Double error
In criminal law, a double error is a constellation in which the perpetrator not only erroneously assumes that the actual prerequisites for a justification are met , but also errs about the scope of the justification.
example
After a marital argument, husband A goes into the cellar. After A comes back, wife B mistakenly assumes that A got an ax there (which actually does not correspond to reality) in order to kill her. When the door is opened, B shoots A directly in the heart in supposed self-defense without threatening it beforehand. She believed she was entitled to an immediate fatal shot.
Legal treatment
A double error is treated as a result of the rules of the prohibition error . Since the legal system would not allow immediate, fatal shots even in the event of a real attack (hypothetical self-defense test) (here in the example due to lack of necessity), the erring perpetrator cannot be any better than he would if his idea were correct. In this case, the perpetrator should not have acted according to the recognized grounds of justification anyway, since the legal system does not recognize such a right of self-defense , which is why he cannot be privileged by the error.
terminology
The term double error is questionable. The hypothetical self-defense test results in such cases already that certainly no permission offense error within the meaning of § 16 para. 1 sentence 1 is present Criminal Code, because even when accuracy of the perpetrators idea that so in the example actually vorläge an attack with an ax, the act would not be justified. Accordingly, there is only an error of permission within the meaning of § 17 StGB, i.e. an error about the limits of a reason for justification and not a double error.
Individual evidence
- ↑ Johannes Wessels, Werner Beulke: Criminal Law General Part. 37th edition. CF Müller Verlag, Heidelberg 2007, ISBN 978-3-8114-9220-2 , Rn. 485ff.
- ↑ Fritjof Haft JuS 80, 430, 588.
