Actio libera in causa

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The actio libera in causa (abbreviation alic , Latin for literally “action free in the cause”) is a legal institute created by science and jurisprudence that is used in the context of the allocation of criminal guilt.

If the perpetrator is unable to see the wrongdoing of the act or to act according to this insight when committing the act, he cannot be punished in principle because he is not guilty in this state according to § 20 StGB. The unlawful realization of a criminal offense in a state of culpability should be according to the rules on a. l. i. c. but then lead to criminal liability if the perpetrator has already set a cause for his later actions and is therefore responsible for the act. The most common application is the intentional Sichbetrinken of the offender to the state of the full rush to commit the planned crime, because he thinks he can escape so the culpability for Insanity. In technical terms, the criminal liability results from the teleological reduction of the concept of action in Section 8 of the Criminal Code (bringing forward the time of action).

The underlying forms are actiones vel omissiones liberae in causa sive ad libertatem relatae - actions or omissions, the cause of which has been set free or which can be traced back to freedom - or actio libera in causa, sed non libera in actu - actions when they are caused ( in causa ) the perpetrator still acted freely responsibly, but no longer in the (later) execution itself ( in actu ).

The legal construction of a. l. i. c. because with it the accusation of guilt is moved forward by virtue of a mere fiction. This forward shift collides with the protected principle of nulla poena sine lege .

German law

Deliberate a. l. i. c.

Purpose of a. l. i. c.

According to Section 20 of the Criminal Code , anyone who, when committing the act, is unable to see the injustice of the act or to act on the basis of this insight, acts without guilt because of a pathological mental disorder , a profound disturbance of consciousness or because of feeble-mindedness or some other serious psychological abnormality. Due to the guilt principle underlying criminal law , offenders who acted innocently can not be punished.

The a. l. i. c. deals with the case in which the perpetrator intentionally put himself in a state of incapacity according to § 20 StGB before committing the act (e.g. by inducing intoxication) in order to be able to commit the act without guilt and without punishment in this state (so-called . deliberate alic). In both cases, the legal figure of a. l. i. c. in between and switches off § 20 StGB. The reason for this legal figure is, however, controversial.

Requirements for a. l. i. c.

The existence of an "actio libera in causa" is linked to certain and generally recognized requirements:

  1. A feeling of guilty incapacity.
  2. Committing a factual and unlawful crime in a state of culpability.
  3. The offender must have had intent with regard to 1. and 2. (so-called double intent). The intent must have already been given in the state of culpability.

Recognition of a. l. i. c.

Scope of validity and dogmatic justification of a. l. i. c. are highly controversial.

Incompatibility theory

A part of the German jurisprudential literature holds the legal figure of a. l. i. c. for incompatible with the principle of nullum crimen sine lege . The extension of the criminal liability beyond the wording of § 20 StGB is constitutionally not possible. A punishment is only possible after the offense of full intoxication according to § 323a StGB ( § 287 ÖStGB ), where the threat of punishment is, however, very low.

Exception theory

The a. l. i. c. constitutes an exception to the norm of § 20 StGB based on customary law. A perpetrator should not be protected if he tries to abuse a right of constitutional status in order to remain exempt from punishment. For these cases, the coincidence principle does not apply, giving a teleological reduction of § 20 justifies the Criminal Code. Against this it can be argued that an exception to the principle of coincidence, which is equivalent to the forfeiture of fundamental rights, is in itself unconstitutional. Proponents of this thesis, however, rely on the fact that the general part of the Criminal Code with regard to Article 103, Paragraph 2 of the Basic Law is not to be measured against the same standards as the individual special offenses of the special part. So it is not unconstitutional that the legislature has left the formation of individual guarantor obligations in the context of the omission according to § 13 paragraph 1 StGB to legal practice. However, there is a well-established jurisprudence of the Reichsgericht and Bundesgerichtshof , which, in their long tradition, now contradicts constitutional concerns, since it gives rise to at least a factual - albeit not legal - threat of punishment. However, even its founder Joachim Hruschka thought this solution was unconstitutional himself.

Expansion model

In the "extension model", which is often used, the commission of the offense within the meaning of Section 20 of the Criminal Code is extended to previous conduct relevant to guilt, directed towards the realization of the offense, which leads to incapacity for guilt (e.g. getting drunk). By expanding the concept of the act, this view succeeds, depending on the nature of the offense, in initiating a solution that is also compatible with Article 103, Paragraph 2 of the Basic Law. However, it is not compatible with the principle of coincidence, according to which the realization of the facts, illegality and guilt must really exist together in the commission of the act. In addition, it is not clear why the legislature wants to understand the expression "when the act is committed" further than in §§ 16 Paragraphs 1, 2, 17 of the Criminal Code.

Forward displacement theory / factual model

According to the forward displacement theory, the beginning of the act is shifted forward to the point in time of the intoxication. Because of this trick, the coincidence principle is preserved, because the time of the act is then that of the intoxication. This is very doubtful and leads to contradictions with the principles for determining the start of the experiment or the immediate start of the act ( Section 22 StGB). The beginning of the experiment is the intoxication. As a result, the threshold of criminal liability is already crossed with this behavior, which is not in itself punishable, with the result that, for example, the mere getting drunk to the point of incapacity to commit murder in this state , without any attempt at killing, has already attempted one Represents murder . Because of this, the forward displacement theory is rejected by large parts of the legal literature.

Doctrine of indirect perpetration or tool theory

In some cases it is also argued that the actio libera in causa is a special case of indirect perpetration . By " getting drunk ", the perpetrator makes himself his own indoleless tool. According to this approach, he is liable as an indirect perpetrator. According to this theory, too, the act of "getting drunk" is linked, which ultimately leads to the fact that the construction of indirect perpetration is actually just another justification for the forward displacement theory and can hardly be understood separately from it. This theory is countered by the fact that it carries out a purely legal division of one and the same person, which with § 25 para. 1, 2nd alt. StGB is not to be agreed ("by someone else", ie another person). Against this, the objection is that it is not a direct application of Section 25 (1), 2nd alt. StGB acts, but only a reference to the dogmatic model to justify a sufficient factual reference of "getting drunk" to the execution act. Even if one ignores this argument with psychological objections, the question arises why, in the event of a possible resignation of the culpable “crime investigator” from attempting the act, this should benefit the culpable “backer”.

Jurisprudence

The older case law followed the forward displacement theory.

In the case of behavior-related personal offenses, however, the 4th criminal division of the Federal Court of Justice has the application of a. l. i. c. Rejected in 1996. These include in particular road traffic offenses and statements offenses such as B. perjury . The Federal Court of Justice has emphasized that behavior can only be subsumed under a norm if this is compatible with its wording. The BGH further recognizes that “drinking” (or the act leading to incapacity) is not considered a criminal act if it is not “drinking” (but driving a motor vehicle, falsely swearing, etc.). However, the attitude of the court with regard to successful offenses (such as manslaughter, Section 212 of the Criminal Code) remains open . The reason for this is that such case constellations are extremely rare.

It is sometimes assumed that the Federal Court of Justice of a. l. i. c. insofar grants a right to exist. Other currents in legal literature believe in the statements of the Federal Court of Justice that there are considerable reservations about the right to exist of the a. l. i. c. and assume a rejection in principle.

The 2nd criminal division of the Federal Court of Justice made it clear in the year 2000 that the decision of the 4th criminal division from 1996 only concerns offenses of endangering road traffic and driving without a driver's license. A further restriction of the scope of application of the principles of the actio libera in causa is not to be recognized and also not to be expected.

Negligent a. l. i. c.

The negligent a. l. i. c. is not punishable.

If the exception theory is based on the offense that occurred directly while intoxicated, the criminal liability under Section 20 of the Criminal Code fails because the principles of intentional a. l. i. c. are not applicable to offenses due to negligence in the absence of necessity. This is because, in the case of criminal negligence, any behavior on the part of the perpetrator that preceded the success of the crime can be linked to, even if it was not intended to contribute to the crime.

If one follows the factual model or the tool theory and consequently sees the act of intoxication as the act, the objective predictability necessary for criminal liability is lacking. Because from § 323 a StGB it can be determined through systematic-teleological interpretation that the risk created by the perpetrator of committing an act while intoxicated is not sufficient for a negligence criminal liability. Otherwise the norm of § 323 a StGB would be superfluous.

Swiss law

Basics

According to Art. 19 Para. 4 StGB , the perpetrator does not act unpunished ( e contrario Art. 19 Para. 1 StGB) or does not benefit from mitigation ( e contrario Art. 19 Para. 2 StGB) if he “[…] is incapable of guilt or the reduction of the culpability [could] avoid and thereby [could] foresee the act committed in this state ».

Deliberate a. l. i. c.

The intent must relate to the degradation of the culpability and to the act; Eventual dolus is sufficient. Deliberate a. l. i. c. can also be assumed if the offender negligently gets into a state of intoxication, although he knows that in this state he is prone to a certain type of crime.

Negligent a. l. i. c.

The perpetrator did not consider the reduction of his culpability or the risk of an act of negligence to be committed in this state; he could have foreseen that in this condition he could commit an act of negligence. The general rules apply to the foreseeability of the later offense of negligence. It is not enough that the perpetrator could foresee any kind of offense; rather, in a state of full culpability, he must be able to foresee the commission of a certain offense. For negligent a. l. i. c. this also includes the case that the perpetrator, after inducing the reduced criminal liability, contrary to his duty, does not consider that he could commit a certain deliberate crime in this state and does so as a result. If the foreseeability is completely absent, that is, the act, which took place in the incapacity, could not have been foreseen, Art. 263 StGB may apply. The self-inflicted inducing insanity is punished, which makes the (intoxicating) act (crime or misdemeanor) committed in a state of intoxication a mere objective punishable condition.

See also

literature

  • Dreher / Tröndle : Criminal Code and subsidiary laws , CH Beck, Munich 1995, § 20 Rnr. 18-21.
  • Michael Hettinger : The "Actio libera in causa" - criminal liability for committing an act despite incapacity? : a historical-dogmatic investigation , Duncker & Humblot, Berlin 1988, ISBN 3-428-06492-5 .
  • Henning Leupold: The offense of pure success crimes and the factual model of the "actio libera in causa" in the light of constitutional barriers , Duncker & Humblot, Berlin 2005, ISBN 3-428-11914-2 .
  • Eberhard Schmidhäuser : The actio libera in causa - a symptomatic problem of German criminal law , Vandenhoeck and Ruprecht, Göttingen 1992, ISBN 3-525-86255-5 .
  • Heiko Übler: New developments in the field of actio libera in causa: the end of a traditional legal figure , University of Regensburg, dissertation, 2002.
  • René Zenker: Actio libera in causa: a paradox as a public claim to punishment in a constitutional state shaped by the principle of guilt , LIT-Verlag, Münster 2003, ISBN 3-8258-6578-9 .

Individual evidence

  1. ↑ Eschelbach: Beck'scher online commentary on the StGB , Ed. 10/2009, § 20 Rn. 71.
  2. ↑ cf. Bernd Heinrich : Scope and justification of the actio libera in causa Status: October 1, 2019
  3. ↑ Ambos, NJW 1997, 2296; Bott / Krell, ZJS 2010, 694 (697, 699); Hettinger, GA 1989, 13 ff .; Hruschka, JZ 1997, 24; Klescewski, para. 409; Kunz, JuS 1996, 40; Mutzbauer, JA 1997, 100; NK-Paeffgen, before Section 323a marginal no. 29; Paeffgen, ZStW 97 (1985), 516 ff .; Rath, JuS 1995, 405 (412); Rönnau, JA 1997, 715 f .; Schweinberger, JuS 1998, 191; Wolff, NJW 2007, 2032 (2033)
  4. ↑ Jescheck / Weigend, § 40 VI; Kühl, Section 11 marginal no. 18; Lackner / Kühl, § 20 Rn. 25; LK-Jähnke, 11th edition, § 20 marginal no. 78; Otto, § 13 Rn. 24 ff .; ders., JURA 1999, 218; see. also Krey / Esser, Rn. 710
  5. ↑ MüKo-Streng, 3rd edition, § 20 Rn. 128 ff .; Safferling, JA 2007, 183 (185); Streng, ZStW 101 (1989), 273; ders., JZ 1994, 709; see. also Frisch, ZStW 101 (1989), 538 ff .; Jerouschek, JuS 1997, 385
  6. ↑ BGH NJW 1997, 138 (140); see. Because preheating does not protect against punishment - the actio libera in causa
  7. ↑ Baumann / Weber / Mitsch / Eisele, § 17 Rn. 37 ff .; Elbow, JURA 1998, 485; Hirsch, NStZ 1997, 230; Hohmann, JuS 1995, 135 (136); Krause, JURA 1980, 169; Krell, ZJS 2010, 640 (644); Maurach / Zipf, AT 1, § 36 Rn. 54; Doll, JuS 1980, 346; Schlüchter, Hirsch-FS 1999, p. 345; see. also LK-Spendel, 11th edition, § 323a marginal no. 27 ff.
  8. ↑ on the intentional form: RGSt 73, 177 (182); BGHSt 17, 259; BGHSt 21, 381; BGH NStZ 1997, 230; OLG Schleswig NStZ 1986, 511; on the negligent form: RGSt 22, 413; BGHSt 2, 14 (17 f.); BGHSt 17, 333; BayOblG JZ 1967, 502; OLG Celle NJW 1968, 1938
  9. ↑ BGH, judgment of 22 August 1996 - 4 StR 217/96 = BGHSt 42, 235
  10. ↑ BGH, judgment of June 7, 2000 - 2 StR 135/00
  11. ↑ a b c Kudlich, Hans: Cases on criminal law, general part , 3rd edition, Munich 2018, p. 243 f.
  12. ↑ Kudlich, Hans: Cases on criminal law, general part , 3rd edition, Munich 2018, pp. 233, 244.
  13. ↑ Trechsel : Swiss Criminal Code, Practice Commentary , Art. 19 margin no. 22nd
  14. ↑ BSK-Bommer, Art. 19 margin no. 103.
  15. ↑ BSK-Bommer, margin no. 104; BGE 120 IV 169, 171 E. 2c.
  16. ↑ BSK-Bommer, margin no. 105.