Aberratio ictus
The aberratio ictus ( Latin deviation of the blow ) is a form of error in criminal law in which the success intended by the perpetrator occurs with an object other than the object he is aiming for.
General
The following example is characteristic: A wants to kill B and shoots; At that moment B bends down so that the ball hits the uninvolved C standing behind it. The legal consequence is that attempt criminality on targeted and negligence offense relating to the actually injured legal interest is concerned. The error is considerable as a subcategory of the factual error .
The aberratio ictus must be differentiated from the error in persona , which is also punishable by law , in which the perpetrator confuses the object of the crime due to a misidentification.
The aberratio ictus in the case of unequal legal interests
The aberratio ictus is unproblematic if the act realizes a different criminal offense than that pursued by the perpetrator. Example: The perpetrator shoots a person, but only hits the dog because his shot failed.
In such cases, only an attempted deliberate act on the targeted and, if a corresponding criminal provision exists, an accomplished act of negligence on the object of the offense come into consideration. In the example case, the perpetrator can only be punished for attempted manslaughter or murder , but not for killing the dog, since negligent damage to property is not punishable.
Something different would apply if the perpetrator had accepted the violation of the legal subject struck, and therefore acted with contingent intent ("one of the two"), because there would be no error here, so that a criminal offense could be punished for an accomplished deliberate crime.
The aberratio ictus for equivalent legal interests
It is controversial how a wrongdoing in the act is to be treated legally if the object of the crime hit and the target object are equivalent. Example: Instead of shooting the targeted arch enemy, the perpetrator shoots his friend who is standing next to him. Several theories have emerged to assess the legal consequences.
Equivalence theory / equivalence theory
Some of the criminal law literature assumes that an error is insignificant if the objects of the crime are equivalent. If the perpetrator meets someone other than the targeted person, according to this theory, there is an intentional offense. The perpetrator wanted to meet a person and did so. This view is known as formal equivalence theory.
Against this view it is argued that it does not make any distinction from error in persona . The latter is a pure motivational error, while in the former, the perpetrator is also mistaken about the actual causal process. In addition, this view contradicts the rules of objective attribution . The perpetrator cannot be held liable for any success because he wanted to bring about a success of the same kind. Rather, he should have expected the concrete success caused by his action to occur.
A modification of this theory, known as the material equivalence theory, uses the principles of the formal equivalence theory / theory of equivalence only in cases in which no highly personal legal interests (life, health, freedom and honor) are affected. If a highly personal legal asset is affected, the perpetrator is only punishable because of an attempt and a negligence offense. This is justified by the fact that in the case of a highly personal legal asset, the offender is concerned with the person. The intent is therefore more closely tied to the victim than in the case of acts that do not concern highly personal legal interests. With these, the intent is primarily aimed at the object, not the person behind it.
Against this modification it is argued that it does not solve the problem of the theory of equivalence, but only restricts it. Here, too, a resolution is constructed where none existed.
Adequacy theory
Another theory ( adequacy theory ) treats the aberratio ictus as a sub-case of the error about the causal process. The deviation is insignificant if it was foreseeable. In the case of an inadequate causal process, there is only an attempt and possibly an act of negligence.
This theory is criticized with the argument that no discrepancy occurred in the causal process. After all, the injury happened exactly as planned, just on the wrong object. So the deed went as planned.
Concretization theory
The prevailing opinion always regards the aberratio ictus as relevant. The perpetrator had specified his act on a specific goal, but did not hit it. Accordingly, the perpetrator cannot be punished for an intentional crime that has been committed. With regard to the hit object, he lacks intent ( Section 16, Paragraph 1 of the Criminal Code), with regard to the targeted object, there is no success. Thus, the offender can only be punished for attempting the targeted and possibly for negligence with regard to the object hit.
Exceptions to the prevailing opinion
According to the prevailing opinion , an exception to the principle that an aberratio ictus excludes criminal liability due to a completed deliberate act is given if the actual criminal offense also protects individual legal interests in addition to individual legal interests, but the deviation from the offense only protects individual legal interests. This can be relevant, for example, for the application of § 164 StGB ( false suspicion ), but also § 316a StGB ( robbery attack on drivers ).
literature
- Dreher , Tröndle , Criminal Code and ancillary laws , contributions to the science of criminal law, CH Beck, Munich 1995, § 16 no. 6th
- Sven Grotendiek: Criminal liability of the perpetrator in cases of aberratio ictus and error in persona , Europäische Hochschulschriften, Münster, Hamburg [u. a.], 2000, ISBN 3-8258-4546-X .
- Johann Mayr: Error in persona vel obiecto and aberratio ictus in self-defense , Frankfurt am Main 1992, ISBN 3-631-45073-7 .
- Claus Roxin : Criminal Law. General part. Volume 1: Fundamentals, the structure of crime studies. 3. Edition. Beck, Munich 1997, ISBN 3-406-42507-0 , pp. 436-441.
See also
Individual evidence
- ↑ a b Urs Kindhäuser : Criminal Law General Part . 6th edition. Nomos Verlag , Baden-Baden 2013, ISBN 978-3-8329-6467-2 , p. 224 .
- ^ Uwe Murrmann: Basic course in criminal law . 2nd Edition. Verlag CHBeck , Munich 2013, ISBN 978-3-406-64984-4 , p. 113 .
- ↑ a b Urs Kindhäuser : Criminal Law General Part . 6th edition. Nomos Verlag , Baden-Baden 2013, ISBN 978-3-8329-6467-2 , p. 225 .
- ↑ Hans-Ludwig Schreiber : Basic cases of "error in objecto" and "aberratio ictus" in criminal law . In: JuS . Verlag CH Beck , Munich 1985, p. 873-877 .
- ↑ Thomas Hillenkamp : The importance of specific intentions in the event of a different course of action . In: Göttingen legal studies . tape 85 , 1971, p. 108 ff .
