Parole parole

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In Germany, suspension on probation is a judicial measure of criminal law by which the execution of a custodial sentence is suspended and the convicted person is granted a probation period, after which the sentence is waived if well behaved. Suspended sentences are only to be imposed if it is to be expected that the convicted person will no longer commit a crime in the future. Parole suspension is regulated in Sections 56 ff. Of the German Criminal Code (StGB).

A special form is the pre- probation as suspension of the youth penalty for probation according to §§ 61 ff. Youth Courts Act (JGG).

Similar legal instruments in Austrian criminal law the related criminal indulgence and Swiss criminal law the suspended sentence .

terminology

The convicted person remains at liberty (or is released into the wild so far as it previously in custody was), but the real criminal is saying anyway. Contrary to what is often assumed or presented in the media, from a legal point of view, probation is not a type of penalty in addition to or instead of a custodial sentence ("suspended sentence"). The sentence is simply not carried out ; instead, the convicted person is given the opportunity to show within a specified time frame that he has not committed any further (in practice: similar) offenses. If he recidivates within the probation period , there is a risk that the sentence will be enforced.

The term “probation” can also include early release from prison with a positive social prognosis , referred to in the German Criminal Code (StGB) as “suspension of the remainder of the sentence” and regulated in Section 57  ff. StGB.

purpose

The sense of probation is linked to the theories of punishment . The probation suggests that the perpetrator is already using the conviction as a warning and will not commit any more criminal offenses in the future even without the influence of the prison system ( Section 56 StGB). Especially in the case of offenders who have no or hardly any socialization deficits, there is more the possibility of suspending a sentence on probation. After a partial sentence has been served, there is also the option to suspend a remainder of the sentence. In Germany, for example, criminals who are serving life imprisonment are regularly checked after 15 years in prison to determine whether the remainder of the sentence can be suspended, unless the conduct of the prisoner or the particular severity of the guilt with regard to the offense are in conflict.

Legal bases

The suspension of the prison sentence on probation is regulated in Germany in § 56 StGB. Probation within the meaning of Sections 56 ff. StGB is the suspension of a custodial sentence for probation. This means that the execution of a sentence is suspended and the convicted person remains at liberty.

If the convicted person does not have any reason to revoke the suspension of sentence during the probation period (e.g. by committing new offenses), the sentence will be waived after the probation period has expired.

Only prison sentences with a duration of up to two years can be suspended. The decision on this is made by the judging court . The ruling court has to make a prognosis as to whether it can be assumed that the offender will not commit any further criminal offenses in the future even without the execution of the prison sentence.

If the prison sentence is less than six months and the prognosis appears favorable, the sentence must be suspended for probation ( Section 56 (1) in conjunction with (3) StGB). In the case of imprisonment from six months to one year, the suspension depends, in addition to the availability of the prognosis, on the fact that the defense of the legal system does not require the execution of the sentence ( Section 56 (3) StGB). The idea of general prevention is therefore used here . In the case of prison sentences of more than twelve months up to two years , the sentence can be suspended on probation if the prognosis is favorable, the defense of the legal system does not conflict with this and there are also special circumstances ( Section 56 (2) StGB).

The suspension of a remainder of the sentence that is not lifelong takes place according to § 57 StGB, in the case of life imprisonment according to § 57a StGB. The decision is made by the Penal Enforcement Chamber of the competent regional court .

In very special cases, a warning with reservation of punishment can be issued under Section 59 of the Criminal Code . This is roughly equivalent to a suspended fine .

Design of probation

The probation period ( Section 56a StGB) is between two and five years. A probation officer can be appointed to the convicted person for this period . Regularly also be restrictions and instructions issued, for example, the message each change of residence , the obligation to compensation for damages which serve unpaid working hours for public interest purposes, payments to the state treasury or - with the consent of the convict - participation in an alcohol or drug therapy. The convicted person must regularly prove to the court that these obligations have been fulfilled.

If the instructions and conditions are grossly or persistently violated or if the offender commits further criminal offenses during the probation period, the probation can be revoked. Then the sentence is to be served in full. Otherwise, new - if necessary stricter - conditions or instructions are issued and the probation period is usually extended.

At the end of the probationary period, the sentence in accordance with Section 56g StGB is waived .

consequences

Probation itself does not affect the conviction. The convict continues to wear a stigma and has a criminal record . The conviction is recorded in the federal central register. This makes it easier for the law enforcement authorities to review criminal offenses during the probation period. So-called “parole failures” usually have a poor social prognosis for further crimes.

Revocation of suspension on probation

The revocation of the suspension of sentence is permissible according to § 56f StGB if the convicted commits a criminal offense during the probation period and thereby shows that the expectation on which the suspension was based was not fulfilled or the convicted violates instructions or conditions of probation. The revocation is also permissible after the probation period has expired in the case of crimes committed during the probation period, without there being a statutory maximum period within which a revocation of the suspended sentence for probation is still possible after the probation period has expired. The revocation must be made as soon as possible after a final decision on the criminal offense during the probationary period and this decision must also be made within a reasonable period of time, otherwise the revocation is inadmissible due to the principle of the protection of legitimate expectations . The court can also refrain from revocation if the convicted person considers less burdensome measures, in particular the imposition of further conditions or the extension of the probationary period, to be sufficient ( Section 56f (2) StGB). Sufficient does not mean that the original act is adequately sanctioned, but solely depends on whether there is reason to assume a favorable social prognosis even if the milder measures are imposed.

According to § 453 StPO, the public prosecutor's office and the convicted person must be heard before the decision to revoke the probation . In cases in which, for example, the convicted person is in hiding (escape), the convicted person does not have to be heard.

Web links

Wiktionary: Probation  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Higher Regional Court Hamm , judgment of May 10, 2016, Az. III-3 Ws 157/16.
  2. ^ Walter Stree , Jörg Kinzig in Schönke / Schröder , Criminal Code: StGB Commentary , 29th edition 2014, StGB § 56f, Rn. 27.