicial reactions. This also includes measures "close to the judiciary", such as juvenile court assistants; A police "admonition" can also be considered. With Section 45 (2) of the JGG, the legislature rejected the idea that "anything" had to happen - at least outside the scope of Section 153 of the Code of Criminal Procedure - on the part of the StA in the sense of influencing the accused.
  • If the public prosecutor refrains from prosecution, regardless of the severity of the offense, i.e. also in the case of a crime, it has priority over a judge's appointment. If - out of justice - no "educational measures" have been carried out or initiated, the public prosecutor himself can create the prerequisites for refraining from prosecution, e.g. by means of a "warning talk" or by suggesting services, as the judge according to § 45 Paragraph 3 JGG can impose.
  • If either no educational measure has been taken or if the public prosecutor does not consider it to be sufficient in terms of special preventive measures, but if he does not consider bringing the indictment necessary, then he will ask the juvenile judge to issue a warning, enumerated instructions (work performance, perpetrator-victim compensation , Participation in traffic lessons) or of conditions (compensation for damage, personal apology, rendering of work, payment of a sum of money), if the accused confesses. If the juvenile judge complies with the suggestion, the public prosecutor will refrain from prosecution, provided that the conditions or instructions are met.
  • According to § 47 JGG, the youth judge also has corresponding powers after the indictment has been brought (including application for a decision in the simplified youth procedure according to § 76 JGG). The juvenile judge can finally stop proceedings in accordance with § 47 JGG if the accused is not responsible for lack of maturity.
The recruitment regulations under juvenile criminal procedure law were and are primarily based on the aim of avoiding stigmatizing effects and social discrimination for preventive reasons, as well as an unnecessary burden on the young people concerned in order to achieve the educational goal under juvenile criminal law - avoiding recidivism. The procedural economic aspects that have been emphasized in recent years - not only, but also - - relieving the burden on the criminal justice system and accelerating the process by dismantling unnecessary social controls and not prosecuting petty cases - took precedence over this. This is the main difference to the limitations of the principle of legality in general criminal law by §§ 153 ff. StPO, which initially focused on relief, acceleration, simplification and cheaper effects and, with regard to the avoidance of stigmatization, is more of a ( desired) side effect acted. Today, of course, the termination of proceedings in general criminal law is also placed at the service of the preventive tasks of criminal law. This is based on the insight that, for special preventive purposes, the fact that the perpetrator is being investigated for a criminal offense is often sufficient.

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Last update on 07/28/1999
Edited by: Martina Schulz