Edition (justice)

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In the German judiciary, a condition is a sovereign order that obliges its addressees to perform. The law uses the term of the condition in different contexts: In criminal procedure law , criminal proceedings can be discontinued against compliance with a condition issued by the court. In juvenile criminal law , conditions are disciplinary substances that are imposed on the convicted person as a sanction. The Criminal Code deals with conditions in the context of suspension of parole : According to this, the order for parole can be linked to the issue of conditions.

Probation

In criminal proceedings, the court can suspend a custodial sentence by issuing a suspended order. According to Section 56b, Paragraph 1, Sentence 1 of the Criminal Code, the court can link probation to the fulfillment of one or more conditions. These serve to make satisfaction for the injustice committed: The perpetrator should help to restore the legal peace that he has disturbed by his act. For this purpose, the offender is sanctioned by conditions. The OLG Celle describes the purpose of the edition as a memo function.

The probation condition is closely related to the instruction within the meaning of Section 56c StGB. It differs from the instruction in that it does not aim preventively at improving the perpetrator, but rather repressively at reparation for the consequences of the crime. The distinction between requirements and instructions goes back to the 1962 draft penal code.

Possible contents of conditions

Section 56 (2) of the Criminal Code finally determines the content of the conditions. The courts are therefore prohibited from developing further types of requirements. For example, conditions that required the perpetrator to present his income or to leave the Federal Republic of Germany immediately were rejected.

The court can choose at its discretion between the types of conditions provided for in Section 56b of the Criminal Code . The content should be closely related to the act. Since the ordering of conditions encroaches on the freedom of the person protected by Article 2, Paragraph 2, Sentence 2 of the Basic Law , it must satisfy the requirement of certainty .

Making amends for the damage

Pursuant to Section 56, Paragraph 2, Sentence 1, No. 1 of the Criminal Code, the perpetrator can initially be obliged to make amends for the damage caused by his act, i.e. to pay damages or compensation to the victim of the act. The addressee of such a service may only be the person directly injured by the act, so that a condition in favor of someone who is not or at most indirectly injured is unlawful.

According to the prevailing view, a condition according to § 56 Abs. 2 S. 1 Nr. 1 StGB presupposes that the victim has a civil law claim to this benefit. It is irrelevant whether the claim is statute-barred .

As a rule, courts order that the perpetrator has to make a payment to the victim in order to make amends. However, the obligation to restitute in kind is also possible in accordance with Section 249 (1) BGB . This can be done, for example, by revoking a criminal statement.

Pursuant to Section 56b (2) sentence 2 StGB, the court should only impose conditions under Section 56b (2) sentence 1 No. 2–4 StGB insofar as this does not conflict with the reparation. The reparation of damage has priority over the other types of conditions.

Pay a sum of money to benefit a non-profit organization

According to § 56 Abs. 2 S. 1 Nr. 2 StGB, the court can still order the perpetrator to pay a sum of money in favor of a charitable organization. This form of edition is extremely common in practice. Non-profit organizations are those that act in the general interest; the tax law recognition as charitable is not necessary. Museums and associations are exemplary.

The amount of money is influenced by the wrongdoing, the severity of the guilt and the economic situation of the perpetrator. The court determines the recipient of the cash payment at its own discretion.

Provision of any other charitable service

According to § 56 Abs. 2 S. 1 Nr. 3 StGB, the court can order the perpetrator to provide a charitable service that does not consist of a monetary payment. Work in a hospital, sanatorium or nursing home can be considered as an example. Conditions according to No. 3 StGB are imposed, for example, if the convicted person has largely no assets or if a monetary payment does not provide sufficient satisfaction.

This type of requirement does not contradict the prohibition of forced labor and forced labor by Article 12, Paragraph 2 and 3 of the Basic Law, since these provisions only serve to prevent degrading forced labor.

Paying a sum of money in favor of the treasury

Finally, the court can order that the perpetrator pay a sum of money in favor of the treasury. The recipient is usually the country in which the sentencing court is located.

This type of requirement was subsequently added to Section 56b of the Criminal Code by the legislature in 1994, as the case law did not regard the state treasury as a non-profit organization. However, payment conditions should be given priority in favor of non-profit institutions. This requirement is therefore particularly relevant if there is a lack of suitable non-profit recipients.

Discretionary decision

The court decides at its own discretion whether to impose conditions. However, in accordance with Section 56b (3) StGB, it should refrain from imposing a condition if the convicted person voluntarily, i.e. without an order from the court, offers an appropriate service as satisfaction and if it is to be expected that he will perform this service.

Furthermore, the court may not impose any conditions, the fulfillment of which is unreasonable for the convicted person. This results from the general principle of proportionality , but is particularly emphasized by Section 56 (1) sentence 2 StGB.

Procedural matters

In accordance with Section 268a, Paragraph 1, Sentence 1 of the Code of Criminal Procedure, conditions are imposed by resolution and announced together with the sentence. The resolution must describe the content of the imposed conditions as precisely as possible. According to Section 268a, Paragraph 3, Sentence 1, the court instructs the convicted person about the requirements. A complaint against the decision is admissible according to § 305a StPO.

According to Section 56b of the Criminal Code, the court can also subsequently impose, change or revoke conditions. This presupposes that the circumstances of the facts change after the conviction or that the court only becomes aware of it afterwards.

In accordance with Section 453b of the Code of Criminal Procedure, the court checks whether the convicted person fulfills his / her requirements. Conditions cannot be enforced, i.e. enforced by force. However, if the convicted person grossly or persistently violates a lawful condition, the court revokes the suspended sentence in accordance with Section 56f, Paragraph 1, Sentence 1, No. 3 of the Criminal Code.

Conditions as breeding material

In juvenile criminal law, conditions are disciplinary substances . Section 15 (1 ) of the JGG provides for four types of conditions that have parallels in terms of content to the conditions under Section 56b of the Criminal Code: reparation for the damage, apologizing to the injured person, working and paying a sum of money in favor of a charitable organization.

Conditions when the criminal proceedings are discontinued

According to § 153a StPO , the public prosecutor's office can refrain from filing a public complaint and impose a condition on the accused.

The adjustment pursuant to § 153a Code of Criminal Procedure is merely in passing possible, so for offenses whose minimum sentence is less than one year of imprisonment ( § 12 para. 2 of the Criminal Code). It assumes that the competent court and the accused agree to the setting against conditions.

Numerous orders can be considered as the content of a condition within the meaning of Section 153a StPO. Section 153a, Paragraph 1, Sentence 2 of the Code of Criminal Procedure names several examples which, unlike Section 56b of the Criminal Code, are not conclusive. The catalog of § 153a StPO names the four types of conditions that are also mentioned in § 56b StGB. In addition, he lists the efforts to find a victim-offender balance and participation in a seminar on fitness to drive .

criticism

The flow of money through conditionality was declared a neglected topic in the mass media in 2013 by the Initiative News Enlightenment.

Individual evidence

  1. ^ OLG Rostock, decision of June 2, 2015 - 20 Ws 110/15 = New Journal for Criminal Law 2015, p. 663 f .; Karl-Heinz Groß: § 56 Rn. 2. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 2 : §§ 38-79b StGB. CH Beck, Munich 2016, ISBN 978-3-406-74602-4 . Heribert Ostendorf: Section 56 Rn. 1. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  2. ↑ OLG Celle, decision of July 4, 1989 - 1 Ws 195/89 = New Journal for Criminal Law 1990, p. 148.
  3. ↑ KG, decision of November 20, 2015 - 2 Ws 234/15 - 141 AR 475/15; Heribert Ostendorf: Section 56 Rn. 1. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  4. ↑ BT-Drs. 4/650 , pp. 200-203; Jutta Hubrach: Section 56b Rn. 2. In: Heinrich Wilhelm Laufhütte (Ed.): Leipzig Commentary on the Criminal Code. Vol. 1: §§ 32 to 55 . 12th edition. De Gruyter, Berlin 2006, ISBN 978-3-89949-231-6 .
  5. ↑ BVerfG, decision of September 7, 1994 - 2 BvR 598/93 = New Journal for Criminal Law 1995, 25; Karl-Heinz Groß: Section 56b Rn. 13. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 2 : §§ 38-79b StGB. CH Beck, Munich 2016, ISBN 978-3-406-74602-4 .
  6. ↑ BVerfG, decision of September 7, 1994 - 2 BvR 598/93 = New Journal for Criminal Law 1995, 25.
  7. ^ LG Landshut, decision of October 8, 2007 - 4 Qs 248/07 = The criminal defense lawyer 2008, p. 83.
  8. ↑ Jutta Hubrach: § 56b Rn. 2. In: Heinrich Wilhelm Laufhütte (Ed.): Leipzig Commentary on the Criminal Code. Vol. 1: §§ 32 to 55 . 12th edition. De Gruyter, Berlin 2006, ISBN 978-3-89949-231-6 .
  9. ↑ OLG Bamberg, decision of December 18, 2013 - 2 Ws 61/13 = New Journal for Criminal Law Jurisprudence Report 2014, p. 205; LG Bad Kreuznach, decision of August 9, 2012 - 2 Qs 69/12 = New Journal for Criminal Law 2013, p. 349.
  10. ^ LG Bremen, decision of October 12, 1970 - II Qs 444/70 = Neue Juristische Wochenschrift 1971, p. 153.
  11. ↑ OLG Hamm, decision of November 5, 1996 - 2 Ws 442/96 = New Journal for Criminal Law 1997, p. 237.
  12. ↑ OLG Frankfurt a. M., decision of December 10, 1997 - 3 Ws 973/97 = New Journal for Criminal Law Jurisprudence Report 1998, p. 126; OLG Stuttgart, decision of January 7, 1980 - 1 Ws 2/80 = Neue Juristische Wochenschrift 1980, p. 1114; LG Bremen, decision of October 12, 1970 - II Qs 444/70 = Neue Juristische Wochenschrift 1971, p. 153.
  13. ↑ OLG Hamm, decision of September 9, 1975 - 2 Ws 245/75 = Neue Juristische Wochenschrift 1976, p. 527; Heribert Ostendorf: Section 56 Rn. 7. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  14. ^ Karl-Heinz Groß: § 56b Rn. 21. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 2 : §§ 38-79b StGB. CH Beck, Munich 2016, ISBN 978-3-406-74602-4 .
  15. ↑ Jutta Hubrach: § 56b Rn. 14. In: Heinrich Wilhelm Laufhütte (Ed.): Leipzig Commentary on the Criminal Code. Vol. 1: §§ 32 to 55 . 12th edition. De Gruyter, Berlin 2006, ISBN 978-3-89949-231-6 . Heribert Ostendorf: Section 56 Rn. 10. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  16. ↑ Heribert Ostendorf: § 56 Rn. 11. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  17. ↑ OLG Cologne, decision of March 8, 2005 - 2 Ws 60/05 = Neue Juristische Wochenschrift 2005, p. 1671 (1672).
  18. ^ Higher Regional Court Nuremberg, decision of April 19, 1982 - Ws 312/82 = New Journal for Criminal Law 1982, p. 429.
  19. ^ Karl-Heinz Groß: § 56b Rn. 24. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 2 : §§ 38-79b StGB. CH Beck, Munich 2016, ISBN 978-3-406-74602-4 .
  20. ↑ BVerfGE 83, 119.
  21. ^ Karl-Heinz Groß: § 56b Rn. 26. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 2 : §§ 38-79b StGB. CH Beck, Munich 2016, ISBN 978-3-406-74602-4 .
  22. ↑ BGBl. 1994 I p. 3186
  23. ↑ OLG Cologne, judgment of November 8, 1966 - Ss 404/66 = Neue Juristische Wochenschrift 1967, 455.
  24. ↑ BT-Drs. 5/4094 , p. 12; Heribert Ostendorf: Section 56 Rn. 17. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  25. ^ Karl-Heinz Groß: § 56b Rn. 36. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 2 : §§ 38-79b StGB. CH Beck, Munich 2016, ISBN 978-3-406-74602-4 .
  26. ↑ OLG Stuttgart, decision of February 10, 1969 - 2 Ws 29/69 = Neue Juristische Wochenschrift 1969, p. 1220.
  27. ↑ Herbert Diemer: § 153a Rn. 13. In: Rolf Hannich (Ed.): Karlsruhe Commentary on the Code of Criminal Procedure . 8th edition. CH Beck, Munich 2019, ISBN 978-3-406-69511-7 .
  28. ↑ 2013: Top 1 - In donation robes: How judges distribute money from processes without control. In: initiative news education . Retrieved October 26, 2019 (German).