Election determination
The election determination plays a role in questions of the legal treatment of irresolvable doubts about the existence of the factual prerequisites for factual features. Inaccurate, it is presented as an exception to the principle in dubio pro reo .
If it is certain that the perpetrator has violated one of two criminal offenses, but it remains unclear against which of the two or by which specific act, he would have to be acquitted in the mutual application of the principle in dubio pro reo , because the perpetrator would be according to one variant unpunished. With in dubio mitius he only broke the milder law according to one of the two conceivable variants. In cases where the election was confirmed, however, the perpetrator committed one of the two acts of equal value.
A distinction is made between real and fake election determination.
Real election statement
The real electoral determination ( dissimilar electoral determination ) makes it possible, under certain conditions, to convict according to one or the other offense, without it being certain which of the two offenses is relevant. It must be certain that the perpetrator has violated a criminal law, but due to the alternative nature of the actions, it is not certain which law he has violated. An election determination presupposes, however, that the facts in question are legally, ethically and psychologically comparable. A choice between different alternative offenses for the same offense is unproblematic. An election determination z. B. between the acts of forgery or the making of use in the case of forgery according to § 267 StGB . A choice between incitement and perpetration is also conceivable, since the criminal energy is comparable. On the basis of legal, ethical and psychological comparability, the election determination for different offenses is e.g. B. between theft and receiving stolen goods , but is usually z. B. between serious robbery and receiving stolen goods are no longer permissible.
The conviction is optionally expressed in the judgment formula itself with alternative reasons ("either ... or ..."). This is done for reasons of legal certainty. The milder law determines the punishment "in dubio pro reo". Measures, ancillary penalties and side effects can only be pronounced if both laws allow them.
Fake election determination
In the case of a false election determination ( similar election determination ), the criminal norm implemented by the offender is certain. However, it is unclear which - of several possible acts - actually complied with this criminal offense. For example, it cannot be said with certainty which of several statements made was used to fulfill the offense of perjury ( § 154 StGB). The false election determination is only permitted within the framework of § 264 StPO : The possible actions must be determined. There must be no other, further possibility.
In a nutshell: The real election determination is based on the factual alternative (comparison of protected legal interests), the spurious election determination, on the other hand, is based on factual alternative (comparison of criminal action variants with identical facts).
Application of law
The necessity of the election determination is justified with a criminal policy need and the individual justice.
The critics of the election determination cite the constitutional principle of legal certainty in Article 103, Paragraph 2 of the Basic Law and the doubt in dubio pro reo .
The election determination was recognized by the Reichsgericht in 1934 , but initially only applied very cautiously and finally standardized in §§ 2b StGB and 267b StPO in 1935. In the Nazi era , the election determination was then sometimes used excessively. The regulations of § 2b StGB and 267b StPO were repealed in 1946 by the Control Council Act No. 11. Today the Federal Court of Justice is cautious in applying the election decision and has essentially returned to the line of the Reichsgericht from before 1935.
In a resolution dated January 28, 2014, the 2nd Criminal Senate of the Federal Court of Justice questioned the constitutionality of the election determination. He is of the opinion that the election determination violates Article 103, Paragraph 2 of the Basic Law, since it is not a procedural but a factual and legal criminal liability rule which must be expressly regulated by the legislature. In accordance with Section 132 (3) of the GVG, the 2nd Criminal Senate has therefore asked the other Senates of the Federal Court of Justice whether they want to adhere to their opposing legal opinion. If this were the case, the Grand Senate for Criminal Matters would have to decide on the question on presentation.
In response to this inquiry, the 1st Criminal Senate of the Federal Court of Justice ruled on June 24, 2014 that the dissimilar electoral determination does not violate Article 103 (2) of the Basic Law. He adheres to his established case law that the alternative (dissimilar) election determination is a procedural decision rule to which Article 103 (2) of the Basic Law does not apply.
By resolution of November 3, 2016, the 2nd Criminal Senate of the Federal Court of Justice again submitted the question of the constitutionality of the dissimilar electoral determination to the Grand Senate .
On May 8, 2017, the Grand Senate of the Federal Court of Justice decided to maintain the election determination (file number GSSt 1/17).
A constitutional complaint against the alternative law conviction for commercially committed theft or stolen goods was not accepted for decision by the Federal Constitutional Court on July 5, 2019 .
In the opinion of the court, the electoral determination does not close a substantive criminal liability gap, but only enables procedural gaps in knowledge to be overcome. The court also did not see a violation of the principle nulla poena sine lege . The judge takes the type and degree of punishment from a legally standardized criminal offense. In addition, he must always make the most favorable selection for the perpetrator. The court also saw no violation of the rule of law. Rather, it found that an acquittal, despite undoubtedly criminal conduct , would be contrary to the rule of law due to the multiple application of the principle of doubt itself.
Excursus (Switzerland)
In Switzerland the topic is dealt with under the term competition. A distinction is made here between real and fake competition.
The competition is inauthentic if the actual injustice or guilt content in one fulfilled criminal offense is also contained in another fulfilled criminal offense. A distinction is made between specialty (e.g. Arts. 114 to 111 StGB), consumption (e.g. Arts. 190 to 123 StGB), subsidiarity (e.g. Arts. 128 to 111 StGB), alternatives (e.g. Arts. 188 and 192 of the Criminal Code), as well as previous or subsequent criminal acts (e.g. knocking unconscious to kill afterwards). The qualified or more specific offense has priority.
The competition is real when the criminal offenses that have actually been committed show different levels of injustice and guilt. A distinction is made between ideal and real competition. Ideal means that one act results in several criminal offenses; Real means that several actions result in several criminal offenses, but nevertheless there is a unit of action. The offenses remain side by side, but the asperation principle applies: The starting point is the most serious criminal offense that has been committed and the penalty is increased accordingly when the sentence is determined (Art. 49 StGB).
See also
Individual evidence
- ↑ Wessels / Beulke , Criminal Law General Part , 40th edition, Rn. 805
- ↑ BGH , decision v. January 28, 2014, Az .: BGH 2 StR 495/12
- ↑ BGH , decision v. June 24, 2014, Az .: BGH 1 StR 14/14
- ↑ Federal Court of Justice. In: juris.bundesgerichtshof.de. Retrieved November 6, 2016 .
- ^ Resolution of the Grand Senate for Criminal Matters of 8 May 2017 - GSSt 1/17 -. Retrieved November 18, 2017 .
- ↑ LTO: BVerfG: The election determination is constitutional. Retrieved July 20, 2019 .
- ↑ 2 Senate 2nd Chamber Federal Constitutional Court: Federal Constitutional Court - Decisions - The election determination between (commercially committed) theft and commercial stolen goods does not violate the Basic Law. July 5, 2019, accessed July 20, 2019 .
