Aid (criminal law)

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In German criminal law, the term aid refers to a form of participation in a criminal offense . It is regulated in the general part of the Criminal Code (StGB) in Section 27 StGB. Aid is when someone willfully assists a perpetrator in the commission of a criminal offense.

Legal definition

For aiding and abetting in accordance with Section 27 (1) of the Criminal Code, "anyone who willfully assisted another in his willfully committed illegal act is punished." ( Legal definition )

Requirements for the main act

According to the wording of Section 27 of the Criminal Code, the assistant is only liable to prosecution if he has given "help to another person to intentionally commit an illegal act". This act of another, which the assistant supports, is called the main act . The same requirements apply to the main offense as in the case of incitement .

The main offense must also be an unlawful act for aiding and abetting . On the other hand, the main offender does not have to act culpably so that the assistant can make himself liable to prosecution (principle of limited accessority ). This is also evident from the wording of Section 27 of the Criminal Code (“on its intentionally committed illegal act”) and Section 29 of the Criminal Code, according to which each participant is punished according to his or her own guilt.

Aid treatment ("aid provided")

According to the predominant opinion, any act of the assistant that is suitable to promote the main offense should suffice for the aid treatment.

The aid treatment can take different forms, e.g. B. through active assistance ( physical assistance ) or motivational reinforcement ( psychological assistance ). It is controversial whether psychological assistance can also be provided by reinforcing the decision to act. The prevailing opinion affirms the possibility of psychological assistance by reinforcing the decision to act if this removes certain inhibitions in an otherwise firmly determined to act or dispels concerns about the execution of the act. In the literature, such a form of support is partly rejected because, in contrast to incitement, aid does not have to refer to influencing the perpetrator, but to the structure of the offense. In any case, there must be a foreign, unlawful main act, which is supported by the assistant.

Which behavior is regarded as sufficient for this “support” is controversial. The prevailing doctrine demands that the assistant's support must be causal for the success of the main act supported. The case law, on the other hand, allows it to be sufficient if the main act was promoted in some way by the assistance. The Federal Court of Justice (BGH) defines the assistance as follows: “This assistance does not have to have a causal effect on the commission of the main offense; What is required, however, is that it facilitates or promotes the main offense in some way at any point between the start of the experiment and the end. ”“ It is true that the mere presence at the scene of the crime with knowledge of a crime is not sufficient, even if it is approved, the acceptance of aiding and abetting in the sense of active action to justify [...]. Assistance within the meaning of Section 27 (1) of the Criminal Code can, however, also consist of the approval of the offense if it is expressed to the perpetrator and the latter is thereby strengthened in his decision to act or in his readiness to pursue him further and the assistant is aware of this (so-called psychological aid [...]) "" The mere presence at the crime scene with knowledge of a crime is not sufficient, even if it is approved "

In the most recent Nazi trials against guards at the former Nazi extermination camps such as John Demjanjuk or Oskar Gröning , the case law therefore considers it sufficient to have ensured a quick and smooth process of the selections and thus also facilitated and accelerated the subsequent killing processes in the gas chambers , without these actions in the sense of a concrete individual evidence for the occurrence of the later success of the killing in its concrete form having to have become causal in any way. All that is required is that the accused not only acted "somehow on the occasion of the extermination program", such as a doctor who was appointed to look after the guards and strictly limited himself to this task, but that he gave him specific actions with direct reference to the organized killing have to be proven in advance.

Aid through omission is also possible if someone is a guarantor and does not fulfill it.

Subjective fact

It is not necessary for the main perpetrator to be aware of it for the presumption of aid.

The assistant himself, however, must have a twofold participant resolution: The assistant's resolution must relate to both the main act of the other and his own act of aid.

Mandatory mitigation

The possible punishment for the assistant is based on that for the main offense ( Section 27 (2 ) sentence 1 of the Criminal Code). So there is no separate penalty or its own penalties for the aid.

The punishment threatened for aiding and abetting is, however, milder than for the respective main offense (section 27 (2 ) sentence 2 of the Criminal Code): although the scope of the main offense is the starting point, it is automatically reduced according to the scheme in section 49 (1) of the Criminal Code. This is called the postponement of the penalty framework due to compelling, typified punishment mitigation reasons or in short: compulsory punishment mitigation .

Special cases and individual cases

Attempted aid

The trial of aid ( tried aid ) is not punishable. So if you only try to promote a (completed or attempted) main act, you are (usually) not liable to prosecution. Only in the case of individual criminal offenses in which the aiding and abetting constitutes a separate offense (e.g. Section 96 (1) No. 1, Paragraph 3 of the Residence Act ) is the attempted aiding and abetting exceptionally punishable.

Aid to the attempt

On the other hand, assisting the assistant to attempt another (to the extent that it is successful and not only attempted) is punishable ( assisting in the attempt ). Because the ( illegal ) attempt by a main culprit is an illegal act. Thus, this attempt is a possible main act for an Aid promoting this attempt.

Example: aiding and abetting attempted fraud

One example is the (successful) aiding and abetting of attempted fraud. The act of deception by the main perpetrator aimed at fraud can end in an unsuccessful attempt even before completion . This attempt may have been supported by an assistant ( Section 27 (1) of the Criminal Code). An act is attempted by someone who, according to the conception of the act, immediately starts the realization of the offense ( § 22 StGB).

Due to the severity of the offense, which is broken down according to the sentence, fraud is not a crime ( Section 12 (1) StGB). However, it is an offense that makes the attempt a criminal offense under Section 263 (2) of the Criminal Code. According to Section 27, Paragraph 1 of the Criminal Code, an assistant is punished for who willfully assist another person in his willfully committed illegal act. This also applies to aid in attempting fraud. In this case, the criminal liability of the secondary offense is ancillary to the main offense of attempted fraud.

Aiding and abetting through neutral acts

It is controversial to what extent criminal aiding and abetting can be provided through outwardly neutral, in particular everyday or typical professional actions. The Federal Court has in its decisions of 14 July 2000 sentencing of two notaries and lawyers by the Oldenburg Regional Court confirmed to imprisonment and temporary prohibition of professional practice for complicity in fraud or the attempted fraud because their Tatbeiträge could not be regarded as a job-specific, neutral act , but they would have contributed to acts of deception in property law matters.

Aid after the fact

Aiding and abetting after the act refers to an act that is committed after the main act has been completed but before the main act has ended , in order to B. to help the perpetrator to secure the (unsecured) loot after a theft or to evade prosecution.

The criminal liability of such aid after the offense is regulated differently in different legal systems. American criminal law threatens aiding and abetting as such with punishment. The treatment is controversial in Germany. While the jurisprudence and parts of the literature assume a possible aiding and abetting in this case, another view rejects this (except in the case of permanent offenses such as deprivation of liberty).

Nevertheless, in any case - in contrast to the general facts of aiding and abetting after the offense - the independent offenses of favoritism ( § 257 StGB) and obstruction of punishment ( § 258 StGB) must be examined.

literature

Individual evidence

  1. ↑ a b c Hans Kudlich in: Beck'scher Online Comment StGB (BeckOK StGB), Ed .: von Heintschel-Heinegg, BeckOK StGB, 46th Edition, as of May 1, 2020, § 27 Rn. 2.
  2. ↑ a b c Hans Kudlich in: Beck'scher Online Comment StGB (BeckOK StGB), Ed .: von Heintschel-Heinegg, 46th Edition, as of May 1, 2020, § 26 Rn. 4th
  3. ↑ Hans Kudlich in: Beck'scher Online-Comment StGB (BeckOK StGB), Ed .: von Heintschel-Heinegg, 46th Edition, as of May 1, 2020, § 29 Rn. 1.
  4. ^ BGH, judgment of October 24, 2001 , Az. 3 StR 237/01, full text.
  5. ↑ Wolfgang Joecks / Jörg Scheinfeld , in: Munich Commentary on the StGB, 4th edition 2020, § 27 Rn. 18th
  6. ↑ BGH, judgment of November 16, 2006, 3 StR 139/06 para. 36, 40
  7. ↑ BGH, decisions on July 9, 2015 - 2 StR 58/15 , NStZ-RR 2015, 343, 344; from February 4, 2016 - 1 StR 344/15 , NStZ-RR 2016, 136, 137; Judgments of July 13, 2016 - 1 StR 94/16 , juris Rn. 24.
  8. ↑ See permanent case law ; BGH, judgment of January 16, 2008 - 2 StR 535/07 , NStZ 2008, 284 with further evidence.
  9. ↑ BGH, judgment of October 24, 2001 - 3 StR 237/01 , NStZ 2002, 139.
  10. ↑ BGH, decision of February 4, 2016 - 1 StR 344/15 , NStZ-RR 2016, 136, 137; see. also BGH, decision of December 22, 2015 - 2 StR 419/15 , BGHR StGB § 27 Abs. 1 Aid bars 34.
  11. ^ LG Munich II, judgment of May 12, 2011 - 1 Ks 115 Js 12496/08
  12. ^ LG Lüneburg 4th Large Criminal Chamber, judgment of July 15, 2015, 27 Ks 9/14, 27 Ks 1191 Js 98402/13 (9/14) marginal no. 56.57
  13. ↑ cf. BGH, judgment of February 20, 1969 - 2 StR 280/67
  14. ↑ Thilo Kurz: Paradigm shift in criminal prosecution of personnel in German extermination camps? ZIS 2013, 122–129
  15. ↑ BGH, decision of September 20, 2016 - 3 StR 49/16 para. 27, 28
  16. ↑ Criminal liability for aiding and abetting through omission? Channel partner. November 29, 2010.
  17. ↑ BGH, decision of November 17, 2011, Az. 2 StR 348/11 , NStZ-RR 2012, 58, beck-online
  18. ↑ Günter Heine / Bettina Weißer, in: Schönke / Schröder Criminal Code, 30th edition 2019, § 27 Rn. 19th
  19. ↑ Hans Kudlich in: Beck'scher Online Comment StGB (BeckOK StGB), Ed .: von Heintschel-Heinegg, as of: November 10, 2014, Edition: 25, § 26 Rn. 6th
  20. ↑ Bernd von Heintschel-Heinegg in: Beck'scher Online Comment StGB (BeckOK StGB), publisher: von Heintschel-Heinegg, 46th edition, as of May 1, 2020, § 46 Rn. 22nd
  21. ↑ Bernd Schünemann : Annotation , NStZ 1981, 143–144 (143, 144) [Annotation to: LG Hamburg: Statute of limitations for assisted murder ; Decision of January 16, 1981 - (90) 3/80 Ks - 147 Js 8/75 , NStZ 1981, 141-143].
  22. ↑ a b Kai Cornelius in: Beck'scher Online Comment StGB, Ed .: von Heintschel-Heinegg (BeckOK StGB), 46th Edition, as of February 1, 2020 § 30 Rn. 1.
  23. ↑ Kristian Kühl in: Lackner / Kühl StGB, 29th edition 2018, StGB § 27 Rn. 8th.
  24. ^ Klaus Hoffmann-Holland : Aid - Examination Scheme FU Berlin, accessed on December 22, 2017
  25. ↑ Günter Heine / Bettina Weißer, in: Schönke / Schröder Criminal Code, 30th edition 2019, § 27 Rn. 9-13.
  26. ↑ BGH, judgment of 14 July 2000, Az. 3 StR 454/99 full text, p. 11.
  27. ↑ BGH, judgment of July 14, 2000, Az. 3 StR 53/00 .
  28. ↑ Notaries convicted of aiding and abetting fraud. In: Press Release No. 52/00. Federal Court of Justice (press office), July 14, 2000, accessed on July 12, 2020 .
  29. ↑ BGH, decision of July 9, 1996, file number 1 StR 728/95 , NStZ-RR 1996, 374, beck-online.
  30. ↑ Günter Heine / Bettina Weißer, in: Schönke / Schröder Criminal Code, 30th edition 2019, § 27 Rn. 20th
  31. ↑ Wolfgang Joecks / Jörg Scheinfeld, in: Munich Commentary on the StGB, 4th edition 2020, § 27 Rn. 18th