Objective attribution

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In German criminal law, objective attribution is a criterion for determining the factual nature of an act. The attribution of a factual success serves to limit the criminally relevant causality .

While the causality relates to the question of whether a certain behavior of the perpetrator "caused" the success according to scientific criteria in the sense of the conditio-sine-qua-non formula , the objective attribution concerns the question of whether the perpetrator is given a certain, Causally caused success can also normatively (ie by way of a legal assessment) be attributed as "his work" and can therefore punish him. For this purpose, it is checked whether the act was foreseeable and avoidable.

Doctrine of objective imputation

According to the theory of equivalence , a multitude of actions are causal for success. The doctrine of objective attribution serves as a corrective in order to limit the factuality and thus the criminal liability to the criminal offenses. This is especially true in the case of negligently caused success, as the law only punishes willful action ( Section 15 of the Criminal Code).

Success can only be objectively attributed if the perpetrator has created a legally disapproved danger through his behavior , which has been realized in the success that has occurred (so-called adequacy theory ). In this case, the specifically set risk has been realized in success. The predictability and avoidability of this criminal offense that has occurred is assessed on the basis of an objective, retrospective prognosis that takes into account the social role and special knowledge of the offender.

After that of Claus Roxin justified risk increase teaching the attribution is conducted even with an increase in the risk of successful entry by the offender behavior. The case law of the Federal Court of Justice does not follow this theory, since in it it restricts the set of doubts too much and understands infringement offenses contra legem as endangering offenses.

Lack of attribution

There is no attribution connection in the following case constellations:

The risk cannot be attributed exclusively to the perpetrator

  • Principle of personal responsibility: At a relevant risk creation by the offender lacks when the control over the infringement lies with the victims themselves. In the event of a self - responsible endangerment or an agreed endangerment of others, the victim himself had the opportunity to intervene in the course of the crime, which is why he is responsible for the success of the crime.
    However, the prerequisite for self-endangering oneself is that the perpetrator was not able to assess the situation better than the victim by virtue of superior knowledge or that the victim is particularly worthy of protection due to a lack of insight (children, weak will). Personal responsibility is sometimes only denied if the victim is incapable of     guilt .
    In the case of mutually agreed endangerment, the endangerment of the victim is indeed caused by the perpetrator, but with the consent of the victim. An example of this is the Memel case of the Reichsgericht , in which a passenger persuaded a ferryman, despite his refusal, to cross him over the Memel, which led to the floods, and drowned in the process. More recent examples are participation in so-called car surfing or the dispensing of drugs, after which the victim dies after consuming it. In some cases, jurisprudence comes to different conclusions by treating the victim's decision to surrender his or her legal interests as justifying consent . Thereafter, the objective attribution and thus the factuality does not apply. In the event of a fatal outcome, however, the illegality does not cease to exist either , since life is an indispensable legal asset and consent cannot be effectively given to a killing, or consent is immoral in the specific case.
  • Intervening by a third party: If a third party links up with a primary cause and eliminates its effect by opening a new causal series that alone brings about the success, the success of the crime cannot be attributed to the first offender. If, however, the third party only ties in with the action of the first offender, i.e. if this is the condition of his own intervention, the first offender also remains responsible for the success of the offense. Parts of the teaching deny this with reference to the prohibition of recourse that hinders attribution; attribution is only possible if the prerequisites for indirect perpetration ( Section 25, Paragraph 1, Var. 2 StGB) or complicity (Section 25, Paragraph 2, StGB) are met.
    As a matter of principle, the first offender is also attributed to the challenge cases , namely when a rescuing third party wants to eliminate or mitigate the consequences of the offense of the first perpetrator, but is himself harmed in the process. If the third party enters a house set on fire by the perpetrator in order to recover people or property trapped there and succumbs to smoke gas poisoning. The case is different, however, when it comes to professional rescuers such as fire service rescue workers who are legally obliged to intervene and voluntarily expose themselves to a (high) professional risk in the course of their work.

The perpetrator does not create a legally disapproved danger

A permitted risk or socially appropriate behavior is when a danger is created, but it is approved by the legal system. This typically includes dangerous behavior such as taking part in general road traffic if a fatal accident is caused despite compliance with all traffic regulations . In such a case, a general life risk is realized .

The perpetrator did not create or increase danger

The legally disapproved danger is also absent if a series of causes that has already been set in motion is slowed down and an impending success is weakened or delayed without the perpetrator creating a new, different danger to achieve this goal (risk reduction). In this case, the offender's actions serve the general interest in preserving legal interests protected by criminal law.

The danger created by the perpetrator did not materialize in the success that occurred

  • Case group of atypical causal processes : Even if the perpetrator has created a legally disapproved danger, the success cannot be attributed to him if its occurrence lies completely outside of what is to be expected according to the usual course of things and general life experience. Example: A injures B, which is why B cannot move from the scene and is struck by lightning there. The death of B cannot be regarded as the “work of the perpetrator”, rather it is “the work of chance”.
  • Case group of the lack of the protective purpose context : The protective purpose context is missing if the concrete success does not result in the legally disapproved danger, the creation of which is to be avoided according to the protective purpose of the standard. Example: T runs over a child who suddenly runs out onto the street in spite of proper behavior. T is only in this location at this point because he ignored a red light several kilometers earlier. The StVO norms, which prohibit the crossing of a red traffic light (§§ 37, 49 StVO), do not want to prevent T being at a certain place at a certain time, but protect cross traffic at the intersection in question. There is therefore no protective purpose connection between the red light violation and the run over of the child, so that the killing of the child cannot be attributed to the T, for example according to § 222 StGB.
  • Case group of lawful alternative behavior (lack of connection with non-compliance , avoidability theory ): Likewise, the success cannot be attributed if it would have been unavoidable in its concrete form even if the perpetrator had acted lawfully. In the case of offenses against negligence, one speaks in this context of the absence of a connection with a breach of duty. Such a case exists, for example, when a car driver overtakes a drunk cyclist with insufficient side clearance, gives him a fright due to his absolute inability to drive and ends up fatally under the overtaking vehicle. On the other hand, if the driver had kept the required safety distance, the drunk cyclist would have had an accident as well. In these cases, the representatives of the theory of increasing risk demand proof for impunity that the success would certainly not have occurred had the dutiful behavior occurred. A mere possibility is not sufficient for the application of the principle in dubio pro reo .

Application by the Federal Court of Justice

The Federal Court of Justice applies the doctrine of objective imputation only in cases of negligence. Parts of the teaching follow this on the grounds that negligence is a surrogate for intent; In the case of deliberate crime, the attribution of success is based solely on whether the perpetrator wanted the success and the manner in which the success occurred. Accordingly, the Federal Court reviewed the case of intent offenses in the subjective facts , whether the idea of the perpetrator covered by the act with the actual Tatverlauf. Because the intent of the perpetrator must also include the causal connection between the crime and the success of the crime. According to this, the success can be attributed to the perpetrator if his idea of ​​the act coincides with the course of the act or the deviation between the idea of ​​the perpetrator and the actual course of the act is within the limits of general life experience and does not justify any other assessment of the act. Example: someone throws an infant off the bridge so that it drowns in the river, but the child dies by hitting the bridge pier. According to general life experience, an infant thrown from a bridge can hit a bridge pillar and die as a result. The success is therefore subjectively to be attributed to the perpetrator.

If the act goes wrong ( aberratio ictus ) and if there is a mistake about the object of action ( error in persona vel objecto ), there are significant deviations in the causal process. The attribution of the success of the crime and the punishment for an intentional or negligent act are judged according to the special rules of the doctrine of error .

literature

  • Ingke Goeckenjan : Revision of the doctrine of objective attribution: an analysis of exclusionary topoi in deliberate successful crime , (Habilitation thesis, University of Osnabrück, 2013), Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-153454-6 .
  • Christian Jäger : Attribution and justification as categorical principles in criminal law , CF Müller, Heidelberg 2006, ISBN 978-3-8114-5236-7 .
  • Heinz Koriath : Causality and objective attribution , Nomos-Verlags-Gesellschaft, Baden-Baden 2007, ISBN 3-8329-2498-1 .
  • Heinz Koriath: Fundamentals of criminal attribution , University of Göttingen, habilitation thesis 1993, Duncker & Humblot, Berlin 1994, ISBN 3-428-08055-6 .

Web links

Individual evidence

  1. ↑ Bernd Heinrich : Objective attribution as of October 1, 2015
  2. ^ Murmann: Grundkurs Strafrecht , 2011, p. 151.
  3. ↑ Dreher / Tröndle : Criminal Code and ancillary laws , CH Beck, Munich 1995, before § 13 Rnr. 17 e.
  4. ↑ BGH 37, 127.
  5. ↑ Roland Hefendehl : The objective injustice: causality and attribution 2014/15
  6. ↑ BGH, judgment of November 4, 1988 - Az .: 1 StR 262/88 = BGHSt 36.1: unprotected sexual intercourse despite knowledge of an HIV infection
  7. ↑ Milan Kuhli: Objective attribution in the case of self-responsible self-harm? Considerations on the criminal liability of mountain running organizers for damage to competitors HRRS 2008, pp. 385–388
  8. ↑ RG, judgment of January 3, 1923 - Az. IV 529/22
  9. ↑ OLG Düsseldorf NZV 1998, 76
  10. ↑ BGH, judgment of April 11, 2000 - 1 StR 638/99
  11. ↑ for example Claus Roxin : criminal law. General part. (Part 1). 3. Edition. Beck, Munich 1997, § 11 Rn. 124
  12. ↑ BGH, judgment of November 20, 2008 - 4 StR 328/08 = BGHSt 53, 55: Participation in an illegal car race
  13. ↑ BGH, judgment of August 30, 2000 - 2 StR 204/00 margin no. 13 = BGH NStZ 2001, 29: a third person kills the victim who would also have died from the initial injuries; a third gives the victim who was injured with the intention of killing the "coup de grace"
  14. ↑ Jan Dehne-Niemann / Julia Marinitsch: On the application of a restrictive concept of crime and causation to multi-act killing events . In: Journal for the entire field of criminal law . tape 129 , 2017, p. 671 ff. with evidence .
  15. ↑ BGH, judgment of September 8, 1993 - 3 StR 341/93
  16. ↑ Helmut Satzger : The so-called "Rescue Cases" as a problem of objective attribution JURA 2014, pp. 695–706
  17. ↑ Wessels / Beulke: Criminal Law General Part , 2011, p. 276.
  18. ↑ Red light violations / General strafrebs.de, accessed on July 13, 2016
  19. ↑ BGH, decision of 25 September 1957 gG - 4 StR 354/57 = BGHSt 11, 1
  20. ↑ Bernd Heinrich : Lawful alternative behavior in the event of negligence as of October 1, 2017
  21. ↑ BGHSt 49, 1 = BGH, judgment of November 13, 2003 - 5 StR 327/03
  22. ↑ Jan Dehne-Niemann: lack of care and increased risk - for norm-theoretical reformulation of the theory of increased risk . In: Goltdammer's archive for criminal law . 2012, p. 93 f. with evidence .
  23. ↑ fundamental: BGH, judgment of April 21, 1955 - 4 StR 552/54 = BGHSt 7, 325
  24. ↑ last: BGH, judgment of December 3, 2015 - 4 StR 223/15 margin no. 12
  25. ↑ BGH, judgment of April 10, 1986 - 4 StR 89/86 = BGHSt 34, 53
  26. ↑ Roland Hefendehl: The attribution to intent in the case of causal deviations 2008/2009, KK 148 ff.